The site

AuthorJulian Bailey
Introduction 694
Access to the site 695
(i) Obligation to provide access 695
(ii) Extent of access to be provided 697
(iii) Prevention of access by third parties 699
(iv) Consequences of failure to provide access 699
(v) Nature of the contractor’s use of land 700
(vi) Revocation of contractor’s licence to occupy land 701
(vii) Access for third parties 703
(viii) Use of adjoining property as a means of access 703
Responsibility for the site and the works 704
(i) Generally 704
(ii) Vicarious liability for damage caused by employee 706
(iii) Site security 707
(iv) Disposal of spoil and rubbish 708
Owner resuming possession 710
Unforeseen site conditions 711
(i) Introduction 711
(ii) Entitlement to relief where site conditions could not reasonably have
been foreseen 713
(iii) Responsibility for investigating the site 715
(iv) Absolute undertaking 716
(v) No express agreement on risk allocation 717
(vi) Changes to design or work methods 719
(vii) Underestimate of work in bill of quantities 719
(viii) Frustration/impossibility 719
(ix) Physical harm and damage to property 720
Nuisance 720
(i) Introduction 720
(ii) Private nuisance 721
(iii) Public nuisance 725
(iv) Remedies for private or public nuisances 727
(v) Statutory nuisance 729
Withdrawal of support to neighbouring land 732
(i) Generally 732
(ii) Right of support for improvements on the land? 734
(iii) Remedies 735
Party walls and the common law 736
(i) Existing party walls 736
(ii) New party walls 737
Statutes concerning party walls and fences 738
(i) Generally 738
(ii) England 738
(iii) Australia 744
(iv) Hong Kong 745
(v) Singapore 745
Trespass/access to land 745
(i) Trespass 745
(ii) Access to land 748
(iii) Remedies for trespass 749
Duty of care owed to passers-by and neighbours 752
(i) Generally 752
(ii) Duty owed to passers-by 753
(iii) Damages 756
Occupiers’ liability 757
(i) Owner’s duty of care 757
(ii) Contractor’s duty of care 759
(iii) Occupiers’ liability legislation 760
Statutory liability for damage to property 762
Independent contractor 762
Ownership of materials, plant and equipment 765
(i) Generally 765
(ii) Retention of title 768
(iii) Materials supplied by owner 768
(iv) Plant and equipment 768
(v) Mandatory injunction 769
Archaeological and other nds 769
8.01 Construction and engineering work is mostly per formed on real property, whether
that work be on or in the land itself, or in a structure that has been constructed on land.1
e area within which physical work is performed is referred to as the “the site”. Con-
struction and engineering contracts usually indicate or dene the physical boundaries
of the site.2 e contractual denition used by the parties may be coincidental with
1 ere are, of course, numerous types of construction and engineering work that do not involve the construction
of an asset that forms part of the land; eg, oshore engineering work.
2 However, depending upon the circumstances of a project, a contract need not specify the exact site at which
work is to be performed, as may be the case where it is contemplated that the works could be performed in an area
unidentied or unascertained at the time of entering into the contract: JFS (UK) Ltd v Dwr Cymru Cyf [1999]
EWHC Tech 270 at [53]–[56], per HHJ Hicks QC.
that used under statutes governing the performance of work at construction sites, and
liability for occupation of the site, but this need not be the case.3
8.02 L egal issues concerning the site at which construction or engineering work is to be
performed usually relate to one or more of four matters. e rst concerns the provision
of access to the site, and the retaking of possession of the site by the owner. e second
concerns responsibility for harm or injury to persons, or damage to or loss of or inter-
ference with property, arising out of the performance of work on the site. irdly, there
is the question of which party bears the risk of site conditions being encountered that
were more adverse than anticipated at the time of entering into the relevant contract.
Fourthly, legal issues may arise as to the ownership of property on site (including plant,
materials, equipment and found objects), and responsibility for disposing of waste prop-
erty. Each of these matters is considered in this chapter.
Access to the site
(i) Obligation to provide access
8.03 It is obvious that in order for a contractor to be able to perform work on a site,
it will require access to those areas of the site in which the work is required to be per-
formed. It is therefore implicit, or it may be express, that when a person is engaged to
perform work on particular land, the person is licensed or will be granted a licence to
enter upon the land to carry out the work.4 Put in slightly dierent terms, it may be an
express or implied term of a construction or engineering contract that the owner is to
give access to the contractor to those areas of the site where the contractor is to perform
3 Compare Blashill v Chambers (1884) LR 14 QB 479. e determination of the location and boundaries of a “site”
may be important, eg, for the purposes of determining whether an activity which takes place on site is subject to
the operation of Part II of the Housing Grants, Construction and Regeneration Act 1996 (UK) (see ABB Zantingh
Ltd v Zedal Business Services Ltd [2001] BLR 66 at 72[28]–73[34], per HHJ Bowsher QC; Laker Vent Engineering
Ltd v Jacobs E&C Ltd [2014] EWHC 1058 (TCC) at [38]–[71], per Ramsey J), whether the laws of a particular
jurisdiction apply (or do not apply) to the performance of construction or engineering works (see, eg, Allseas
Construction S.A. v Minister for Immigration and Citizenship [2012] FCA 529, which considered whether workers
on oshore pipelaying vessels were subject to Australian migration laws), whether one party takes responsibility for
security in a particular area, so that it is contractually liable to the other should appropriate security not be provided,
and the other party suers a loss as a result (BGC Residential Pty Ltd v Fairwater Pty Ltd [2012] WASCA 268),
or for the purposes of identifying a person’s place of work, so as to determine his entitlement (if any) to payment
for travelling and similar costs under an industrial award (Kenoss Contractors Pty Ltd v Warren [2005] FCA 1175).
4 Freeman v Hensler (1900) Hudson’s BC (4th edition, volume 2) 292 at 293, per AL Smith LJ; Guerini Stone Co
v PJ Carlin Construction Co, 248 US 334 at 340 (1919); Graham H Roberts Ltd v Maurbeth Investments Pty Ltd
[1974] 1 NSWLR 93 at 102, per Helsham J; Milburn Services Ltd v United Trading Group (UK) Ltd (1995) 52 Con
LR 130 at 148–149, per Judge Bowsher QC; Pine v Doyle [2005] FCA 977 at [25], per Merkel J. Where land is
owned by two joint tenants, and one of them enters into a contract with a builder for the performance of building
work on the land, the other joint tenant – if it tacitly consents to the work being performed – will be taken to have
implicitly granted a licence to the builder to enter upon the land to perform the work: see In re Holyman (1935) 30
Tas LR 15 at 29–30, per Nicholls CJ.

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