Gibson Lea Retail Interiors Ltd -v- Makro Self-Service Wholesalers Ltd
The contracts for the shoplifting works were not "construction contracts" within the meaning of the 1996 Act on the basis that none of the items supplied and installed were fixtures with the result that the works did not constitute "construction operations"
24 July, 2001
The contractor was engaged to supply and install shopfittings in a wholesale outlet. The contractor referred a dispute over invoices to adjudication. The employer contended that the works were not construction operations within the meaning of the Construction Act 1996. Judge Seymour held that the contracts were not "construction contracts" within the meaning of the Act on the basis that none of the items supplied and installed by the contractor were fixtures with the result that the works did not constitute "construction operations. " Shopfitting did not amount to a "construction operation" unless it could properly be said that such work was, in the words of section 105(1)(a), the "construction of structures forming, or to form, part of the land (whether permanent or not)" or (b) the "installation in any building or structure of fittings forming part of the land". It appeared that Parliament's intention was to introduce into the Act the existing law as to fixtures by the words "forming part of the land." The concept of a fixture in the context of the law of real property was well-established and one of the factors in determining whether the structure or fitting was a fixture was whether it was intended to be permanent. The proper construction of section 105(1)(a) was clear and unambiguous and was that the adjective "permanent" qualified the noun "structures" (rather than modifying the temporal connotations of "forming or to form part of land"). It could be ascertained from the specification that some parts of the shopfitting works plainly involved the supply of chattels which were not intended to be fixed to anything (for example stalls, mirrors and mobile bread and cake stands). Lastly it appeared from the evidence before the court that none of the items supplied by the contractor, insofar as they were installed by it, were fixtures. Advice Note There is a fine dividing line between what constitutes a fixture (which is fixed to the land) and what is a mere chattel (or thing not so fixed) for the purposes of the Construction Act. Judge Seymour in this case provided guidance by using the test from the law of real property. This is whether the item can be said to ?form part of the land.?