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Abb Power Construction Ltd v. Norwest Holst Engineering Ltd [2000] EWHC Technology 68 (1st August, 2000)

IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT

HIS HONOUR JUDGE HUMPHREY LLOYD QC

B E T W E E N:

	ABB POWER CONSTRUCTION LTD	Claimant
	-and-
	NORWEST HOLST ENGINEERING LTD	Defendant

Case No HT 00 / 290
Date of Judgment 1 August 2000

Adjudication - Jurisdiction - Contract or contracts for provision of Insulation for Pipework, Boilers etc for a Power Generation project - whether a "Construction Contract" excluded by section 105(2)(c)(ii) of the Part II of the Housing etc Act 1996 (yes) - Whether "site" in same paragraph had to be existing or future generation activity (no).

Alexander Nissen appeared for the claimant, instructed by Pinsent Curtis, Birmingham.
John Blackburn QC and Andrew Goddard appeared for the defendant, instructed by Dundas & Wilson CS, Edinburgh.

The judgment of His Honour Judge Humphrey LLoyd QC was as follows, subject to editorial correction:

JUDGMENT

1. The claimant, ABB Power Construction Ltd (ABB), asks for declarations about the jurisdiction of an adjudicator, Mr B.S. Holloway, who has been appointed at the instance of the defendant, Norwest Holst Engineering Ltd (NWH), and who is in the course of an adjudication. Mr Nissen, for ABB, said that ABB had decided to take this course rather than waiting until the result of the adjudication. This sensible choice may avoid not only the trouble and expense of an unnecessary adjudication but also any additional cost of contesting enforcement and any consequent delay. Since this Court will shorten the times provided in the CPR in order that, for example, a claim about jurisdiction can be heard swiftly, such a course should be advantageous to the parties involved, especially where there is constructive co-operation between the parties, as happened here.

2. Notice of adjudication was given on 6 July. It was a model of clarity. In it NWH stated that there was a dispute about payment and sought various orders, primarily for payment of some Ł737,000. Mr Holloway was appointed by the ICE on 13 July. NWH served its referral notice on 14 July. On 18 July ABB contested the adjudicator's jurisdiction. (ABB took this prudent step, rather than going straight to the TCC because of the nature of its case, as will become apparent.) The parties presented their respective cases to the adjudicator. On 24 July the adjudicator informed the parties that, whilst he could not of course decide on his own jurisdiction, he could inquire into it. This was of course correct. He expressed the view that NWH had an arguable case that he had jurisdiction and decided that the adjudication should continue "unless and until the court finds that my views expressed above are incorrect". Again this seems to me to be have been a sensible and pragmatic decision although it might not be right in another case. (For the purpose of the questions that I have to consider I have not taken into account the adjudicator's reasons for his opinion or his decision to proceed.) On 26 July ABB thus issued a claim under Part 8 of the CPR and made an application for the orders sought in it. The evidence was completed by 27 July and the claim was heard on 28 July.

3. The facts are found in the witness statements of Mr R.B. Bramhill, ABB's Regional Manager, and Mr George Merton, NWH's Commercial Manager. ABB is building three HRSGs as part of a project to extend an existing power station at Peterhead in Aberdeen. It is known as the "Peterhead Repowering Project". The location where the work is being carried out is separated from the existing power station by "the Construction Site Fence" and is known for the purposes of the contract as "the Construction Site", as opposed to "the Power Station Site". A plan produced by Mr Merton showed the division and the three boiler houses (denoted UHA) within which ABB is constructing the HRSGs. The insulation work required to pipework took place within the three boiler houses and within three metres of the boilers and did not require work to any existing pipework with which the new pipework connected.

4. On 19 November 1999 ABB placed an order with NWH for insulation works as the culmination of discussions which had begun in mid-1998 (as appears from the dates of NWH's quotation and amending letters or faxes). Originally NWH had been asked only to install insulation to clad pipework, drums and various parts of the equipment, with the material being supplied to it by ABB as "free issue". ABB and NWH had however agreed in October 1999 that since the cladding received by ABB was in large coils or rolls NWH should also pre-fabricate and deliver the insulation for a lump sum. Some faxes from ABB referred to ABB's order or sub-contract number (0767). The scope of the insulation work was indicated in NWH's fax of 13 October 1999 as:

"Piping, Fittings and Valves associated with UHA 11, 12, 13 Boilers. Isometric List attached.

Piping, Fittings and Valves associated with Steam drum Pipework. Transmittal attached.

HP, IP and LP Steam Drum and Blowdown Vessel."

NWH received a formal SI 023062 referable to the sub-contract dated 15 December 1999 which required or authorised the pre-fabrication and delivery of the material. The sub-contract was subject to the Model Conditions of Contract for Repair and Modifications and Rehabilitation of Boilers and Associated Plant (GB/WTBA Conditions RMR 1980) (as modified by ABB's own conditions) but it was not suggested that the choice of the conditions was relevant to the issue that I have to decide. ABB's standard conditions provided for adjudication if the works fell within Part II of the Housing Grants, Construction and Regeneration Act 1996. (The contractual documents do not otherwise need to be referred to.)

5. As the issue has developed I have been asked to consider three possibilities:

(1) there were two subcontracts

(a) for the installation of the insulation or cladding and

(b) for its prefabrication;

(2) although the subcontract was originally to be for installation only it came to include prefabrication by the application of the principle of "relation back", as best exemplified by the well-known case of Trollope & Colls v Atomic Power Construction [1963] 1 WLR 333.

(3) the subcontract was for installation only but was varied by, for example, SI 023062 to include prefabrication.

I do not have to decide which is correct nor have I the material to do so.

6. Mr Bramhill's statement says that the insulation or cladding was for "boilers, ducting, silencers, pipework, drums and tanks" without which "there would effectively be no plant at all". He then states what is obvious but which has formally to be found, namely that without insulation to provide protection against internal heat of about 530^o C (with a design maximum of 630^o C) the boiler casings would disintegrate within days and would be too hot for anybody to approach safely and that insulation of all the equipment for the plant was necessary to ensure that it and that the process in its entirety were safe, workable, and efficient.

7. ABB's case is that, whichever of the three analyses of the subcontract is selected the subcontract comes within section 105(2)(c) of Part II of the Housing Grants, Construction and Regeneration Act 1996 and thus there is no right to require any dispute arising under it first to be referred to adjudication as provided by section 108 of that Act. Accordingly NWH ought not to have asked for an adjudicator to be appointed and Mr Holloway has no jurisdiction to decide the dispute mentioned in NWH's notice. ABB also claim damages from NWH for having invoked adjudication, contrary to an implied term of the subcontract but since that claim depends either wholly or in part on the outcome of ABB's principal case, it has been agreed that I ought only to decide the jurisdictional issue.

8. The relevant sections of the Act read as follows:

"104 (1) In this Part a "construction contract" means an agreement with a person for any of the following-

(a) the carrying out of construction operations;

(b) arranging for the carrying out of construction operations by others, whether under sub-contract to him or otherwise;

(5) Where an agreement relates to construction operations and other matters, this Part applies to it only so far as it relates to construction operations.

An agreement relates to construction operations so far as it makes provision of any kind within subsection (1) or (2).

105 (1) In this Part "construction operations" means, subject as follows, operations of any of the following descriptions-

(a) construction, alteration, repair, maintenance, extension, demolition or dismantling of buildings, or structures forming, or to form, part of the land (whether permanent or not);

(b) construction, alteration, repair, maintenance, extension, demolition or dismantling of any works forming, or to form, part of the land, including (without prejudice to the foregoing) walls, roadworks, power-lines, telecommunication apparatus, aircraft runways, docks and harbours, railways, inland waterways, pipe-lines, reservoirs, water-mains, wells, sewers, industrial plant and installations for purposes of land drainage, coast protection or defence;

(c) installation in any building or structure of fittings forming part of the land, including (without prejudice to the foregoing) systems of heating, lighting, air-conditioning, ventilation, power supply, drainage, sanitation, water supply or fire protection, or security or communications systems;

(d) external or internal cleaning of buildings and structures, so far as carried out in the course of their construction, alteration, repair, extension or restoration;

(e) operations which form an integral part of, or are preparatory to, or are for rendering complete, such operations as are previously described in this subsection, including site clearance, earthmoving, excavation, tunnelling and boring, laying of foundations, erection, maintenance or dismantling of scaffolding, site restoration, landscaping and the provision of roadways and other access works;

(f) painting or decorating the internal or external surfaces of any building or structure. .

(2) The following operations are not construction operations within the meaning of this Part-

(a) drilling for, or extraction of, oil or natural gas;

(b) extraction (whether by underground or surface working) of minerals; tunnelling or boring, or construction of underground works, for this purpose;

(c) assembly, installation or demolition of plant or machinery, or erection or demolition of steelwork for the purposes of supporting or providing access to plant or machinery, on a site where the primary activity is-

(i) nuclear processing, power generation, or water or effluent treatment, or

(ii) the production, transmission, processing or bulk storage (other than warehousing) of chemicals, pharmaceuticals, oil, gas, steel or food and drink;

(d) manufacture or delivery to site of-

(i) building or engineering components or equipment,

(ii) materials, plant or machinery, or

(iii) components for systems of heating, lighting, air-conditioning, ventilation, power supply, drainage, sanitation, water supply or fire protection, or for security or communications systems,

except under a contract which also provides for their installation;

(e) the making, installation and repair of artistic works, being sculptures, murals and other works which are wholly artistic in nature.

(3) The Secretary of State may by order add to, amend or repeal any of the provisions of subsection (1) or (2) as to the operations and work to be treated as construction operations for the purposes of this Part."

9. The question is therefore whether the subcontract is for the "assembly or installation ... of plant or machinery ... on a site where the primary activity is ... power generation ..." and so, by reason of section 105(2(c)(i), were not "construction operations" for the purposes of section 104 and 105(1) of the Act. NWH's case included the proposition that the word "is" meant what it said and was not to be read as "will be". This was referred to in argument as "the temporal point".

10. The submissions were mainly directed to the possibilities to which I have referred in paragraph 5(2) and (3) above. They did not initially deal with the position if there were two subcontracts. The second (see paragraph 5(1)(b) above) might be for "operations which form an integral part of, or are preparatory to, or are for rendering complete, such operations as are previously described in this subsection..." (section 105(1)(e)). However section 105(2)(d) states that construction operations do not include the "manufacture or delivery to site of- (i) building or engineering components or equipment, (ii) materials.....or (iii) components for systems of .... power supply... ." In my judgment the off-site fabrication or pre-fabrication and delivery of materials such as insulation or cladding (even if it is to be installed or fixed by the same person) would fall within section 105(1)(e) (if that sub-section stood alone) as the work is, at the lowest, necessary to render complete the on-site insulation. However it is not a construction operation since section 105(2)(d) declares that the "manufacture or delivery to site of ....engineering components.... [or] materials .." do not constitute "construction operations". The insulation or cladding was an "engineering component" and was certainly "materials". There are additional reasons for so reading the Act which I set out later. In view of the events leading up to SI 023062 the first possibility seems the least likely so this point may not need to be considered further. Mr Nissen also submitted that if there had been a variation to require pre-fabrication then, taking account of the quiddity of the first part of section 104(5), the work either did not come within section 105(1) at all or attracted the concluding words of section 105(2)(d) as the contract provided for its installation, as that exception to the exception made by section 105(2)(d) did not apply where the installation work was excluded under section 105(2)(c).

11. The submissions made on behalf of NWH by Mr John Blackburn QC and Mr Andrew Goddard necessarily raised the general approach to the interpretation of sections 104 and 105. It was common ground that

(1) Part II of the Act made two reforms (a) to confer on parties to an eligible "construction contract" the right to refer a dispute to adjudication under a procedure which complied with the Act; (b) to confer a right under such a contract to interim payments, to regulate the circumstances in which payments were to be made or might not be made, to permit a party to suspend performance for non-payment and to prohibit certain instances of "pay when paid".

(2) NWH was carrying out work under a "construction contract" as defined by section 104 since it was work which fell within the description of "construction operations" in section 105 as it was either the "construction ....of any works forming, or to form, part of the land" (section 105(1)(b)) or was the "installation in any building or structure of fittings..." (section 105(1)(c))

As already stated, the primary issue was therefore whether the installation of insulation nevertheless was not a construction operation as it was the "assembly, installation ... of plant ... on a site where the primary activity is .... power generation..." (section 105(2(c)).

12. Mr Blackburn had a general submission that the Act was so replete with seemingly irrational distinctions that it was necessary for ABB to demonstrate clearly that the work in question fell clearly within section 105(2)(c) or (d). For example, the constructional steelwork industry, when carrying out work on a site where the primary activity is the production of pharmaceuticals, oil, gas, steel or food or drink, is exempt, but it enjoys no such privileges if the structure is primarily for the warehousing of food or drink. These apparent oddities were considered by His Honour Judge Thornton QC in Palmers Ltd v ABB Power Construction Ltd [1999] BLR 426 to which I was referred by Mr Nissen - see in particular his views at paragraphs 29-31 (at pages 433-434). Like Judge Thornton I find them instructive. The Act was intended to put right problems that were perceived to exist. It is well known that the Act legislates for only a small number of the reforms or changes in practice that were thought to be required (some of which will not be eradicated by passing new laws). Accordingly not only must it be assumed that the Act was carefully drawn up but it is also plain that great care was taken in selecting the construction operations that were to be exempt and in defining the circumstances where they might be found. Parliament and the Ministers responsible were informed by the discussions prior to the relevant sections (or clauses) being presented to Parliament, by consultations within the industry, sections of which must have had compelling arguments for exemption, and above all, no doubt, by the inquiries and soundings by the Department of the Environment (as it was then known) which had unrivalled knowledge of the construction industry. A most through investigation was evidently carried out for otherwise the Government and Parliament could not have been convinced that certain sectors of the construction industry were already so well organised that no regulation of any of their contracts or sub-contracts (at whatever level or tier) was needed. Indeed one cannot be but impressed by the detail of the work done, presumably by officials by the DOE: drilling for oil and gas is excluded but drilling for water (even if it is ultimately to be treated) is not; a project for tunnelling to lay a sewer (even if it is going to a sewage works) or to construct a railway has to be regulated but not a project requiring a tunnel for minerals; installing plant for nuclear processing, and power generation, or for water and effluent treatment is excluded but not plant for an incinerator. The wide immunity given to work in, for example, the water, oil and gas industries must be seen as is a tribute to them (and for all who carry out construction work for them) either for the absence of malaises which had been found to bedevil others, such as the prevalence of disputes and the presence of "pay when paid" clauses, or for the fact that the reforms required by the Act were not needed or had been carried out (as Judge Thornton recorded in paragraph 29 of his judgment in ABB v Palmer). Moreover it is two years since the Act came into force and no alteration has been thought necessary under the powers given by section 105(3) (with one exception which is not material to the present case).

13. Mr Blackburn submitted that section 105(2) should be read as a whole. I agree. It must also be read in the context of sections 104 and 105(1). In my judgment section 105(2) when compared with section 105(1) therefore shows that it was the intention of Parliament that exemption should be given by applying an additional and different test: was the object of the "construction operation" to further the activities described in section 105(2)(c) (and in paragraphs (a) and (b)) since in those industries or commercial activities it was not thought necessary that at any level there need be a right to adjudicate or to payment as provided by the Act. Sub-section 105(1) provides conventional descriptions of various kinds of work or services. Paragraph (d) of sub-section 105(2) does the same. In contrast the remainder of the sub-section, whilst outlining an operation, qualifies it by reference to the ultimate purpose for which the operation is required: the exploitation of oil or gas (paragraph (a)); the extraction of minerals, eg coal mining or quarrying (paragraph (b)); a wide variety of disparate industries (paragraph (c)); the creation of art (paragraph (e)). In addition paragraph (c) makes explicit the need to identify the site or location of the activity and to ensure that it is the primary or dominant activity since of course the activities listed may be ancillary to the principal activity. The reason must in my judgment lie in the purpose of the legislation. The two specific objectives - resolving disputes swiftly but provisionally and regulating interim payments - are intended to correct two common areas of friction between contracting parties. The overall objective was to promote better relationships. There was no longer to be a lack of regulation which in certain instances would lead to unfairness stemming from constraints that paying parties might place on recipients either in deferring payments or in the arbitrary withholding of money that was truly due. In addition all classes of dispute were not to be allowed to fester and their resolution postponed until they were resolved by litigation or arbitration. Either party could get a decision swiftly which, as it would be provisionally binding, would enable the parties to put the matter behind them and to get on with the work, leaving the final inquest until later, probably when the work was completed. Relationships ought thus to be preserved or restored and the concept of teamwork realised or saved from material damage. Adjudication could be sought "at any time", ie early on even though, as it has turned out, it is at times not being used to resolve disputes contemporaneously but much later, even after the time when they could have been the subject of a judgment or arbitral award. It is clear from the wide language of sections 104 and 105(1) that Parliament wished to ensure that these regimes would apply on every site and for every project.

14. Similarly it is in my judgment clear from the language used in section 105(2) that it was intended that, if the regimes were not to apply, it would be invidious if they applied to some but not all construction contracts on a site or for a project. Defining the exempt construction operations by reference to the nature of the project or by reference to a site should minimise the possibility that, for example, one contractor or sub-contractor would think that it was better or worse off than another working alongside it, or preceding or following it. That would not be conducive to the purpose of the legislation and would be inimical to the establishment or maintenance of harmonious working relationships and the concept of teamwork. Section 105(2) plainly reflects the fact that the majority of construction work done for the purposes set in paragraphs (a) to (d) is carried out by contractors responsible for design or performance and for owners or employers most of whom take an active interest in seeing that every aspect of the project should properly planned and co-ordinated. Such involvement minimises the incidence of disputes at every level or tier. The object of this sub-section is therefore that all the construction operations necessary to achieve the aims or purposes of the owner or of the principal contractors (as described in it) would be exempt. If these approaches are correct then an interpretation should be given to section 105(2) which would further and not thwart them. As a preliminary submission Mr Blackburn had suggested that, as a piece of reforming legislation, section 105(2) deserved to be put on a par with the Misrepresentation Act 1967 and to receive the same critical condemnation as a section of that Act was given by Atiyah and Trietel in their well-known commentary on the Act (1967) 30 MLR 369 at page 385:

"The truth is that this section is an abdication by Parliament of its proper responsibility in the formulation of policy for satisfactory law reform. It is little short of scandalous that no attempt has been made to indicate the circumstances in which exempting clauses should be permissible."

Whilst there are obvious difficulties in discerning precisely why, for example, all construction operations on a site falling within paragraph (d) are not exempt, there is in my view sufficient guidance in the Act for a sensible and, as it is said, purposive interpretation to be given which should fulfil and not stymie the intention of Parliament. I decline Mr Blackburn's implicit invitation. Criticism of that tenor, if it were appropriate to this Act, is the privilege of commentators.

15. Do therefore the words "assembly, installation ... of plant" cover the provision of insulation and cladding to the pipework, boilers etc? Mr Nissen referred to Homer Burgess Ltd v Chirex (Annan) Ltd [2000] BLR 124 where at page 135 Lord Macfadyen said in relation to the question whether under section 105(2)(c) pipework was "plant":

"I am of the opinion that the pipework was clearly part of the plant being assembled or installed on the defenders' site. Without such pipework, the individual pieces of machinery or equipment would be unable to operate. The pipework is in a real sense, part of the apparatus which, once it was installed, the defenders were going to use in order to carry on their business of manufacturing pharmaceuticals. The installation of the pipework was in my opinion an operation which fell within the scope of the exception in section 105(2)(c)(ii) was accordingly not a construction operation. The disputes relating to that work were therefore not disputes on which the adjudicator had power to make a decision."

Mr Blackburn and Mr Goddard submitted that better guidance was to be found in a decision of Blackburne J about section 24 of the Capital Allowances Act 1990, rather than a decision concerning this Act: Bradley v London Electricity plc reported briefly but adequately in The Times of 1 August 1996. In that case the question was whether the structure of and surrounding a massive substation two metres below Leicester Square in London was part of a single unit of plant (which the transformers and cables otherwise comprised). It was held that since it did not perform "any plant-like function" the structure was no more plant than purpose built kennels, a specially designed planteria or car wash halls. I do not consider that a decision on such an Act which has markedly different provisions and objectives is of relevance. However the evidence is that the provision of insulation is an integral part of the construction of pipework, boilers and the like which are required so that power may be generated. Hence if the test were: Does the installation of insulation perform a plant-like function? then the answer is undoubtedly: Yes. Without insulation the pipework, boilers etc would not function as they are designed to perform, nor could the plant be operated safely and efficiently. I agree entirely with Lord Macfadyen's approach. In my judgment any work that would be a construction operation within section 105(1) which is necessary for the full and proper assembly or installation of plant so that it will fulfil the purpose or purposes for which it is intended is exempt by reason of section 105(2)(c) (assuming that the condition relating to the site is also satisfied). It would not in my view make any sense if, for example, a sub-contractor providing paint systems or cathodic protection systems necessary to protect plant against erosion or corrosion, to take two instances, were not exempt whereas only the basic installation (whatever that might mean) of the plant itself were exempt. Where would the line be drawn? This Act has to be applied by people within the construction industry. It should be read and construed on the assumption that the answer is clear to a layman. In addition, as I have already set out, to make fine distinctions of this kind would be likely to inhibit the uniform management of contractors working alongside each other on the same site or for the same project and would not be consistent with the overall purpose of the exemptions in section 105(2) which are defined by reference to the nature or aims of the those responsible for promoting or implementing the scheme, project or activity, rather than by reference to the many individual construction operations required for the drilling for or extraction of oil; for the extraction of minerals; for the assembly or installation of plant (eg tracks, foundations and other preparatory operations for assembly or installation of plant or machinery, cranage, staging, control systems and accommodation for controllers, testing and commissioning and the like). The Act calls for distinctions which are based on operational or engineering considerations. Plant and machinery can readily be distinguished from factory roads, administrative offices etc; steelwork is exempt only if required for the purposes of supporting or providing access to plant or machinery.

16. Thus if the subcontract were either for the installation of insulation or cladding alone or were to include also prefabrication or delivery then its subject matter is "assembly or installation ...of plant" for the purposes of section 105(2)(c). If the subcontract were for the provision of prefabrication or if the addition by way of a variation or otherwise of the prefabrication and delivery did not strictly form part of the sub-contract for installation then section 105(2)(d) applies for the reasons that I have given. If however the prefabrication and delivery formed part of a subcontract which required their installation then the effect of section 104(5) is overridden by the concluding words of section 105(2)(d) so as to pose the question: does the installation constitute a construction operation to which section 105(1) applies or is it an exempt operation under another part of section 105(2)? In this case the answer is that the installation falls within section 105(2)(c) for the reasons already set out.

17. I now turn to the "temporal point". Mr Blackburn and Mr Goddard argued that in any event whichever possibility applied, the subcontract work was not "on a site where the primary activity is - ... power generation". The word was not "will be", still less "or will be". Mr Nissen submitted that the present tense was used throughout - see section 104(1)(a) but all construction operations are of necessity to be carried out in the future, viewed at the date of contract (or deemed start where the notion of "relation back" applies). Mr Nissen also submitted that the interpretation advanced on behalf of NWH made little sense for it would mean that work done to improve an existing complex would be exempt whereas work for a new project would not. In argument I gave an illustration which Mr Nissen adopted: if an undertaking were to wish to extend its activities and could do so within the curtilage of its existing site but it had to cross the road to build on vacant land then work done there would not be exempt even if it might be physically connected with the main site, eg chemicals might be piped across the road from the new site to be processed on the original site.

18. I cannot believe that it was Parliament's intention that there should be such an absurdity, especially since it is applied by non-lawyers. I accept Mr Nissen's submissions. This Act is concerned with work which will be carried out. Section 105(1)(a) and (b) explicitly refer to the construction of buildings or structures "forming, or to form, part of the land ..." [my emphasis]. Even allowing for some of the exclusions and inclusions in section 105, when one takes into account the overt purposes of the Act I can see no logic in permitting a major sub-contractor to require sub-sub-contractors to accept a "pay when paid" provision simply because the work is to do with an extension to an existing production plant or factory whereas no such exemption applies if the work is for an entirely new scheme.

19. At first sight I thought that the temporal point might lead to a conclusion that there some ambiguity in the word "is". Having had the benefit of counsel's oral submissions I have no doubt about my conclusion. Mr Nissen did however provide references to the debates in Parliament but even if there had been ambiguity or other reason to refer to them, I do not consider that they indicate that NWH's case is correct. The point does not appear to have debated at all. This in itself may show that nobody thought that the exemption in section 105(2)(c) did not extend to work on site where the qualifying activity would only come into existence on completion of the work.

20. In any event even if I am wrong in concluding that section 105(2)(c) applies as much to the future as to the present the evidence of Mr Merton shows that the installation work is taking place on a site where the primary activity is now power generation. The facts that a fence has been erected and that for operational reasons one side is designated a Construction Site are in my view irrelevant. Even if the fence is not required for reasons of health and safety or under the CDM regulations, it denotes no more than the customary separation of the "live" side. For the purposes of section 105(2)(c) there is here only one site.

21. Accordingly ABB is entitled to the declarations sought and, subject to any further submissions, and unless a satisfactory undertaking is given, a mandatory order restraining NWH from proceeding with the adjudication and from taking any steps to enforce any decision in the unlikely event that Mr Holloway might now make one.