Comsite Projects Limited V Andritz AG
Technology and Construction Court
Her Honour Judge Frances Kirkham
30 April 2003
There were two sub-contracts in relation to the construction of a dryer building which formed part of the overall project for the water company of the construction of a new waste water treatment works and sewage sludge recycling centre and the installation in the dryer building of plant which dewatered the sludge. One of the sub-contracts was for the installation of electrical services to the dryer plant and compressor. The other one was the building services sub-contract which was for the supply of building services to the dryer building, including the installation of lighting, emergency lighting, small power distribution, power to roller doors, containment, fire and gas alarm systems, heating and ventilation and the building management system.
Judge Kirkham held that the work to be carried out under the building services sub-contract was a “construction operation” within the meaning of section 105 of the Construction Act 1996. This was on the basis that the work did not fall within the definition of work expressly provided not to be a construction operation by section 105(2)(c)(i), ie the installation of plant on a site where the primary activity is water or effluent treatment. The work did not amount to the installation of plant insofar as (1) The installation of the services was not connected (physically or otherwise) with the dryer plant but was instead related to the building which housed not only the plant but also other areas of activity (2) There was no reason to suppose that the dryer plant was not capable of operating without any of the services to be installed under the building services sub-contract with the result that the services were in no real sense part of the apparatus comprising the plant and (3) The assumed fact that the water company could not operate the dryer building without the lighting and alarms to be provided under the building services sub-contract by reason of health and safety regulations did not have the consequence that the building services were integral to the plant so as to fall within the definition in section 105(2)(c)(i).
The courts will take a practical view of whether work comes within the exceptions to what constitute construction operations under section 105 of the Construction Act.