Construction Brief: latest decisions March 2026

We briefly summarise some recent case decisions which touch on the following issues: adjudication rights in joint venture contracts, the Building Safety Regulator’s new powers and the interaction between planning permissions and restrictive covenants 

Adjudication Rights in Joint Venture Contracts

Darchem Engineering Ltd v Bouygues Travaux Publics & Anor [06.02.2026] 

This recent decision of the Technology and Construction Court (TCC) provides useful clarification on adjudication rights in joint venture contracts. 
 
The dispute related to a contract entered into between two Joint Ventures (“JV”) (“the Subcontract”). The main contractor was an unincorporated JV known as ‘BYLOR’. The subcontractor was another unincorporated JV consisting of Darchem Engineering Ltd (“Darchem”) and Framatome Ltd, known as ‘EDEL’. The Subcontract concerned the procurement, off-site manufacture, pre-fabrication, factory testing and installation and testing of stainless-steel pools, pits and tanks for Hinkley Point C nuclear power station in Somerset. 

Following a dispute between the parties, Darchem commenced three separate adjudication proceedings in its own name stating that it was “acting jointly and severally as the Subcontractor” in accordance with the Subcontract. BYLOR contested Darchem’s entitlement to bring adjudication proceedings under the Subcontract on the basis that Darchem was not in itself a “party” to the Subcontract and was not entitled to bring an adjudication pursuant to the relevant dispute resolution provisions within. Darchem sought to rely on various clauses of the Subcontract which allowed ‘any party’ to bring adjudication proceedings.  The adjudicator rejected BYLOR’s challenge and, in the third adjudication, awarded Darchem £23,944,012 (“Award”). Darchem sought summary judgment to enforce the Award. 

The TCC reasoned that the question of jurisdiction was whether one entity within a subcontracting JV was entitled to bring adjudication in its own name, rather than together with the other company in the subcontractor JV. The TCC disagreed with Darchem after reviewing the definition of ‘Party’ within the overall context of the subcontract.  The TCC held that ‘Party’ was clearly defined as simply ‘the Contractor and Subcontractor’, as opposed to naming each entity within the respective joint ventures. It also noted that throughout the Subcontract, every reference to ‘Party’ supported this bilateral definition. 

The TCC reasoned that Darchem executing the deed in its own name, or having joint and several liability, was merely a loophole to rectify the lack of legal personality attributed to joint ventures. Ultimately, the TCC held that Darchem was not a ‘Party’ as defined in the Subcontract and was not therefore entitled to commence adjudication unilaterally.  

This decision provides a helpful reminder for contracting parties to ensure that defined terms in contracts are clear and careful consideration is given to the impact of the  definitions of the parties in the contract on the dispute resolution mechanisms, particularly when the contract involves JV structures. Ensuring clarity of defined terms will ultimately avoid uncertainty and confusion around contractual obligations and dispute resolution mechanisms, which are fundamental to ensuring continuity of projects. 

Authors: Sayeeda Nur and Lourenzo Fernandez 

Building Safety Regulator found to have acted ultra vires

Thursfield v The Building Safety Regulator [09.12.2025]

This decision, handed down by the First-Tier Tribunal (“FTT”) concerns the extent to which the Building Safety Regulator (“BSR”) can use its own expertise to rely on new grounds of non-compliance with the Building Regulations 2010 (“the Regulations”). 

The Regulations were extensively amended by new regulations in 2023. The new regulations included Regulation 18A which states that where a person’s local authority has refused to grant them a building certificate (completion certificate), that person can appeal the refusal to the BSR.

In 2022 when Mr John Thursfield was carrying out a loft conversion and side extension to his property at 30 Burstock Road, the Approved Inspector became insolvent. Mr Thursfield requested a regularisation certificate, under Regulation 18A, from the Local Authority Building Control (“LABC”). Following the LABC’s refusal to grant the certificate, Mr Thursfield appealed to the BSR on the basis that the LABC had refused to provide reasons for its refusal as required. On appeal, the BSR agreed with the LABC and refused the certificate however the BSR introduced new grounds for refusal. Mr Thursfield appealed the BSR’s decision to the FTT. 

The FTT provided useful commentary on the BSR’s appeal jurisdiction in Regulation 18A and on the BSR’s responsibilities more generally. In determining the BSR’s jurisdiction to appeal, the FTT held it necessary to consider if the decision made by the LABC is ‘bad’ (Regulation 18A(2)). If the answer is ‘no’ then the applicant’s appeal is refused. However, if the answer is ‘yes’, the applicant’s appeal must be allowed. When allowing the appeal, the BSR may only quash the LABC’s decision or vary it - the BSR cannot do both simultaneously.  

The FTT commented that the BSR has no authority to introduce its own basis for suggesting that the building does not conform with standards, being the decision-making power conferred on the LABC. The BSR’s appeal jurisdiction is confined to the LABC’s decision. The FTT therefore reasoned that the BSR’s decision was ultra vires as it was plainly a refusal on the basis of its own grounds. 

The FTT held that the BSR’s decision should be varied to: (a) uphold Mr Thursfield’s appeal of the LABC’s decision and (b) grant the regularisation certificate that Mr Thursfield had been seeking.

The FTT’s decision however highlighted the lack of clear guidance for the BSR in undertaking its mandate of regulating higher-risk buildings and improving competence across the whole built environment. In this regard, the FTT observed that the BSR is not as well-resourced as its responsibilities appear to require. However, the FTT expressed hope that the BSR will take the lessons from the case as an opportunity to consider its processes, particularly given the BSR’s recent move to becoming a standalone organisation. 

Authors: Cameron Grant and Lourenzo Fernandez 

Related items: UK construction sector: what’s on the cards for 2026

Section 84 of the Law of Property Act 1925: Planning Permissions and Restrictive Covenants

Hassan & Osman v Heath [2025]

The Upper Tribunal’s decision in Hassan & Osman v Heath [2025] provides helpful guidance on the interaction between planning permissions and restrictive covenants, and on the growing importance of establishing a “cynical breach” factor. 

The application concerned two properties, No. 24 (the Applicants’ property) and No. 24A (the Respondent’s property). The Applicants’ property was subject to a covenant prohibiting elevation alterations (“Covenant”). Neither the Applicants nor the Respondent were original parties to the transaction imposing the covenant. 

The Applicants intended to build an extension of the ground floor, and extension and conversion of the loft. In doing so, the Applicants sought to modify the Covenant under s84(1)(aa) of the Law of Property Act 1925 (“LPA”). This ground is satisfied where the restriction impedes “some reasonable user of land for public or private purposes” and “does not secure to persons entitled to them of it any practical benefits of substantial value or advantage to them”. 

The Tribunal was required to consider both the Applicants’ wish to develop their property to accommodate the needs of their disabled son and the Respondent’s desire to enjoy his own property. The Respondent argued that the roof works would negatively impact his conservatory, and that the ground floor works would cause light pollution and would be in conflict with the character of the area. 

The Tribunal exercised its discretion under s84(1)(aa) LPA to modify the restrictive covenant in part; to permit ground floor works to a neighbouring property, but not the roof works which, despite having planning permission, would have a significantly overbearing effect on the Respondent’s conservatory and garden.

The Tribunal also considered whether there had been a “cynical breach” in the exercise of the discretion to modify or discharge the Covenant. The term “cynical breach” refers to “deliberately committing a breach of the restrictive covenant with a view to making profit from so doing”. The Tribunal reasoned that the Applicant’s conduct was found not to be cynical: “I do not consider that the applicants have 'cynically breached' the restrictions. They appear to have been ill-advised, and possibly naïve. Once the injunction was in place, after some work to keep the property watertight, work stopped. Nothing has been done to the roof.”

Whilst the courts are generally resistant to interfering with private property rights, the decision shows that the courts will attempt to strike a balance between the parties’ burdened and benefiting from modifying restrictive covenants. Whilst planning permission can be material in this assessment, it is not conclusive in determining whether a proposed use is reasonable under s84(1)(aa) LPA.  

Authors: Emily Devine and Lourenzo Fernandez