WHAT IS THE ‘PRIMARY ACTIVITY’ OF A ‘SITE’?

Conor Engineering Ltd v Les Constructions Industrielle de la Mediterranee [2004] EWHC 899 (TCC); [2004] BLR 212

In Conor Engineering Ltd v Les Constructions Industrielle de la Mediterranee [2004] EWHC 899 (TCC); [2004] BLR 212, Mr Recorder David Blunt QC, sitting as a Deputy Judge of the Technology and Construction Court, held that the identification of ‘the primary activity’ of a site for the purpose of s105(2) of the Housing Grants, Construction and Regeneration Act 1996 (hereafter ‘the 1996 Act’) is a question of fact in each case. On the facts of the case he held that the ‘primary activity’ on the site was not ‘power generation’ but waste incineration with the consequence that the contract between the parties did not fall outside the scope of the Act. Further, he held that the defendant had failed to serve a valid withholding notice so that it not entitled to set off its claim for liquidated damages against the sum which the adjudicator directed it must pay to the claimant.