Construction and Planning Update – January 2026 – top five

Here are our top five for January:

1. About turn – termination for default under JCT D&B 2016

The Supreme Court has unanimously reversed a Court of Appeal decision concerning termination provision in the JCT Design and Build Contract 2016.

The contract provided that, if the Employer, Hexagon, did not make the payment by the final date for payment, then the Contractor, Providence, could give a notice of ‘specified default’. If Hexagon failed to pay for 28 days after the specified default notice, Providence could terminate the contract by a notice given within 21 days from the end of the 28 day period.

Providence served a specified default notice (clause 8.9.1) in relation to a 2022 non-payment. Hexagon paid before the end of the 28 day period, so the right to terminate the contract for non-payment was not triggered.

In 2023 Hexagon again did not pay. Providence served a notice under clause 8.9.4 purporting to terminate the contract on the basis that Hexagon had repeated a specified default, relying on the specified default notice served for the 2022 payment issue.

The court returned to what we believe to be the position understood by the industry. A contractor may not terminate the contract under clause 8.9.4 (repetition of a specified default) unless a right to terminate the contract under clause 8.9.3 has previously been reached for an earlier same default. In this case as the 2022 payment was made during the 28 day period under the specified default notice, the right to terminate had never accrued. The notice terminating the contract for a repeated default was therefore invalid.

Link: Providence Building Services Limited (Respondent) v Hexagon Housing Association Limited (Appellant)

2. Assignment of right to adjudicate

Enforcement of an adjudicator’s decision was resisted on the grounds that the referring party was not the Employer named in the contract.

The contract was entered into between Office Depot International (UK) Limited (ODI) and FK Facades Limited (FK), for roofing works in Greater Manchester. The contract was subsequently assigned by ODI to OT Group Ltd (OTG) and later from OTG to Paragon. The issue was whether as an assignee of the Contract Paragon was entitled to refer a dispute to adjudication.

The contract identified “the Employer” as ODI and “the Contractor” as FK. FK argued that as an assignee Paragon was not a party to the Contract and had no right to adjudicate.

The court found in favour of Paragon; Paragon could adjudicate against FK notwithstanding that Paragon was an assignee, but the court acknowledged that it was a “finely balanced” point.

The judge referred to “the difficulties which would arise if the only way an assignee could adjudicate a claim was by forcing or persuading the assignor to lend their name to an adjudication against the other original party. That is potentially fraught with difficulty and delay. I accept that it might be said that this is a risk which any assignee in the construction sector ought to be aware of and/or take steps to protect itself against, given that by s.136 LPA 1925 the assignee is given all legal remedies for the legal right to the thing in action. I accept that it might also be said that, since an assignee can always sue in court, this is no more a problem than if the original party had to sue the assignor in court. Nonetheless, in my opinion it would appear to have been unlikely that the parties would have envisaged that the rights of any assignees would be subject to such a significant limitation due only to what, I am satisfied, is an unintended drafting consequence of the Scheme.”

Link: Paragon Group Limited v FK Facades Limited [2026] EWHC 78 (TCC) (20 January 2026)

3. Practising in Wales? Read on

In January the Welsh Government issued a circular relating to higher-risk buildings. The Building (Higher-Risk Buildings Procedures) (Wales) Regulations 2025 and the Building Safety Act 2022 (Commencement No. 6) (Wales) Regulations 2025 come into force in July 2026. There are multiple new requirements and processes to be considered so early preparation will be key.

Link: The Building (Higher-Risk Buildings Procedures) (Wales) Regulations 2025 and related regulations (WGC 002/2026) [HTML] | GOV.WALES

4. Not another one – enforcement of an adjudicator’s decision

The Claimant asked the Technology and Construction Court to enforce a decision for payment of £102,656.67.

The Defendant resisted enforcement alleging breaches by the adjudicator of the rules of natural justice, that the adjudicator took a point that had not been argued by either party and failed to consider undisputed evidence and made an arbitrary reduction from the notified sum.

Adrian Williamson KC sitting as a Deputy Judge of the High Court granted summary judgment in favour of the Claimant, finding, “…….In fact, standing back from the detail, this is a classic case of a losing party seeking “to comb through the adjudicator’s reasons and identify points upon which to present a challenge under the labels “excess of jurisdiction” or “breach of natural justice”. Moreover, “The task of the adjudicator is not to act as arbitrator or judge…The task of the adjudicator is to find an interim solution which meets the needs of the case.” That is what this adjudicator did.”.

Link: Project One London Ltd v VMA Services Ltd [2025] EWHC 3304 (TCC) (18 December 2025)

Cases like this underline that unless there is a substantive – or tactical – ground to challenge enforcement, the strong likelihood is that a decision will be enforced. Bear in mind too that the considerable costs of unsuccessfully resisting enforcement are likely to be paid by the resister.

5. New Towns

You may have seen BBC’s recent Question Time from Macclesfield. There was a heated discussion about Adlington, one of the 12 New Towns. The need for housing is uncontroversial but the siting of New Towns is causing upset, in the case of Adlington for the reasons in the December petition (link below). In January 2026 the Housing Committee records that it is to question the Chair of the New Towns Taskforce about “how the 12 new town locations were identified and under what criteria they were assessed. MPs are also expected to examine the degree to which local leaders were consulted and explore potential tensions between ambitious housebuilding targets and the aspirations for high quality new towns.”

Link to the Adlington petition opposing the development: Proposed new town in Adlington, Cheshire – Hansard – UK Parliament