Barkby Real Estate Developments Ltd v Cornerstone Telecommunication Infrastructure Ltd
|England & Wales
|Mr Roger ter Haar
|21 July 2022
| EWHC 1892 (TCC)
|Case No: HT-2020-000436
|Queen's Bench Division (Technology and Construction Court)
 EWHC 1892 (TCC)
Mr Roger ter Haar QC
Sitting as a Deputy High Court Judge
Case No: HT-2020-000436
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
London, EC4A 1NL
Jonathan Ward (instructed by Napthens LLP) for the Claimant
Peter Petts (instructed by Osborne Clarke LLP) for the Defendant
Hearing dates: 12, 13, 14 July 2022
Mr Roger ter Haar QC:
In this action the Claimant originally claimed £111,445.24. By the time the case came before me the claim had been reduced to £68,574.27.
By the standards of the TCC, this is a very small claim. Notwithstanding its modest size, the claim has been prepared efficiently by both firms of solicitors and the trial has been conducted efficiently and proportionately by two experienced and able counsel.
B. The Parties
The Claimant (“BREDL”) is a wholly owned subsidiary of Barkby Group PLC. I heard evidence from two directors of BREDL. The first to be called was Mr. Gary Langridge-Brown. Mr. Langridge-Brown is a director of BREDL, but not an employee of that Company: he acts as a consultant providing his services through another company, Ambit Developments Limited (“Ambit”). The history of the development of the project set out below is generally based upon his written and oral evidence, which I accept.
The second director from whom I heard was Mr. Charles Dickson, who is now the Executive Chairman of Barkby Group PLC.
The business of BREDL was and is the development of trade parks in the United Kingdom.
As described in the Defence, the business of the Defendant (“Cornerstone”) is that of a national infrastructure provider involved in the installation of electronic communications on land to enable companies such as Vodafone (“Vodafone”) and Telefonica UK Limited (known as O2 in the market: hereinafter “Telefonica”) to provide mobile phone services to the general public. Cornerstone is more than just a contractor and acts as both an agent for Vodafone and Telefonica in the management of sites from which they operate their respective electronic communications networks, as well as owning and deploying communications infrastructure in its own name.
I heard evidence from Mr. Stephen France, the build manager for Cornerstone.
BREDL specialises in developing contract backed sites in the South East of England: I understand the expression “contract backed” to mean that before development of a site begins BREDL has identified and reached an agreement with an anchor tenant or anchor tenants for that site and with a “forward purchaser” for the site.
BREDL's approach is that once a site has been identified as having potential to be developed as a commercial scheme, Ambit is retained. Ambit then brings in different professionals to support the project which involves acquiring the site, obtaining planning permission, developing the site, marketing it to prospective tenants, getting tenants interested and selling the scheme on a forward funding basis.
C. The Project
The project out of which this dispute arises is a development at Bexhill Road, Hastings. Before this development, the site had been in two different ownerships and uses. One part had been a food store; the other had been a car dealership known as Yeomans.
At Ambit's suggestion and with Ambit's assistance, BREDL put the project site together, reached agreements with tenants for the site, including the well known supermarket chain, Aldi, and forward sold the project to Hastings Borough Council.
D. BREDL's team
For the development, BREDL engaged the services of the following professionals:
(1) For the design stage, Roberts and Cartwright Design Limited (“RCD”) as utilities engineer;
(2) Mitchell Design and Construction Limited (“MDCL”) as the main contractor for the development work itself;
(3) Rex Procter and Partners (“RPP”) as the Employer's Agent/QS;
(4) The Harris Partnership (“THP”) as the architect;
(5) JPG Limited as the engineer;
(6) Ambit as the Development Manager to oversee the whole project from acquisition to planning to advance letting to construction to handover (to Hastings Borough Council).
E. Initial exchanges
By the beginning of 2018 the Bexhill Road site had been acquired for development and BREDL entered into discussions with RCD. The site had a mobile telephone mast. BREDL formed the view that it was probable that it would be necessary to relocate the mast and its adjoining cabinets. In this BREDL was right as the highway authority required its removal so as to create safe sight lines for traffic emerging from the site.
RCD, on BREDL's behalf undertook a site/area investigation to confirm services that were likely to impact the development. RCD noted an O2 label on the boxes: they contacted O2 who in turn put them in touch with Cornerstone, who was approached by RCD on 17 January 2018.
On 8 February 2018 Mr Sorge of Cornerstone sent an email to Mr Sherwood of RCD 1:
“Further to your query through our website on the site move costs, the site you have identified looks to be a ‘streetworks’ installation in the public highway:
[there are two photographs inserted]
“Depending on availability of alternative location, planning, decommissioning and build costs you'd probably be looking at a rough cost of C£60k and timescale of c9 months.
“The matter would be dealt with by our ‘Lift and shift’ team.”
On 18 April 2018, Mr Sherwood sent an email to Mr Sorge 2:
“I hope you are keeping well.
The project is now moving forward and we have been asked to find out what the process is for getting this mast relocated.
The client [has] proposed a new location which is really just moving the mast back a few feet from the road to make way for the bus lane. This is now with planning for their approval. We are aware that your company will obviously need to confirm this location is suitable too.
We now need to know the following and [wondered] if you could help.
5. How do we start getting the mast relocation going?
6. What forms do we need to complete with you?
7. How do we go about getting a formal quote from you?
8. What are the timescales you work to?
I would be grateful if you could provide the information and please feel free to call me if it is easier to discuss over the phone.”
After a little delay, on 17 May 20918, Mr Michael Swash, a surveyor at Cluttons, (acting for Cornerstone), responded, again by email 3:
“Your enquiry has been passed on to me. In answer to your questions:
1. How do we start getting the mast relocation going?
— The notice provided is sufficient. If you have drawings of the proposed scheme this will help our suppliers to find a relocation option.
2. What forms do we need to complete with you?
— If you wish to proceed our client CTIL will need to set the developer up as a supplier and need request some basic payment info. I will forward the forms once it is confirmed that they wish that they wish to proceed with relocating the telecoms Site.
3. How do we go about getting a formal quote from you?
• The process is in 2 stages.
1 – the initial Acquisition & Design (A&D) – this involves surveying the site/area, finding analternative location, obtaining planning if required, and design of the site at the relocation option.
2 – The Construction phase – build of the tower & cabinets, supply of power and BT/Virgin transmission to the telephone network.
We will raise an initial quote for the 1 st stage. At which point if your client wishes to proceed they will need to complete the forms (@2.) and once payment has been received, CTIL will instruct their A&D partner to progress.
Once this stage is complete, we can then request the quote for the 2 nd phase. Your client will then have the option to progress or not prior to this stage starting. If they wish to proceed, payment will need to be made to CTIL. Again once payment received CTIL will instruct their partner to proceed with the construction of the new site and then the decommissioning of the old site once the new one is Live.
A total ballpark if a new site is required £120,000.
4. What are the time scales you work to?
— 12–18 months.”
On 11 June 2018 Mr Sherwood sent an email to Mr Swash instructing Cornerstone to proceed 4.
F. Cornerstone's team
In order to understand the email traffic which has been placed before me and to understand who was doing what at different stages, the roles of the different members of Cornerstone's team need to be understood. Of that team, Galliford Try are perhaps most important as it had the most significant co-ordination role. Mr. France sets out the parties involved 5:
“14. As I have set out above, my role at Cornerstone is to oversee the build and decommissioning project, as Cornerstone has overall responsibility for the mast infrastructure. Cornerstonecheck that the new site designs are viable, oversee the project, raise purchase orders and ensure health and safety procedures are followed. However, Cornerstone does not carry out much of the build and decommissioning work itself and is instead assisted in its projects by a number of suppliers who carry out [discrete] roles. I have set out below a brief explanation of the different parties' roles in this project to give some context to the documents and emails that have been disclosed by the parties.
“14.1 Cluttons LLP – Cornerstone's agent who manage the site on a day-to-day basis.
“14.2 Galliford Try – Cornerstone's acquisition, design and build partners. They are responsible for all the necessary works to get the...
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