Construction and Planning Law

Barrett, Nick, ‘Straws Worth Clutching At’ (2020) 31(6) Construction Law 1
Abstract: Discusses the views of economic forecasters on how the economy will respond following the COVID-19 lockdown, and the renewed focus of the UK and devolved governments on infrastructure investment. Highlights research by Turner & Townsend on the impact of COVID-19 on the construction industry and how it may be able to improve productivity through smarter working practices.

Bowes, Ashley, ‘Emergency COVID-19 Grants to Help Heritage Projects Unveiled’ [2020] (9) Journal of Planning and Environment Law 983–984
Abstract: Highlights the announcement by Historic England that grants from the COVID-19 Emergency Response Fund will be made to 70 heritage projects. Details the purpose of the grants, the maximum amounts available, and the types of project that have benefitted, including Aldeburgh’s heritage collections and the Mary Rose Museum in Portsmouth.

Bryden, Chris and Georgia Whiting, ‘To Terminate or Not to Terminate, That Is the Question’ (2020) 31(6) Construction Law 27–29
Abstract: Examines case law on the right of an innocent party under common law to treat a contract as repudiated where there is no express termination clause; what amounts to a repudiatory breach; how the innocent party can minimise the risk of being found to be in repudiatory breach of contract themselves; and how the risk of losing the right of election can be minimised including where a potential repudiatory breach is cured prior to purported repudiation.

‘Building Contract Law: Hindrance to the Provision of Services by COVID-19’ [2020] (9 April) Lawyer (Online Edition) 1
Abstract: The article focuses on the impact of Covid-19 pandemic on construction law. It mentions consequences of this for construction projects depend on the work contracts. It also mentions that for difficulties that arise for a contractor as a result of COVID-19 force majeure he can therefore generally not claim any additional costs, and the contractor is also not entitled to adjust the contract on this basis.

Caine, Catherine A, ‘Applying for Development Consent during Lockdown: The Sizewell C Nuclear Power Station’ (2020) 22(2) Environmental Law Review 81–84 <UK>
Abstract: Considers the application by the Sizewell C Nuclear Power Station for development consent during the coronavirus pandemic, whether full public consultation on the matter is possible, and why action is needed by the Planning Inspectorate to ensure such consent is preserved during restrictions.

Cannon, Josef and Cristina Howick, ‘Disinfectant’ [2020] (9) Journal of Planning and Environment Law 979–982
Abstract: Discusses, using an analogy with disinfectant’s role in combating COVID-19, the potential effects of the coronavirus pandemic on UK housebuilding targets. Reflects on the cessation of housebuilding, the likelihood of recession, and whether a ‘tilted balance’ would help the planning system to deliver homes. Considers whether planning permission actually results in new houses, and the arguments for relaxing the ban on green belt development.

Clark, Gordon, ‘Scotland’s Divergent Path of Planning Reform’ (2020) 2036 Estates Gazette 42
Abstract: Contrasts planning reform in Scotland and England, focusing on use classes, permitted development, proposals for future reform and COVID-19-related changes.

Dunna, Gracious Timothy and Ronak Desai, ‘SCL-India Survey 2020-21: On the Impact of Coronavirus Pandemic on the Construction and Infrastructure Industry’ (SSRN Scholarly Paper ID 3850832, 1 January 2021)
Abstract: SCL-India, with the support of the Western-India Chapter, took the initiative to create a national resource of information for and by the construction and infrastructure industry about the impact of coronavirus (COVID-19), force majeure events, and the delivery of services. We believe that the survey has helped us identify current and future legal needs arising from the pandemic and related lockdown measures. The Reporters, Gracious Timothy Dunna and Ronak Desai, created the Survey and prepared the following Report, after receiving comments from members of SCL India. SCL-India welcomes comments, feedback, and observations concerning the Survey and the Report for inclusion and implementation by SCL-India.

Findlay, David, ‘Don’t Go It Alone’ (2020) 2039 Estates Gazette 63
Abstract: Explains the importance for valuers of collaborating with letting agents, capital markets peers and clients during the coronavirus pandemic, in light of the RICS’ recommendation in March 2020 that a material valuation uncertainty clause (MVUC) be included in valuation reports. Notes that, although the MUVC has seen a gradual exclusion as recovery has progressed, the RICS still endorses the inclusion of a market condition clause.

Flynn, Alexandra and Amelia Thorpe, ‘Pandemic Pop-Ups and the Performance of Legality’ (UNSW Law Research Paper No 21–44, 2021)
[forthcoming in Rianne van Melik, Pierre Filion and Brian Doucet (eds), Global Reflections on COVID-19 and Urban Inequalities (Bristol University Press, 2021) vol 3: ‘Public Space and Mobility’ 25-35]
Abstract: Cities around the world have rushed to respond to the coronavirus pandemic by regulating public space to promote social distancing and stimulate economic recovery. The resulting decisions are what we term ‘pandemic pop-ups’ - hasty, real-time, and temporary changes to the use and regulation of public space. Focusing on Toronto, Canada and Sydney, Australia, we argue that pandemic pop-ups extend beyond immediate infrastructure needs to how cities govern generally. Pop-ups may replace cars with bikes or extend restaurants into streets, and for this they have been celebrated: for saving jobs, and for making streets safer and more enjoyable. Pandemic pop-ups are not universally positive, however. They also remove tent encampments, make racialized residents more vulnerable to sanctions, and rush through controversial infrastructure projects. As we consider pandemic and post-pandemic cities, the governance of pop-ups demands critical scrutiny. The laws that regulate urban space are always open to multiple interpretations (Cover, 1983). The force of law depends on its social context, on the ability of legal actors to give effect to their preferred interpretations and the lack (or inability) of others to challenge those interpretations. Through pop-ups, cities enact a particular form of legality – by which we mean not just legal texts, but the range of rules, practices and understandings through which those texts take effect in the world – that weakens democratic oversight and participatory processes. With an emphasis on speed over process, pop-ups have invariably been deployed without oversight or engagement, and rarely involving the voices of racialized or vulnerable people. We recognize the value that pop-ups can bring to cities – socially, economically and environmentally – as well as the urgent challenges that make pandemic pop-ups critical. In this paper, however, we focus on more troubling aspects that have often been overlooked. To do this we challenge two features that are conventionally associated with pop-ups: their irregularity and their scope. First, most accounts describe pop-up planning as exceptional, a deviation from usual practices of decision-making. Yet in the time of COVID-19, pop-ups are the ‘new normal’. Second, we argue that pop-up infrastructure is broader than previously acknowledged, extending beyond bike lanes and patios to homeless encampments and policy proposals. Since pandemic pop-ups re-shape public space and the regulations through which it is governed, decisions must be made within a framework of inclusive and participatory decision-making.

Holdstock, Emily, ‘Six Months On’ (2020) 381 Property Law Journal 1–5
Abstract: Reflects on the impact of the COVID-19 pandemic on the construction industry. Discusses contractual risk allocation and key provisions in both the NEC and JCT suites of contracts, negotiation of new construction contracts, and the implications of contractor insolvency.

Hughes, Paul, ‘COVID-19 and Construction Contracts’ (2020) 38(12) Irish Law Times 179–184
Abstract: Discusses the impact of COVID-19 on construction contracts. Considers how different types of contract address delay and cost caused by COVID-19 restrictions, a contractor’s entitlement to an extension of time and loss and expense, and force majeure clauses. Examines the JCT Suite, the Public Works Contracts suite, FIDIC and NEC4.

Kirkham, Karen, ‘Hard Cases Make Bad Contracts’ (2020) 31(6) Construction Law 6–7
Abstract: Examines the implications of rare or unforeseen compensation events or force majeure for JCT and NEC construction contracts in light of the impact on the construction industry of the COVID-19 pandemic. Argues that crisis-driven amendments to contracts may result in excessive risk for the contractor and prove to be ineffective.

Klein, Rudi, ‘Spoiling for a Fight’ (2020) 13 Building 34–35
Abstract: Comments on the difficulties contractors may experience when attempting to rely on force majeure to defend contractual delays as the industry emerges from the COVID-19 lockdown. Suggests that the Government could use the Civil Contingencies Act 2004 to adopt regulations mitigating the effects the pandemic has had on the construction industry.

Leadbeter, Paul, ‘COVID-19 Generated Changes to Planning and Development Controls in South Australia’ (2021) 23(4) Local Government Law Journal 84
Abstract: South Australia is presently in the throes of major changes to its regulatory system governing land use, development of land and the development of planning policy against which development assessment decisions are to be made. Eventually the planning and development control system established under the Development Act 1993 (SA) will be replaced by a new system implemented by the Planning, Development and Infrastructure Act 2016 (SA) (the new Act).

Leadbeter, Paul, ‘South Australia: COVID-19 Generated Changes to Planning and Development Controls in South Australia’ (2020) 23(2) Local Government Law Journal 87–91
Abstract: South Australia is presently in the throes of major changes to its regulatory system governing land use, development of land and the development of planning policy against which development assessment decisions are to be made. Eventually the planning and development control system established under the ‘Development Act 1993’ (SA) will be replaced by a new system implemented by the ‘Planning, Development and Infrastructure Act 2016’ (SA) (the new Act). The state is in a transitional phase. The provisions of the new legislation which create the State’s planning authority, the State Planning Commission, have been implemented and the Commission appointed. Local councils have all appointed their Council Assessment Panels as required by the new Act and development decisions under the ‘Development Act 1993’ (SA) assessment procedures are being made by the new bodies. If the implementation of a major new planning system with new legislation and planning policy was not already causing some issues, the advent of the COVID-19 pandemic in South Australia has brought additional complexities including amendments to the regulatory system governing development controls.

Longley, Nick, ‘COVID-19 and the Concept of Damage for Construction Insurance Claims’ (2020) 36(1) Australian Insurance Law Bulletin 11–14
Abstract: This article considers to what extent an outbreak of COVID-19 on a construction site will impact on any construction insurance contracts. It will specifically consider to what extent the presence of COVID-19 on site can be considered damage for the purposes of the material damage section of a contract works insurance contract.

Massey, Peter and James Hallas, ‘COVID-19 and the Challenges for Implementing Changes to the Building Safety Regime’ [2020] (July/August Supplement) Housing Law Monitor vii–ix
Abstract: Reports on Government pledges to ensure building safety measures are a continued focus, despite the coronavirus pandemic, which include: the introduction of a new national building Safety Regulator; reforms to the duty holder regime; improving resident engagement; increased regulation of construction products; and promoting competence in the construction industry.

McLeod, Glen, Chelsea White and Lea Hiltenkamp, ‘COVID-19 and Its Impact on Town Planning Law’ (2020) 47(4) Brief 10–11
Abstract: The outbreak of coronavirus, or COVID-19, has significantly disrupted every facet of life. Planning law has not been immune. Landowners and developers may find themselves hard-pressed to meet deadlines for the substantial commencement of a development approval within the statutory two years1 or the implementation of a subdivision approval within the statutory period of three or four years2 (depending on the numbers of lots in the subdivision) and meet deadlines associated with construction and development. Are there options for parties to retain their approval when circumstances make it difficult to comply with the time limits? Since the submission of this article, further important changes were made to the planning law regime. Some of those changes build on the comments made in the below article. We have prepared a summary of those changes, which can be found.

Quinn, Kelly, ‘Suspension of Construction Contracts in the Time of COVID-19’ [2020] (May) New Zealand Law Journal 144–147
Abstract: With apologies to Gabriel Garcia Marquez, the title sums up both the subject-matter of this article, and its goal. In short, my argument is that under NZS 3910:2013 (generally thought to be the most commonly used standard form contract for non-residential construction projects in New Zealand), the Engineer ought to have issued a notice of suspension in response to the COVID-19 lockdown.

Sergeant, Michael, ‘Variations and COVID-19 Claims’ (2020) 15 Building 40–41
Abstract: Considers whether variation clauses in construction contracts could be invoked to address changes such as the scope of work or revised methods of working as a result of the coronavirus pandemic.

Stemler, Taylor, ‘Construction Law: Covid-19 Forces Contractors to Examine AIA Agreements’ (2021) 78(3) Bench & Bar of Minnesota 12–13
Abstract: Implied in contract law is the assumption that the world will remain the way the contracting parties imagined at the time of formation. This principle originated from an early English case, where a venue owner was excused from renting out a music hall unexpectedly destroyed by fire.1 The covid-19 pandemic has sparked many ‘fires’ of its own—not only for parties left unable to fulfill contractual obligations, but also for lawyers attempting to determine their client’s exposure under these agreements. The cumulative effects of the pandemic are especially problematic in the construction industry, as supply chain and workforce issues slow operations to a halt.2 Fortunately, contract attorneys have learned from situations like the burned down music hall and have developed contractual devices to assign unforeseen risks to parties. These force majeure clauses are now common and variants have even made their way into the American Institute of Architects industry standard contract form.3 Whether covid-19 is covered under these clauses depends largely on their terminology and the yet-to-be-understood effects of the pandemic.

Stewart, Edward, ‘Storm COVID Blows through the Wind Industry’ (2020) 31(6) Construction Law 12–13
Abstract: Analyses the effect of COVID-19 on the wind power industry where forecasts estimate reductions as high as 9GW in 2020 installations, and what reliefs there may be for such projects under FIDIC Silver Book 1999 edition.

Summerell, Tracey, ‘Good Behaviour’ (2020) 31(6) Construction Law 33
Abstract: Considers the UK Government’s call for good contractual behaviour by parties to construction contracts to support an economic recovery following the COVID-19 pandemic, and how businesses can observe best practice in meeting their contractual obligations.

‘Tax-Saving Opportunities for the Housing and Construction Industries’ [2020] (December) Tax Adviser 1–5
Abstract: The article focuses on Paycheck Protection Program loans, navigating the tax law changes in the Coronavirus Aid, Relief, and Economic Security (CARES) Act and keeping their businesses moving forward despite significant challenges created by the COVID-19 pandemic. It mentions tax-saving opportunities for the housing and construction industries and the research and development (R&D) credit may be second nature. It also mentions how tax preparers can claim tax benefits.

Turner, Duncan and Amy Roberts, ‘COVID: A Catalyst for Change?’ (2020) 31(6) Construction Law 24–26
Abstract: Examines the legal implications relating to the implementation of new technologies and processes that aim to help the construction industry ensure compliance with ongoing COVID-19-related restrictions in the workplace and how such technologies may be adopted in the longer term. Highlights the need for the purchaser to carefully review contracts with suppliers of such technology.

Viljoen, Nick, ‘COVID-19 and Change in Law’ (2020) 31(6) Construction Law 21–23
Abstract: Considers whether changes to a contractor’s working methods or procedures in compliance with the Government’s COVID-19 Standard Operating Procedures could qualify as a change in law or a variation or whether such changes fall within the principal contractor’s pre-existing obligations under the Construction (Design and Management) Regulations 2015.

Vines, Katherine, Scott Watson and Steve Swan, ‘Lock down Your Rights: Practical Tips for Administering Construction Contracts during COVID-19’ (2020) 31(4) Australian Construction Law Bulletin 45–47
Abstract: Australia is presently grappling with some unprecedented changes brought by the COVID-19 outbreak: personnel in quarantine, borders closing and worksites at a daily risk of lockdown. In this article, we summarise how this risk may be allocated under construction contracts and provide some practical tips on the administration of those construction contracts in light of the impact of COVID-19.

Wright, John D, ‘COVID-19: The Insurance Implications’ (2020) 31(6) Construction Law 30–32
Abstract: Discusses what insurance covers may be applicable and to what extent losses may be recoverable in COVID-19-related claims where ‘fundamental’ risks including pandemics are generally outside the scope of the insurance market. Highlights the need for a joint approach between insurers and the Government to deal with the financial implications of future pandemics

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