Palmers Limited -v- ABB Power Construction Limited

The sub-sub-sub-contract for the provision of temporary scaffolding around the structural frame forming part of the contract for the assembly and erection of a generator was a 'construction contract' within the meaning of section 104(1) of the Construction Act 1996
 
The claimant was the scaffolding sub-sub-sub-contractor. The sub-sub-contract work was the assembly and erection of a heat recovery steam generator and its associated pipework. It included the erection of a structural steelwork frame which supported and provided access to a generator. The generator formed part of the overall project which included the provision of plant for power generation. The boiler for the generator was suspended within the frame. The scaffolder was to provide temporary scaffolding around and above the structural frame to enable the boiler's erection to take place. Section 105(1) of the Construction Act 1996 provides that ?construction operations? include, amongst other things (b) the construction of any works forming part of the land and (e) operations forming an integral part of, preparatory for or for rendering complete such operations as were previously described in the sub-section, including the erection, maintenance or dismantling of scaffolding. Section 105(2), however, provides that certain types of work are expressly not ?construction operations.? These include the assembly, installation or demolition of plant or machinery or the erection or demolition of steelwork for the purposes of supporting or providing access to plant and machinery on a site where the primary activity was, inter alia, power generation. The sub-sub-sub-contractor wished to institute adjudication proceedings against the sub-sub-contractor. The sub-sub-contractor contended that the scaffolding work was not a ?construction operation.? This was on the basis that the work of assembling and erecting the boiler fell within the exception in section 105(2) as being such work being carried out on a site where the primary activity was power generation and that the scaffolding was subsidiary to the boiler work and was governed by this statutory exception. Judge Thornton rejected the sub-sub-contractor's contention by holding that the sub-sub-contract work fell within the meaning of section 105(1)(b) as being works forming part of the land and that the scaffolding work fell within the meaning of section 105(1)(e) as being preparatory to that work. Advice Note Judge Thornton held that the assembly and fixing to the land of industrial plant and similar features were ?construction operations? and therefore subject to the Construction Act notwithstanding whether they were also on a site where the primary activity was power generation.