Construction and Planning Update – April 2025 top five

Here are our top five for April:

1. Contract by WhatsApp

In April, an adjudicator’s decision that a construction contract had been formed via an exchange of Whatsapp messages was enforced. The court held that “the exchange of Whatsapp messages, whilst informal, evidenced and constituted a concluded contract”.

One of the other primary issues in the adjudication was whether the contractor’s invoices were valid payment applications. The court considered the validity of the invoices and concluded that “all four invoices set out sufficiently the basis for the amount claimed”. It was however held that only three invoices were valid as the Contractor was only entitled to render one invoice per month.

This case demonstrates that individuals should be mindful of any informal communications which could result in a binding contract and issue payment applications strictly in accordance with the contract.

Link to case: Jaevee Homes Limited -v- Steve Fincham (trading as Fincham demolition) HT-2024-000423 High Court Judgment Template 

2. VAT reverse charge guidance

On 2 April 2025 a manual was published by HMRC on the VAT reverse charge for building and construction services. This is supplementary to HMRC’s earlier guidance published on 24 September 2020. The manual provides details of how the construction reverse charge works, who needs to apply the construction reverse charge and provides additional guidance in relation to the following:

1. The optional 5% disregard;
2. The application of the reverse charge in specific cases; and
3. The exception for supplies to end users.

VAT Reverse Charge for Building and Construction Services Manual – HMRC internal manual – GOV.UK

3. Access to Building Control Certificates

A Building Control Certificate (BCC) can be relevant to defects claims. Mr Whiteside (MW) wanted to see the BCC for a block of flats in Croydon. He was refused a copy of the BCC by the Council and so complained to the Information Commissioner (IC). The IC reasons for refusal included that the occupants of the property would not reasonably expect the BCC to enter the public domain. The tribunal held that the IC refusal was right.

A couple of extracts from the decision:

“The information is personal data and ….. it is not necessary for the Final Certificate to be disclosed given the other information published and the other avenues of complaint.”

And in relation to MW’s legitimate interest for disclosure argument:

“….we are not satisfied that there is a legitimate interest in disclosure on account of any specific failure in the final certification process for this specific property nor that as a consequence of such failures the Council has sought to avoid scrutiny.”

We tend to agree with MW that BCCs should be publicly available, given they relate to public safety.

There are other routes to consider to try to obtain a relevant document, such as a pre-proceedings disclosure application under Civil Procedure Rule (CPR) 31.16 or (after proceedings have started) orders for disclosure against a person not a party to proceedings (CPR 31.17).

Link to case: Whiteside v Information Commissioner [2025] UKFTT 442 (GRC) (25 April 2025)

4. Planning appeal times

Making a decision as to whether or not to appeal a planning issue is not often driven by speed, but it is one factor to take into account. The development of land is a long-term activity but some certainty as to how quickly you get through the planning process is an enormous benefit.

In April the Planning Inspectorate published an update of its official statistics which included a table for the median decision times relating to different types of appeal.

Those figures showed a recent dip in the time taken to reach a decision over the last two months, however generally the reading is gloomy. As an average over the last 12 months to March 2025 enforcement appeals by written representations took 55 weeks to conclusion, enforcement appeals by hearing took 57 weeks and by inquiry 47 weeks. Planning appeals by written representations or hearing or inquiry took just over half this time.

The evidence suggests the Planning Inspectorate deals with Planning Appeals far faster than it does Enforcement Appeals. Not entirely surprising in view of enforcement often requiring a development activity be undone or remediated.

5. High rise buildings – help on hand

The link below is to several CLC guidance notes to help those involved in procurement of high rise buildings navigate the complex requirements from and ancillary to the Building Safety Act 2022: Higher Risk Buildings Building Control Approval Applications – Construction Leadership Council. We understand the challenge and are here to help too!