Building and Construction in UK Law

Dealing with this subject, the learned editors of Hudson's Building and Engineering Contracts, 8th edition, say at page 319 that there are in fact three possible bases of assessing damages, namely, ( a) the cost of reinstatement; ( b) the difference in cost to the builder of the actual work done and work specified, or ( c) the diminution in value of the work due to the breach of contract.

But in construing such a contract one starts with the presumption that neither party intends to abandon any remedies for its breach arising by operation of law, and clear express words must be used in order to rebut this presumption.

It is used in the equitable sense to denote conduct by the defendant or his Agent such that it would be "against conscience" for him to avail himself of the lapse of time. The section applies whenever the conduct of the defendant or his agent has been such as to hide from the plaintiff the existence of his right of action, in such circumstances that it would be inequitable to allow the defendant to rely on the lapde of time as a bar to the claim.

When an application for planning consent is made for permission for a single operation, it is made in respect of the whole of the building operation. The first is the practical one that an application for permission partially to erect a building would, save in exceptional circumstances, fail. As counsel for Mr Sage accepted, if a building operation is not carried out, both externally and internally, fully in accordance with the permission, the whole operation is unlawful.

If one considers the practicalities of the construction of a building or other works, it seems to me that parties could reasonably have intended that they should have what might be called a provisional validity. Construction contracts may involve substantial work and expenditure over a lengthy period. It is important to have machinery by which the rights and duties of the parties at any given moment can be at least provisionally determined with some precision.

The maxim noscitur a sociis may be a useful aid to statutory interpretation, but the contexts in which it is applicable are limited. I can see no ground on which the meaning of the ordinary English word "alteration" qualified by the adjectival phrase "of any building" should be construed as excluding any work upon the fabric of the building except that which is so slight or trivial as to attract the application of the de minimis rule.

There is no dispute that the works constituted an approved alteration of a building. The critical question, however, is which building for the purposes of item 2 was being altered: was it the house or was it the outbuilding? If, as the taxpayers contend and the majority of the Court of Appeal held, it was the House, there can be no doubt that it was to remain as a single dwelling and was a listed building.