Here are our top five for this November:
1. Quality of new homes: The closure of the ‘Office for Place’ https://www.gov.uk/government/organisations/office-for-place was announced in November: Written statements – Written questions, answers and statements – UK Parliament. The government wants to bring focus on the quality of new homes back into government and via the planning system. The government plans to update the National Design Guide and National Model Design Code in 2025 and deliver a £46 million package of support to local authorities, to include recruitment and training of town planners with a goal to delivering more high quality, well designed homes on large scale sites and in new communities.
It is to be hoped that the government will also produce the regulations for 15 year new home warranties in section 144 of the Building Safety Act 2022. The Building Safety Act 2022 (Commencement No. 4 and Transitional Provisions) Regulations 2023 brought section 144 into force for the purpose of making the regulations about new homes warranties, but no regulations have been produced yet as far as we are aware.
2. Mediation: The Civil Procedure Rules 1998 have been amended 176 times. The 174th amendment came into force on 5 November 2024 and applies to claims made after that date. It amends Practice Direction 51ZE: Small Claims Track Automatic Referral to Mediation Pilot Scheme. Claims to which the pilot applies are automatically referred to mediation provided by the Mediation Service. Effective mediators can unlock disputes that seem impossible to settle due to the intransigence of one or more of the parties, or due to the difficult subject matter. It is to be hoped that this pilot will see settlement at an early stage of many low value, often distressing cases that are of great importance to the parties. That said, we note that the pilot does not apply to road traffic accident or personal injury claims.
For construction cases in the Technology and Construction Court (TCC), mediation is encouraged by the court. However, if a party unreasonably refuses to mediate the only penalty is in costs; the court cannot compel mediation. The TCC offers its own mediation, the Court Settlement Process. Details are at Appendix G of the TCC Guide, 2022 edition here: https://www.judiciary.uk/wp-content/uploads/2022/10/14.128_The_Technology_and_Construction_Court_Guide_WEB.pdf
3. New standards: On 27 November, the British Standards Institution (BSI) released its updated fire safety guidance BS9991:2024 which now supersedes the old guidance published 9 years ago. BS9991:2024 features an expanded scope to include residential care homes, the expansion of guidance relating to evacuation lifts, and revised height limits for sprinkler installation and single-stair buildings. The revised edition is touted to include “significant updates” to reflect the “increasing complexity of modern building designs” as well as the industry’s evolving knowledge and understanding of fire behaviour, materials, and fire safety systems. We have not yet had sight of the new wording but it is undoubtedly going to shape the way a wide range of professionals approach the design of new structures, as well as material alterations, extensions, and changes of use to existing buildings.
4. Storeytime: there has been comment in the legal and local government press this month about a decision of the First Tier Tribunal (FTT) in October. This is the first mention of the FTT in our ‘Construction Top 5’.
In case LON/00BG/HYI/2023/0024 the FTT considered whether a roof garden was a storey of a 2018 block of flats in London called Smoke House & Curing House, such that the building was a higher risk building (18metres/at least 7 storeys + 2 or more residential units) (HRB) under Part 4 of the BSA 2022 and therefore also a relevant building (11 metres high/5 storeys + 2 or more residential units) under section 117 of the Building Safety Act 2022.
This was important as if a relevant building, an application for a remediation order could be applied for under section 123 of the BSA 2022. A remediation order requires a relevant landlord to remedy specified defects by a specified time, so it is a powerful remedy. The FTT made a remediation order in this case. It is interesting that the applicant could not persuade the FTT:
a. that the FTT had power to prevent a particular contractor from carrying out the remedial works; or
b. to award costs in favour of the leaseholder who made the application to the FTT.
The decision that the roof garden was a storey is inconsistent with guidance issued by the Ministry for Housing, Communities and Local Government, which states: “A storey must be fully enclosed to be considered a storey. The roof of a building should not be counted as a storey. Open rooftops such as rooftop gardens are not considered storeys and should not be counted as such when determining the number of storeys or measuring the height.”
The FTT noted the guidance but found this did not match the legislation. The Government has issued a response adding a note to the guidance stating that it and the Building Safety Regulator are considering the view of the FTT but “until stated otherwise, the sector and regulatory bodies should continue to refer to existing government guidance”. No doubt the guidance will be updated in due course.
5. Davies and Partners Solicitors started off in Gloucester over 30 years ago and has its registered office in Gloucester. We are delighted to see the Forum building in Gloucester coming to completion. Congratulations to all involved, particularly with the green wall and other sustainability features at the Forum. The Forum has achieved BREEAM excellent and has created a wonderful corridor view to the splendid Gloucester cathedral, a much older architectural wonder: Architecture | Gloucester Cathedral
This edition was prepared by:
Iain Cole email: iain.cole@daviesandpartners.com and
Jan Grimshaw email: jan.grimshaw@daviesandpartners.com
Iain Cole has recently joined Davies and Partners Solicitors and works in our construction law and planning departments. For more information about Iain please see click here
If you have any questions about these or other construction matters, please contact Iain Cole on 01452 612345 or Jan Grimshaw on 07702 846850
