A recent decision of the TCC will be relevant to anyone engaged in or contemplating construction works in England's coastal waters. 

A core feature of contracts for construction work in England is the access to (and readiness of parties to use) adjudication in order to resolve disputes. The right to adjudicate is guaranteed by statute, provided the contract in question satisfies the requirements of the Housing Grants, Construction and Regeneration Act 1996 as amended (the Construction Act).   

One of those requirements is that the construction operations take place in England. This had led to an understanding that works carried out offshore fall outside statutory adjudication. However, the Construction Act does not mention this concept, creating the question as to whether works on the coast or fixed to the seabed can be subject to statutory adjudication. 

The case of Van Elle Limited and Keynvor Morlift Limited [2023] EWHC 3137 (TCC) has given us an answer to this question. The contract involved pile replacement works for a pontoon berth located in open tidal water in the river Fowey (Cornwall). The claimant had succeeded in a statutory adjudication and sought enforcement of the adjudicator's decision. The defendant argued the adjudicator had lacked jurisdiction as the works had not taken place within England. 

The judge found that the Construction Act makes no distinction between dry land and land covered by water. Further, that parliament had clearly intended the Construction Act to apply to works carried out over and under inland waters. An example given being works to build a bridge over a river. The pertinent question was - what is the extent of the realm of England for the purpose of the Construction Act? 

The defendant argued that a definition of the extent of England can be found in the Local Government Act 1972, which in short relies upon the boundaries set by Ordnance Survey (OS) maps. OS maps generally follow the boundary between the land and the sea when at low tide. As the pontoon sat outside the line drawn by the OS map, the defendant argued the construction operations were outside England. 

However, the judge identified that a 2014 order made under the Territorial Sea Act 1987, had set the extent of the realm so as to accord with international treaties. The order stated that the relevant boundary would be a straight line across the mouth of any river that flowed directly into the sea. Although it was outside the line on the OS map, the pontoon was on the landward side of the line across the mouth of the river Fowey and thus within England. 

The adjudicator's decision was enforced.