Construction and Planning Update – Christmas Edition

1. Sleeping safely – protecting rough sleepers

Do you have bins or bin stores in areas where rough sleepers or party goers who can’t make it home may seek refuge?

HSE has issued guidelines to prevent injuries and fatalities to those who seek refuge from the cold in commercial waste bins and communal bins.

Prevention: it is waste producer or waste manager’s duty to locate bins in a secure area and follow supplier’s instructions for bin security devices and ensure bins and devices are properly maintained. Relevant employees should be instructed as to actions required to prevent and minimise the risk of people getting into the bins. Employees should report any signs of people getting into the bins.

What should we do?

Check inside bins and look for any obvious signs of disturbance and look for any unexpected items, such as a sleeping bag, blankets, or bags. Tap and/or bang on the bins before emptying. Give a person chance to wake up and react. If there is someone in the bin, give them room to leave the area. Depending on your firm’s policy, show some goodwill and allow them to leave unchallenged, or get help if there is concern for their welfare.

Let’s keep each other safe.

Link to the guidelines: Preventing people getting into large waste and recycling bins – HSE

2. Safety when working at height

Another case to remind us of the vulnerability of people working at height and the need to plan work so as to minimise the risk.

A roofing company has been fined £16,650 for failing to comply with Section 3(1) of the Health and Safety at Work etc Act 1974, after an employee fell through a skylight opening. An employee was working on replacement of a flat roof of a single storey extension at a domestic property in Northampton. The employee was removing covers from two large skylight openings as part of preparation, when he fell through one of the openings whilst removing material from the other. His injuries required surgery and long-term treatment.

An investigation by the Health and Safety Executive (HSE) found that Kingsley Roofing Contractors Limited failed to properly plan work at height activities and to implement measures that would have prevented their employee from falling through the skylight openings. Kingsley Roofing Contractors Limited pleaded guilty to breaching Section 3(1) of the Health and Safety at Work etc Act 1974. The company was fined £16,650 and ordered to pay £7,205 in costs and £2,000 victim surcharge.

There were two other roofing cases reported on the HSE website in early December, one involving an injury to a 20 year old apprentice. If it is a while since you last reviewed your working at heights policy or circulated it to your employees, please put this on your to do list for the New Year.

Link to HSE press release: Roofing company fined £16,650 after employee fell through skylight opening – HSE Media Centre
Link to Working at Height Regulations: The Work at Height Regulations 2005

3. In the Technology and Construction Court

In a project for the multi-million pound Hive in Worcester, protective proceedings were issued on 26 January 2024. Protective proceedings are used to prevent a claim becoming barred by time under limitation law. The claimant then has four months to serve the claim form on the defendants. That a claim is about to be barred by time is one exception to the requirement to follow pre-action steps before starting litigation.

On 22 May 2024 the proceedings were stayed (put on hold) until 22 February 2025 for the parties to comply with the usual pre-action steps. The parties were ordered to attend a without prejudice meeting by 22 November 2024. Time for the without prejudice meeting was extended up to the end of March 2025.

The four month period for service of the claim form ended on 26 February 2025 because 3 months and 26 days had already passed between 26 January 2024 (the issue of proceedings) and the 22 May 2024 order to stay the proceedings. The claim form was not served by 26 February 2025.

Civil Procedure Rule 7.6(3)(b) was applied:

(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 (the four month period) ……, the court may make such an order only if –
(a) the court has failed to serve the claim form (not applicable here) ; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the application.

Extract from judgment: “it seems to me impossible for the Claimant to establish that it was unable to serve the claim form, and indeed it is difficult to say that it took all reasonable steps to serve the claim form when it took no such steps. Thus [Civil Procedure Rule] 7.6(3)(b) is not satisfied and the court does not have power to grant such an extension of time”.

The upshot is that if the claim was in fact time barred, the claimant could not start proceedings about the claim again; the substantive claim was defeated by the application of the Civil Procedure Rules.

Link to the judgement: Galliford Try Construction Ltd v Arcadis Consulting (UK) Ltd & Ors [2025] EWHC 3002 (TCC) (14 November 2025)

4. AI in planning

According to a Guardian piece in November the use of AI drafting tools such as ChatGPT are increasingly playing a part in levelling the playing field between developers and local residents with the latter using the tools to help compile objections to planning applications. The AI tools are used to scan planning documents, identify alleged breaches of policy, and draft objection letters, speeches and even for presentations to planning committees. Advocates for AI argue this makes the system less weighted in favour of those with professional advisors, others are warning of an increase in false caselaw being relied upon.

The issue that really flows from this usage will only become obvious if permissions start being granted on the back of fake precedents or incorrect information presented as facts by the Large Language Models to the lay person users.

5. NEC goes digital

Like JCT Contracts, NEC Contracts are now available in digital form. To access the NEC Contracts, go to NEC Digital | Products | NEC Contracts