What is England?

In the case of Van Elle Ltd v Keynvor Morlift Ltd the Technology and Construction Court were asked to determine the geographical extent of England for the purposes of the Housing Grants, Construction and Regeneration Act 1996 (the Construction Act). 

A contract was formed between the parties via Van Elle’s acceptance of a Keynvor Morlift’s purchase order. In the contract, Van Elle agreed to undertake pile replacement works at a pontoon at Fowey Harbour in the river Fowey in Cornwall. A dispute arose which was referred to adjudication There was no contractual adjudication clause so the referral was made on the basis that the Construction Act applied.  Van Elle succeeded in a statutory adjudication and sought summary judgment to enforce the decision of the adjudicator. 

Keynvor Morlift defended the enforcement action. The argument was that the Construction Act did not apply because the construction operations were outside of England.  The Construction Act has no definition of England.  In consequence, Keynvor Morlift relied on the Interpretation Act 1978 and the Local Government Act 1972 (‘the Acts’).  In short, the submission was that by reference to the Acts, the boundary of England is 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, Keynvor Morlift argued the construction operations were outside England.  

The ambiguity surrounding the geographical demarcation posed a unique challenge to the court, requiring an examination of historical, legal, and geographical factors.

In its deliberations the court identified that a 2014 order made under the Territorial Sea Act 1987,  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 court’s decision was then in favour of Van Elle - the contract for piling works fell within the scope of construction operations in England, and the adjudicator’s decision was enforceable.

This case is significant for several reasons. Firstly, it highlights the importance of understanding the geographical extent of ‘England’ for the purposes of the Act and it was the first time the scope of territorial application had been clarified since the Act was introduced. The case also raises important questions about the role of adjudication in construction disputes as it highlights the potential pitfalls of adjudication, particularly in relation to jurisdictional issues. Overall, the case is a useful reminder of the importance of ensuring that the jurisdictional basis for adjudication is clear and unambiguous, and that parties are aware of the potential pitfalls of adjudication. 

This case will be of importance to those engaged in onshore/offshore works, such as wind farms, liquefied natural gas projects and marine piling projects.