Nottingham Community Housing Association Limited -v- Powerminster Limited
The contract for the maintenance and repair of gas appliances (comprising central heating systems, fires and cookers) was a 'construction operation' within the meaning of section 105(1)(a) of the Construction Act 1996
30 June, 2000
The contract provided for the contractor to carry out an annual service on all gas appliances in the properties in question and to supply a breakdown service. The appliances comprised central heating systems, fires and cookers. A dispute arose and the contractor purported to give a notice of adjudication. The employer contended that the contract was not a ?construction contract? within the meaning of section 105 of the Construction Act 1996 and sought a declaration to that effect. Section 105(1)(a) provides that ?construction operations? include the construction, alteration, repair, maintenance, extension, demolition or dismantling of temporary or permanent buildings or structures forming or to form part of the land. Section 105(1)(c) provides that ?construction operations? include the installation in any building or structure of fittings forming part of the land, including systems of heating, lighting, air conditioning, ventilation, power supply, drainage, sanitation, water supply or fire protection or security or communications systems. Dyson J held that the contract fell within the meaning of section 105(1)(a) on the basis that it was for the maintenance of structures forming part of land. The judge rejected the employer's contention that it was only the installation of the various systems sets out in section 105(1)(c) which were ?construction operations.? If Parliament had excluded not only the repair and maintenance of those systems but also their ?alteration, extension, demolition or dismantling? and it was very difficult to see why Parliament should have chosen to exclude their alteration or demolition in the light of the mischief at which the Act was aimed since such work was every bit as much a ?construction? activity as the work of altering the walls or roof of a building. If section 105(1)(c) were not present, the maintenance and repair of heating systems already installed would be ?construction operations? within the meaning of section 105(1)(a) on the basis that it would be surprising if it were otherwise. This was because it was common ground that section 105(1)(a) applied to operations in relation to part as well as the whole of a building. Advice Note Dyson J in his judgment made it clear that the courts would not be sympathetic to technical submissions based on a detailed analysis of the wording of section 105 as to what constitutes or does not constitute a ?construction operation.?