Construction and Planning Update – July 2025 top five

Here are our top five for July:

1. Summer holidays

Say “swimming pool” to a construction lawyer and they will say “loss of amenity”. This is from a House of Lords case about a garden swimming pool with a depth of 6 feet. The contract was for a 7’ 6” depth. As the pool was a safe depth for diving, the breach of contract did not affect use and only loss of amenity was awarded. That meant damages totalling £2,500 instead of £21,000 for the costs of rectification.

The swimming pool in the Technology and Construction Court this month is in The University of Portsmouth’s sports facility, Ravelin Park, opened in 2023. Proceedings have been issued by the main contractor against the design subcontractors. The main contractor is seeking damages from the architect, and the engineering consultant. There are allegations relating to ponding on the pool roof and that remedial works caused delay in completion. Most cases don’t reach trial, but if this one does the judgement may be a poolside read by next summer.

2. Technology and Construction Court Guide

The Technology and Construction Court (TCC) Guide 2022 is under review. The Building Safety Act Working Group has submitted proposed amendments to address practical issues where proceedings rely on Part 5 of the Building Safety Act 2022 (BSA). Part 5 of the BSA primarily deals with claims related to remediation of defects and leaseholder protections.

The proposed changes to the TCC Guide include:

1. Clarifying the application of the Pre-Action Protocol for Construction and Engineering Disputes to BSA related claims;
2. Providing guidance on the use of alternative dispute resolution before and during proceedings for BSA related claims; and,
3. Providing a streamlined resolution process in respect of disputes where parties may be seeking different orders under the BSA.

Links:

Building Safety Act 2022

Technology & Construction Court Guide revision for applications or claims under the Building Safety Act 2022 – Courts and Tribunals Judiciary

3. Part 36 Offer on trial

In Matière SAS v ABM Precast Solutions Ltd [2025] EWHC 2030 (TCC), the parties were involved in a failed joint venture bid for a subcontract on the HS2 “Green Tunnels Project”. Matière sued ABM for unpaid fees. ABM counterclaimed, alleging Matière was in breach of express obligations of good faith.

Matière made a Part 36 Offer (offer) to AMB to settle the case. ABM did not accept the offer. Matière went on to beat its own offer at trial. The offer complied with the court rules, but was the offer a genuine attempt to settle the claim and the counterclaim? This was important in the context of the costs of the case. The judge held that the offer was a genuine attempt to settle the claim only.

For the claim, ABM was ordered to pay Matière’s costs on the “indemnity basis” from expiry of the 21 days for acceptance of the offer. For the counterclaim ABM was ordered to pay only “standard basis” costs. Given Matière’s cost budget for the case was £935,000 and its actual costs were around £1.8 million, the “standard basis” for the counterclaim is likely to mean significantly less recoverable costs. 

Link to case: Matiere SAS v ABM Precast Solutions Ltd [2025] EWHC 2030 (TCC) (31 July 2025)

4. Late payment and retentions – consultation

The government has announced a package of legislative measures to address late and disputed payments, particularly affecting small to medium-sized businesses. A public consultation has also been launched to gather feedback on the proposals.

The press release published on 30 July 2025 confirms “The new laws are set to give stronger powers to the Small Business Commissioner to empower them to wield fines, worth potentially millions of pounds, against the biggest firms who persistently choose to pay their suppliers late”.

There are also proposals further to amend the Housing, Grants Construction and Regeneration Act 1996. The options are to prohibit retention clauses or require protection of the retention. Currently industry standard retention protection clauses can be removed from the contract by agreement. This may happen due to commercial leverage. Without protection, on insolvency of the payer, the retention is not ringfenced for the payee; instead, the unpaid retention is available to pay creditors. A payee who loses retention risks cashflow pressures and possibly their own insolvency.

The consultation is open until 23 October 2025, with the government expected to publish the outcome within 12 weeks of closing or provide an explanation if this is not possible. 

Link: Time to pay up: Toughest crackdown on late payments in a generation unveiled in plan to back small businesses – GOV.UK

5. Planning consultation –Bath and North East area Developers take note!

The Council is proposing to introduce a new Supplementary Planning Document (SPD) to amend the current Planning Obligations in its Local Plan. The existing planning obligations were introduced in 2023. The proposed SPD will require developer contributions to GP Surgeries, SEND provisions, early years childcare facilities and school transport. The proposals are found in full here.

The new SPD will continue to require that developers agree to obligations, secured by unilateral undertakings and or Section 106 agreements where it is not appropriate or possible to impose conditions on development. As before, local planning officers will determine what is required on a site specific basis. Site specific obligations could be required for any development site, irrespective of size and so no threshold level will be set.