Hortimax Ltd v Hedon Salads

The installation of artificial lighting and blackout screens in and the improvement of the irrigation system in and to the greenhouses used for the growing of cucumbers were not "construction operations" by reason of falling within the exception to such operations as defined in section 105(2)(c)(ii) of the Construction Act
 
HORTIMAX LTD v HEDON SALADS LTD

Technology and Construction Court
His Honour Judge Gilliland QC
15 October 2004
 
 
The adjudicator made decisions under six separate contracts for the installation of artificial lighting and blackout screens in greenhouses used for the commercial growing of cucumbers and for the improvement of the irrigation system in and to the greenhouses. The employer contended that the works were not "construction operations" by reason of falling within the exception to such operations as defined in section 105(2)(c)(ii) of the Construction Act. Section 105(2)(c)(ii) provides that the installation of plant on a site whose primary activity was the production of food and drink is not a "construction operation".
 
Judge Gilliland held that the employer was correct in its contention. The works carried out under the contracts should properly be regarded as being in respect of part of the apparatus for carrying on the business of growing cucumbers and the employer's premises were a site where the primary activity was the production of food and drink.
 
The lighting system installed in the greenhouses (1) was part of the apparatus used or to be used for carrying on the business of growing cucumbers and (2) was not a system for illuminating the premises in which the cucumbers were to be grown in order that people could work there during the hours of darkness. The blackout screens were to be regarded as part and parcel of the lighting system and were not an independent system in their own right insofar as (1) the purpose of the screens was to prevent light escaping from the greenhouses and causing light pollution of the surrounding neighbourhood and (2) whilst the lights could physically have been operated without the use of the screens and the screens had to be provided as a condition of the planning permission, it was never the intention that the lights should be used without the screens. The improvement of the irrigation system was all part of the provision or improvement of a system essential to the carrying on of the employer's business of growing cucumbers in its greenhouses. Finally there could be no doubt that growing cucumbers was the primary activity carried out at the premises and cucumbers undoubtedly fell within the term "food" as generally understood.
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