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Blog: Building a sustainable future

Claire Tait

Clare Tait, an environmental advisor at Kier, discusses her route into construction and the hugely varied role that she carries out as a woman in the sector.

It’s hard to imagine that reviewing tree root protection plans or land remediation strategies as part of a construction job, but this is indeed part of my varied role as an environmental adviser at Kier.

I’ve always liked being outdoors and a week of office life during my high school work experience confirmed for me that I did not want an ordinary desk job. At university I picked Environmental Management because I had loved geography at school, but I wasn’t really sure what it would lead to.

I fancied working in the built environment and after I finished my degree I sent my CV off to many companies. Kier Construction Scotland responded to invite me for an interview and I was offered a permanent position which included being part of the Group’s three year graduate scheme. Since then, I haven’t looked back.

Joining the construction industry has certainly given me more than I bargained for! As part of Kier’s graduate scheme, I’ve been able to experience working in other areas of the Group and I’ve also learned new skills, such as undertaking dormouse and newt surveys. I’ve taken part in professional development courses designed to grow and retain future talent to the business, plus I’ve been lucky enough to work with local charities and Third Sector Organisations, such as Community Wood Recycling which collects and reuses wood waste in environmentally-friendly ways.

What’s more, Kier has paid for my professional training at the Institute of Environmental Management & Assessment where I recently passed my Practitioner Exam and can now start working towards becoming fully chartered.

My day to day role involves making sure that every project has a sound environmental plan in place. I cover the whole of Scotland and the north east of England, from Middlesbrough to the Orkney Islands.

During the project pre-construction phase, I review client site investigations and ecological surveys. I also advise on mitigation measures, waste minimisation techniques, silt management, and help implement site-specific environmental plans. These can range from assisting with remediation strategies to looking for biodiversity enhancements. Once we are in the construction phase, I regularly inspect our sites to ensure we are compliant.

The construction industry is at a great place where sustainability is becoming increasingly important to clients and its end user. Kier has various targets to reduce energy consumption, waste and water and to enhance the environment surrounding the projects in which we build.

Being part of these new initiatives and involved in implementing best practice is one of the things that I love about my job. Every year we get to run an Environment Week where we have guest speakers, toolbox talks and workshops across the country to raise awareness on the environment. Next week I will be presenting at a Supply Chain Sustainability workshop discussing sustainability within construction.

I’m rarely in the office and the variety of work is both fun and constant. I’ve developed a children’s environment activity booklet which won two Green Apple Awards and have taken part in a STEM (Science, Technology, Engineering, and Math) project with schools where pupils created an eco-hotel and presented at a Supply Chain Sustainability School workshop. No two days are ever the same, and I wouldn’t have it any other way!

But I am one of the lucky ones who stumbled into this exciting career. Unfortunately, construction has a perception issue and most people think it is all about men wearing hard hats. It’s not. As a young female entering the industry, I have found it welcoming and rewarding.

The type of jobs on offer in construction are varied – from working outside on site, to managing ecology or health and safety, designing buildings, and even developing new materials. We need engineers, scientists, environmental managers, robotics specialists and craftspeople, to name just a few of the huge variety of opportunities in the sector. And the great thing is that there are so many ways to start a career in construction through apprenticeships, foundation degrees and graduate schemes.

We still have more work to do to change this misperception of women working in construction and to show them that construction provides limitless opportunities for women and young people and offers a rewarding and fulfilling career.

It’s something I hope to see communicated more within schools and via career advisors, and I am proud to be part of a company which is proactively addressing this. As part of their Shaping Your World initiative, Kier has pledged one percent of its workforce to act as school career ambassadors, working directly with schools to increase the profile of construction. I hope this helps young people open their eyes to the diverse and exciting world of work waiting for them.

  • Clare Tait is environmental advisor for Kier Construction Scotland

Blog: Under the hammer – Compulsory Sale Orders explored

Kathie Pollard

Scottish Land Commission policy officer, Kathie Pollard, looks at Compulsory Sale Orders.

According to statistics published by the Scottish Government, Scotland has 12,435 hectares of vacant or derelict land (VDL) which has been issue that has been around for decades. These unloved sites are often seen as an eyesore, can be victim to vandalism, misuse, or are simply a longstanding area of neglect. This urban vacancy and dereliction is a problem. Neighbouring communities have been losing out on potential local development opportunities. By visualising these spaces as schools, workplaces, housing or community green spaces, such regeneration can significantly add social, economic and cultural value. With the right tools, Scotland can start to bring small blighted sites back into active use.

The Scottish Government’s Land Rights and Responsibilities statement (2017) says that landowners have public and private responsibilities. When an owner retains land and property indefinitely, without use or sale, it may fail to serve the public interest. A local authority that decides a vacant site could be put into an active use because it is in the best interest of the wider community, should be empowered to do so. A new owner could bring a small site into action, and if complying with a given timeframe it could see a rapid initial transformation.

If we want Scotland’s land to become more productive, efficient and equitable we must consider mechanisms such as Compulsory Sale Orders (CSOs). It is not a silver bullet but it could be a reserve power, like a Compulsory Purchase Order (CPO). CSOs could be a significant additional tool available to address vacant and derelict land. How so?

The introduction of powers for CSOs was one of the 62 recommendations of the Land Reform Review Group in 2014. It was one of nine recommendations directly relating to urban land assembly, housing and regeneration. The SNP committed to bringing forward legislation for compulsory sales orders during the course of the next parliament in its 2016 manifesto. It would be a new statutory power available to local authorities which could be used on a case-by-case basis. Once a site is identified as an appropriate CSO candidate and the CSO is triggered, the site would then be sold by public auction to the highest bidder. The auction process is key here. It allows the land to be sold at a price that the market is willing to pay.

Auctioning abandoned or unused land is not a novel idea. One can easily look at public auctions of brownfield land, both online or in person, to imagine how such mechanisms would work. A recent example of a brownfield site under the hammer include the 0.7 acre site, former road depot in Auchterarder which is near a residential expansion scheme and sold for £300,000. Internationally, compulsory sale auctions take place in Hong Kong under the Land (Compulsory Sale for Redevelopment) Ordinance. The context is different but the ambition to regenerate and bring vacant, derelict and empty land back into productive use, remains the same.

There are plenty of questions around how a CSO would work in practice and other complexities which are currently being teased out in robust discussion and research. It will be important to focus on the fair procedures of the auction and valuation. The Land Commission is in the process of gathering expertise and developing a proposal which will form the basis for a formal consultation on CSOs by the Scottish Government (find out more).

If we don’t have these conversations now, we are in danger of neglecting the potential of these small sites for many more years to come. Reinvigorating land through the compulsory sale of vacant and derelict sites could make a meaningful impact across Scotland.

This blog was originally published on the Scottish Land Commission website.

Blog: Workplaces, not just homes, are the key to regeneration

Guy Marsden

Guy Marsden, director at Highbridge Properties, who are developing the Magenta site in partnership with Clyde Gateway, says developing new workplaces is equally vital to delivering new homes.

Successful regeneration of our major cities is essential for our economy. As well as the thousands of new homes the Scottish Government wants to build, most people would agree that building new workplaces and attracting businesses to a regeneration area is equally vital. After all, sustainable new communities are ones which offer jobs and amenities as well as somewhere decent to live.

Take Clyde Gateway. This urban regeneration company is driving forward £1.5 billion of private sector investment to establish the Bridgeton, Dalmarnock and Rutherglen area as a hub of business activity, while hundreds of new homes are being built in the area as well.

Clyde Gateway is a fantastic success story.  Of the 800,000 square feet of Grade A office and industrial space that the urban regeneration company has already developed, over 85 percent has been let or sold. As a result, more than 5,000 jobs have come to the area over the past ten years.

But speculative office development like this has been rare in our cities in recent years. If this persists, the resulting shortage in high-quality office space and increasing rents could hinder economic growth and inward investment. Major regional cities like Glasgow and Edinburgh need innovative solutions to address these challenges.

I believe that increased support from the public sector to regenerate brownfield sites is the key to kick-starting inward investment from the private sector. In fact, it’s local authorities who have been increasingly supporting speculative commercial development across the UK often as part of a wider regeneration project.

This can take the form of providing funding at below market interest rates, or de-risking schemes by taking on the role as the over-riding tenant or anchor tenant. This is happening with increasing regularity in England where local authorities can supplement their rates base, secure inward investment and also boost employment by accepting an agreed risk profile.

Overview of the Magenta regeneration project

The public sector has played a part in many substantial and successful urban regeneration projects in England over recent years. Examples include the Greater Manchester Property Venture Fund, a sub-fund of Greater Manchester Pension Fund, the largest local authority pension fund in the UK. It invests in property development and redevelopment opportunities, particularly industrial sites, in north-west England. Most of its investment has been in commercial property – such as One St Peter’s Square in Manchester – with the aim not just of making money but of helping regenerate the local area. And it works.

Another example is our Cobalt business park near Newcastle, an office scheme of over 2m square feet, which transformed a brownfield site and brought 14,000 jobs and big name companies like Hewlett Packard, Santander, Proctor & Gamble, Newcastle Building Society and Accenture to the area. North Tyneside Council committed to the venture at an early stage by moving its headquarters and 1,600 staff to Cobalt. The success of this park, in the geographical centre of North Tyneside, encourages business to the area, stimulates inward investment and results in people moving there to live and work.

Clyde Gateway has already invested £20m in public realm and infrastructure works to the former Shawfield site – now known as Magenta – to ensure it is development-ready. The scheme also benefits from the transport infrastructure upgrades from the Commonwealth Games including a new station with a direct link to Glasgow Central and motorway extension. Now is the time for the Scottish Government to take inspiration from south of the border and invest in Magenta’s transformation from a great site into a thriving office park that will become the beating heart of the area’s economy. A speculative build or an anchor tenant might be the thing that starts the ball rolling – where they lead, others will follow.

There are already 2,500 homes in the immediate vicinity of Magenta, a number which could grow to 6,000 in the near future. With thousands more jobs on the doorstep for local people, Clyde Gateway could become an international exemplar of how economic, social and physical regeneration can – and should – be done.

Blog: Large framework contracts in the construction sector

John Forbes

CECA Scotland member John Forbes outlines how Scottish SMEs could be adversely affected by the overly complex procurement practices coming down the line via the UK government’s £30 billion Crown Commercial Services Construction Works ‘Vehicle’.

The Crown Commercial Service is soon set to launch Europe’s biggest ever construction procurement Framework, covering public sector work right across the UK. There is no doubt that this will have major implications for SMEs in Scotland and across all regions of the United Kingdom, potentially shutting out many from bidding for public sector contracts and certainly increasing the cost of tendering.

Already, for most SME’s, the cost of participation in these types of framework is ever increasing as they evolve and the requirements necessary to satisfy the prerequisites within the documents grow. It takes considerable time and precious resource to participate in these procurement exercises, frequently with no clear indication as to what commercial opportunities, if any, will be available should contractors be successful and included on the frameworks.

A recent CECA briefing on the new £30 billion framework raises concern that if contractors do not participate there is every chance they may be excluded from public works over the coming years and that is a serious worry for SME’s.

We are already seeing the detrimental impact of the trend towards the use of large framework contracts. During recent months, we have seen a plethora of frameworks issued or notified by local authorities, procurement bodies, public bodies and housing associations covering defence, public, construction and civil engineering work as well as housing. During this period, we have had to decline opportunities as there are just too many to participate in and we do not have the resource nor finance available to participate in all prospects. This is impacting on SME’s right across our nation.

In our experience we have seen clients abandoning frameworks following the completion and submission of documentation due to a change of circumstance or incorrect procurement procedures being followed. On other occasions we have been fortunate and awarded work from clients despite not being one of their approved framework contractors. We have also experienced frameworks where little or no work is issued over the term. These factors erode your confidence and make you question the benefits of participating. However, you are ever mindful of the potential which may be missed if you do not.

The burden of working under the threat that one may be excluded from potential works from years to come is not to be taken lightly and having to participate in numerous exercises all with differing requirements is frustrating and costly. If the Crown Commercial Service and the UK government do proceed along this route of reduced volume but potentially enormous frameworks, then it may destroy smaller firms, who simply do not have the experience or resource to participate in these exercises. It may also harm SME’s if they miss or make an error in one submission resulting in the possible exclusion from millions of pounds of works for years to come.

Surely it is not unreasonable to expect the UK government to issue and adhere to a clear policy, which provides reasonable opportunities for firms to participate in construction works across the various sectors and regions in the UK, without multiple overlapping agreements being continually issued or the high risk route of one or two huge frameworks being adopted where a small number of multi-national firms will undoubtedly benefit, to the detriment of SME’s that are the lifeblood of Scotland’s civil engineering sector.

  • John Forbes is general manager of TSL Contractors Ltd

Just A Minute with Gerard McMahon, regional director at Esh Construction

Gerard McMahon

Name: Gerard McMahon, Esh Construction Ltd

Position: Regional Director (Scotland)

Which newsletter do you receive? Scottish Housing News and Construction Now. I like to read over these in order to get a good oversight on the industry and what new developments are both planned and underway.

How did you get started in the industry? I knew I always wanted to be involved in construction from a young age – my interest in the financial side of things very naturally led me to quantity surveying. I was fortunate enough to be offered a trainee QS position with a small house builder when I left school. From there I studied part-time at university, whilst getting hands-on practical experience on site. This proved to be a real grounding and meant I was able to fast track my career with real relevant and practical experience at a young age. I would recommend that anyone thinking about construction as a career choice explores the benefits of part-time learning whilst working.

Biggest professional achievement: My promotion to Regional Director with Esh. It was great to be considered and when I was offered the position it was a very big achievement for me, on both a personal and professional level.

Best advice you received: I have had a few invaluable pieces of advice throughout my career and have been fortunate to work with some very inspirational leaders. Being prepared and going above and beyond has always brought rewards. Also, always be open to change and, if you make a mistake, reflect on what you could have done differently and learn from it. An old boss used to regularly quote Albert Einstein, “the definition of insanity is doing the same thing over and over again, but expecting different results”. This stuck with me and I constantly review how I perform and what could be executed more efficiently and better – in both my personal and business life.

What is the most important part of the industry? This has to be the creation of new affordable housing. The Scottish Government’s commitment to £3bn investment for the creation of 50,000 homes by 2021 demonstrates the huge demand and current shortage we have in this country. This massive pledge signals not only a major step forward in tackling the housing shortage, but also creates wider benefits for job and training opportunities within the industry.

What do you like most about your job? I really enjoy being part of a growing business, seeing the team expand and grow. Being involved in the recruitment of new key members, working towards a common goal is really satisfying. I also enjoy the process of delivering projects, the enjoyment of winning new work, the handover of well delivered projects and building long-lasting relationships with clients and others within the supply chain.

And least? I know we live in a modern world, with wide variety of means of communication, but I think we perhaps rely too much on e-mail. I am a big fan of picking up the phone, and there isn’t an issue which cannot be solved with the right people sitting down round a table together.

What you would most like to change in housing? Quicker turnaround on developments, quicker planning processes, investment in infrastructure and more modern construction techniques being adopted and embraced.

What future issues do you see arising in housing? Keeping up with demand. The 50,000 new affordable homes commitment is a major step in the right direction, but there still is further work to do beyond 2021 to meet demand.

How would you change Scottish Construction Now? It would perhaps be good to see more recognition of, and articles relating to, community benefits and the good work some contractors are doing on added value.

Do you read a daily newspaper? The Herald and The Scotsman.

Which social media sites do you use?  LinkedIn

Which is the most useful for you? Linked in is a very good networking site and it’s always interesting to keep an eye on how former colleagues are doing.

Hobbies and interests: I have a big interest in football. My fitness levels not being what they used to be means I’m happy to watch rather than participate. Also I love to travel when I get the chance and visit new places.

Favourite holiday destination: I love to go on holiday. I enjoy a city break, Rome, Berlin and Barcelona being amongst my favourites, but for a summer holiday Orlando, Florida with the family has to be my favourite.

Blog: Changing the face of a career in construction

Allan Callaghan

As the construction sector becomes more diverse and lucrative, there is still more work needed to ensure it is viewed as a genuine career option for those seeking an aspirational career, says Allan Callaghan.

As industries continue to change and evolve, construction is going through its own transformation – shifting from a male-dominated, traditional profession to a much more innovative, diverse and collaborative industry with wider career horizons than ever before.

This bodes well, as much for the Scottish economy as the construction industry itself, because without change and diversity, construction will be at risk of becoming as solid and unmoving as the buildings we create.

The positive ripple effect on the rest of the country – in addition to the £7.1 billion Gross Value Added (GVA) contribution construction makes to the economy, will affect countless other businesses, from small to large, which serve the sector.

However it’s not all good news. There are increasing challenges in recruiting skilled employees and the public face of construction is still suffering from an image problem. The industry is incredibly diverse and significantly more professional and technical than is referred to anecdotally. Construction is not a career for those struggling academically or mostly consisting of the hard hat brigade. It needs to be viewed as a genuine career option for those with potential trade skills and an aspirational career in a rewarding and thriving sector. It also offers genuine equal opportunities for all backgrounds and abilities at all levels.

Most parents would be proud to say their child is studying accountancy or dentistry but in reality, young people with apprenticeships are among the most employable in the country, not to mention becoming equipped with valuable practical skills and a good salary.

Indeed, the Federation of Master Builders has recently reported that construction apprentices actually earn more per year than many of their university graduate counterparts, confirming construction as a highly rewarding career option.

Apprenticeships are not to be underestimated. They really do provide the lifeblood to this industry. At Cruden, our skills development through the Cruden Academy has allowed us to build up a sustainable pool of talent. We have a continuous programme of investing in our employees which includes our full modern apprenticeship programme, lifelong learning, training and distance support as well as further education support. This is reflected in the importance we attach to this through our Investors in People & Investors in Young People Accreditations and our dedicated Trades management who commit to mentoring Apprentices.

During my time at Cruden, I’ve seen numerous employees stay with us and climb up the career ladder very successfully. We directly recruit around fifteen new apprentices across a variety of trades and skills each year with additional placements supported through our supply chain as well as offering opportunities with consultants, and these direct apprentices will become part of the 90 strong team of apprentices that we train every year across the Group.

Today’s apprenticeships and those embarking in additional learning and training come from all genders and backgrounds and our business is stronger for it. It has helped us to achieve and support healthy order books, continued growth and develop more effective and innovative ways of working. In Cruden our view is that we should channel challenges as drivers for innovation from adversity.

I encourage every business within the construction sector to consider implementing a genuine apprenticeship programme and to reap the rewards this can bring to their company. Equally, there has never been a better time for the Government and the industry to come together with a unified voice to begin sensibly and apolitically addressing this outdated perception of working in this industry and amplify the message that the face of construction has changed and it’s time for people to adjust their views accordingly.

As a company leader, I’m very proud to see the effects of these opportunities on individuals as we continue to develop the leaders of tomorrow. By the time these young men and women are my age, I’m sure the construction landscape will be much transformed, and hopefully a highly sought-after career option for more women and young people. With the right talent, the world of construction could shine even brighter as the jewel in the crown of the Scottish economy. We certainly have the right foundations to build upon.

  • Allan Callaghan is managing director of Cruden Building & Renewals Limited

Blog: Please don’t stop the music!

Lynsey Reid outlines the “agent of change” principle in planning policy.

On 16 February 2018 researchers from the Universities of Edinburgh, Newcastle and Turku in Finland published the UK’s first live music venue census. The survey found that 29% of small music venues (defined as those with less than 350 seats), and 27% of all music venues, have experienced problems with noise complaints from neighbouring developments.

Currently noise-generating businesses can find that unofficial limits are effectively placed on the noise they can produce when planning permission is granted for noise-sensitive development, most commonly residential development, on neighbouring land. This is because, once planning permission is granted, occupiers of the new development can make noise nuisance complaints about the pre-existing development. “I was there first” isn’t a defence in a noise nuisance investigation.

Live music venues in particular are left feeling that the current system is adversely impacting their businesses, as they end up having to carry out expensive noise mitigation works to reduce their impact on the incoming development, change operations, or close entirely.

In Edinburgh, several venues including Electric Circus and Studio 24 closed after noise nuisance complaints from residents of new development. In Aberdeen, Gilcomston Steps and Downstairs closed after being served with noise abatement notices, and in Glasgow, there were concerns about the future of King Tut’s Wah Wah Hut following proposals for a nearby hotel development. The issue is not unique to Scotland, with examples across the UK.

As a result of these issues, owners of live music venues have campaigned for the introduction of the “agent of change” principle in planning policy.

The agent of change principle attempts to redress the balance by placing the burden on developers seeking planning permission to make sure that the potential impact on pre-existing businesses is suitably mitigated as a prerequisite or as a condition of a development.

Arguably this principle can already be found in planning policy. Scottish Planning Policy (SPP) requires decision-makers to treat the impact of new development on the character and amenity of town and local centres and high streets as a material consideration – with the aim of encouraging “a mix of developments which support their vibrancy, vitality and viability”. Planning Advice Note 1/2011 also advises decision-makers to treat as relevant both the likely level of noise exposure and any reasonable expected increase in noise levels when determining applications for noise-sensitive development next to noise sources.

That already sounds a lot like an agent of change principle. But as examples such as Electric Circus show, the current policies do not appear to be working. Once noise-sensitive development is in place, noise-generating businesses operate at the mercy of noise nuisance complaints.

The agent of change principle requires a broader approach than there is currently at the planning application stage, putting the onus on developers to put forward more sustainable and suitable noise mitigation measures to be built into proposed development at an early stage.

Planning policy cannot prevent noise nuisance complaints, and local authorities will be required to investigate these, but with stronger mitigation measures, it is hoped that the number of complaints will be reduced.

Campaigners therefore welcomed the Scottish Government announcement, also on 16 February 2018, that it plans to embed the agent of change principle expressly in national planning policy, by including it in the next National Planning Framework (NPF) and Scottish Planning Policy (SPP).

The drafting of the new NPF and SPP will be taken forward once the current Planning Bill is passed by the Scottish Parliament, and they are expected to be put in place during the course of 2020. In the meantime, the Chief Planner has written to local authorities to remind them of the current implicit policy support for the agent of change principle.

The Chief Planner’s letter and the Scottish Government’s announcement both focused on the agent of change principle in relation to live music venues, and the pressure placed on them by noise nuisance complaints.

It is not clear whether this focus will be reflected in NPF/SPP – making the principle effective only in relation to live music venues – or if the intention is for the agent of change principle to apply also to other noise-generating operations, such as industrial manufacturers. It would seem unfair to give protection to one type of operation (notwithstanding, as the Chief Planner put it, its “cultural and economic contribution to Scotland’s music industry”) without also recognising and protecting the economic contributions of Scotland’s manufacturing industry.  Indeed, there is a risk that by referring expressly to live music venues, the protections afforded by existing policy to other types of operation will be perceived as being reduced or weakened.

The Scottish Government’s announcement follows a similar announcement by the UK government in January 2018 that it will support a proposal for the agent of change principle to be embedded into the new NPPF which sets out policy for England & Wales.

  • Lynsey Reid is a solicitor at Burness Paull

Blog: Public interest led development

Professor David Adams

Scottish Land Commissioner Professor David Adams looks at public interest led development in Scotland.

If we want to provide more affordable housing, generate new employment, create better quality places for people in Scotland, we need to be braver, bolder and be prepared to accept more risk and uncertainty than now.

The state needs to act as the ‘prime mover’, to make development happen, where it would otherwise not do so, or ensure higher quality development, where mediocre development might otherwise occur.

Almost always, public interest-led development (PILD) as it is called – development designed to deliver specific public-policy objectives – involves partnership between the public sector and private sector.

It has a number of advantages over relying primarily on the market, as we mostly do now.

In most cases, it involves land acquisition and assembly by public authorities, often followed by putting in infrastructure – roads, utilities, and so on – so that the land can then be split up into different parcels to be sold on if appropriate.

The creative, visionary regeneration of the Dundee waterfront led by Dundee City Council is probably the best example of this approach in Scotland.

Direct control of land ownership puts the public sector in a much stronger position to ensure development is properly coordinated, well-integrated and well-designed – especially so for major projects and regeneration of large areas of vacant/derelict land – than where this is controlled simply through the planning system.

Dundee’s Waterfront is currently undergoing a £1 billion transformation

It also provides a mechanism for the public sector to capture any value uplift from urban development through buying land at a fair price that takes account of all the public investment needed for major new projects, and in due course, recouping at least that investment through land sales.

But it requires particular skills and expertise, such as development experience and market awareness, which are no longer always available within the public sector. By definition, it involves some form of risk sharing with the private sector, and robust risk management.

In the decades immediately after the Second World War, public interest-led development was the model used to build new towns and redevelop many obsolete or bomb-damaged town and city centres.

But it fell out of fashion and we now rely – almost entirely – on the market to deliver.

It has led to a situation where we are not revitalising or enlarging the physical fabric of Scotland’s towns and cities, well enough or fast enough.

As Scottish Government’s Council of Economic Advisers said 10 years ago, much of what has been built in Scotland over the last three or four decades, “is a missed opportunity and of mediocre or indifferent quality.”

By contrast, Sweden, Netherlands and Germany all provide recent, inspiring exemplars of what we could achieve in Scotland with a fresh approach.

PILD requires up-front public investment, which could be financed from the sale of bonds or from other potential investment sources. Scottish local authorities are – in principle – well placed to raise funds at competitive rates of interest.

Moreover, over time, profits from land sales could be used to finance new projects, making the process self-sustaining.

Rather than expecting the private sector to take on all the risk of major urban development, a shared approach in which the public sector plays an important leadership role – especially on major urban regeneration or development projects – is more likely to produce greater benefits for all.

As the two authors of the Land Lines discussion paper The Delivery of Public Interest Led Development in Scotland that’s published today by the Scottish Land Commission conclude, “…Successful public interest led development needs a commitment to doing things differently, a need to be radical and take some risks in order to achieve the goal of achieving places that people deserve.”

We are publishing this paper to open up debate and discussion to see how effective public interest led development can be achieved in Scotland and contribute to making more of Scotland’s land. We are continuing the discussion at our Public Interest Led Development conference to be held on 25 April 2018 in Glasgow.  Planners, developers and investors from both the private and public sector are encouraged to attend to explore how Scotland can effectively deliver PILD.

  • David Adams is a Land Commissioner with the Scottish Land Commission and holds the Ian Mactaggart chair of Property and Urban Studies at the University of Glasgow

This article was originally published on the Scottish Land Commission website.

Blog: ‘Smash and Grab’ adjudications – too good to be ‘true’?

Ross Cameron

Ross Cameron looks at whether a recent English case could curb “smash and grab” adjudications.

The construction industry has been working with statutory adjudications for over 20 years since they were introduced by the Housing Grants, Construction & Regeneration Act 1996 (“the 1996 Act”).

Even though adjudication in the construction sector has developed significantly over the last two decades, it is still principally about helping the wheels of industry to turn smoothly by ensuring cash flow from employer to contractor and from contractor to sub-contractor.

This is often embodied in what are known as “smash and grab” adjudications, where the contractor (or sub-contractor) usually relies on the other party’s failure to get its paperwork in order to “grab” money quickly via an adjudication. Until now there has been no possibility of the merits of the ‘grab’ being reviewed, at least not at an interim stage, but the recent case of Grove Developments Ltd v. S&T (UK) Ltd[2018] EWHC 123 (TCC) changes this and could pave the way for less ‘smash and grab’ adjudications.

Background

In Grove, the claimant (“Grove”) engaged the defendant (“S&T”) to design and build a hotel for £26,393,730.00. The contractual completion date was 10th October 2016, but completion was not achieved until 24th March 2017. On 31st March 2017, S&T sent Grove an interim application, claiming an increased overall figure of £39,707,085.00. The basis for this claim was set out in a detailed spreadsheet attached to S&T’s application.

On 13th April 2017, Grove sent a payment notice to S&T, disputing S&T’s calculation and providing its own assessment in an annotated version of S&T’s spreadsheet. On this basis, Grove issued a separate payment notice and interim certificate setting out its view that the net amount due to S&T was £1.4m. However, the payment notice was not issued in time pursuant to the time periods in the Contract.

On 18th April 2017, Grove emailed its pay less notice to S&T. Grove’s pay less notice (which was itself in time) referred back to its detailed calculation of £1.4m in the (purported) payment notice of 13th April 2017. As a result, S&T argued that Grove’s pay less notice was invalid.

An adjudication in December 2017 decided that the pay less notice was invalid because the calculation of Grove’s figure was set out in a separate document contrary to the contract, which stated that a pay less notice should “specify” both the sum due to the contractor and the basis on which that sum had been calculated. This meant that S&T was entitled to be paid £14m under its interim application– an expected result in a ‘smash and grab’ adjudication.

Grove brought proceedings seeking various declarations from the Court, including that its pay less notice was valid. However, Grove also asked the Court to determine whether, if the pay less notice was invalid, it could commence a separate adjudication seeking a decision as to the ‘true’ value of the interim application.

Valid ‘Pay Less Notice’

On the facts, the court held that Grove’s ‘Pay less Notice’ was valid – the detailed calculation sent to S&T five days earlier on 13th April 2017 along with the (purported) payment notice would have permitted the reasonable recipient to understand exactly how Grove’s valuation was calculated. Furthermore, the court found that there could be no objection in principle to a notice referring to a detailed calculation set out in another, clearly-identified, document.

‘True’ value adjudication

Despite ruling that the pay less notice was valid, the court went on to consider whether Grove would have a right to adjudicate in the absence of a valid pay less notice’. Mr Justice Coulson ruled that an employer would have the right to initiate a separate claim seeking a decision about the “true” value of the interim application. An employer whose payment notice or pay less notice was deficient or non-existent could pay the contractor the sum stated to be due in the contractor’s application and then seek, in an adjudication, to dispute that the sum paid was the “true” value of the works for which the contractor had claimed.

The court’s reasoning can be summarised as follows:

  • Under S.108 of the 1996 Act and paragraph 20 of the Scheme for Construction Contracts 1998, there was no limitation on the nature, scope and extent of the dispute which either side could refer to an adjudicator. Accordingly, an adjudicator would have the power and jurisdiction to determine the ‘true’ value.
  • The dispute which Grove would wish to raise in a further adjudication was a different dispute to that determined in the December 2017 adjudication which concerned the question of whether the payment notice or pay less notice was deficient or out of time, not detailed matters of the valuation. If so, then the sum stated in the contractor’s application would be due and payable, and there would be no need (or jurisdiction) for the adjudicator to consider whether that sum was correct. It followed that this could then be considered afresh in a second adjudication.
  • The words of the JCT Design and Build Contract (as was used by the parties) differentiated between “the sum due” and “the sum stated as due”. The former refers to the mechanism designed to calculate a contractor’s precise entitlement (i.e. the correct, or ‘true’ value). The latter is the amount a contractor has included in his application, and which will be payable in the absence of a valid payment notice and/or pay less notice. The two are not the same and preventing an employer from adjudicating would ignore this distinction.
  • It was not controversial that if a generic employer served a payment notice or pay less notice for a lower sum than what a contractor applied, the contractor could immediately refer a dispute about the ‘true’ value to adjudication. It was only fair that an employer had a similar right.
  • There was no contractual basis for treating interim and final applications/payments in different ways. Accordingly, whether what is in dispute is an interim payment or a final payment, the employer has the right in principle to refer to adjudication.

The end of “Smash and Grab”?

Before Grove, there was a line of cases which established that an employer who failed to serve the correct notices was not entitled to subsequently adjudicate the ‘true’ value of a claim. They had to wait until the next interim certificate or (more commonly) the final account (which could be months or years away in some cases) to reverse what it considered to be an overpayment.

This approach underpinned ‘smash and grab’ adjudications, where a contractor claims (and receives) the full amount of its application for payment on the basis the employer fails to serve the correct notices. The contractor then holds on to sums to which it may not be entitled until a later date.

A contractor has always had the right to immediately adjudicate if an employer serves a payment notice or pay less notice for a lower sum than what the contractor considers to be the true value- the decision in Grove ends this imbalance.

Grove could pave the way for a reduction in the number of ‘smash and grab’ adjudications, as they are unlikely to be economical for contractors if the employer can in turn quickly seek to ascertain the ‘true’ value.

That said, the ‘smash and grab’ approach might still be an effective ‘quick fix’ for cash strapped contractors and sub-contractors as an employer in a position like Grove will first have to pay the amount claimed in adjudication proceedings before embarking on its own ‘true value’ process.

As is always the case, disputes are best avoided if possible. Grove reaffirms the importance of ensuring that notices are properly drafted and served on time. It also serves as a reminder that both contractors and employers should always have compliance with the relevant statutory and contractual provisions as their focus to avoid a Grove-style predicament.

  • Ross Cameron is a solicitor at Anderson Strathern

Blog: Procuring a great career in construction

Manni Ferguson

Manni Ferguson from Kier Construction examines the growing diverse range of roles for women in business.

With International Women’s Day just two days away, there’s never been a better time to consider the growing diverse range of roles for women in business. People are surprised when I tell them I work for a large multinational construction company, and often they assume that I must work in administration. In fact, I head up procurement for Kier Construction in Scotland and north east England, managing everything from building and maintaining relationships with our supplier base to approving terms and conditions for every contract we place.

It’s a role which has opened up exciting opportunities for me in a sector which I believe is just getting started in terms of its innovative potential. That sector is construction.

I didn’t have typical career aspirations as a child – I loved maths at school and grew up wanting to become a maths teacher, people that know me now would find that hysterical. While this put me very much in the minority of my doctor and actress wannabe friends, I didn’t let that influence me, as geeky as maths sounded to them. I’m now lucky enough to work in an industry which offers excellent career opportunities as well as flexible working options.

I discovered while doing my BSc in Mathematics at the University of Glasgow, that while I love figures and particularly checking them – I’m a big fan of using my red pen! – I quickly realised that I simply didn’t have the patience required for teaching. When I graduated I was lucky enough to secure a summer placement in a local construction company’s buying team, and as they say, the rest is history.

It was a challenge entering a male dominated profession, but ultimately that was more about perception than reality. Personally, I found that if I worked hard, I got opportunities and promotions regardless of my gender. I moved companies a couple of times to widen my experience, and after a few years took a role with Kier where I’ve been ever since, 12 years later and I continue to love my job.

Over the years, things have really progressed in procurement and buying with the introduction of better systems and greater use of business information modelling (BIM) technology. As lead for procurement in Scotland and north east England, I spend my days reviewing contracts, overseeing teams, vetting suppliers and assessing the quality of items or workmanship that we’ve procured. I’ve found that I have a particular talent for understanding and reworking terms and conditions for mutual benefit between Kier and its suppliers, which means that I still get to brandish my red pen on occasion!

It’s a busy and varied role which allows me to be involved in both the nitty gritty of contract terms and conditions as well as the big picture of Kier’s overall supply chain. But what often surprises people is how flexible my employers are and how abundant the opportunities for advancement are across the industry.

During my time at Kier, I’ve been encouraged to push myself as far as I want to go.  Equally, it’s a very family friendly company and I was able to drop down to working three days a week when I came back from maternity leave, which I’ve since chosen to increase back up to working full time.

Unfortunately, the perception still exists that if you are a woman in construction, you’re either in a dirty job working on a site or in the office doing admin. Neither is the case for me! While it used to be unusual to see a woman on a construction site, with more diverse roles appearing due to advancing technology, women are much more the norm.

In my opinion, now is the perfect time to join construction, whether you are a man or a woman. There is no doubt that the industry is facing a shortage of skills, so it’s an open door and once you are in, you’re hooked! If you have transferrable experience and are good at problem solving, retaining information and multi-tasking, there is a good chance that someone in the sector will have a place for you.

Even though I never got to live my earlier dream of becoming a maths teacher, I feel I’ve found my place in an industry which appreciates my individual talents and quirks – including my passion for red pens and contract mark-ups. So, while construction isn’t traditionally the most popular career aspiration, perhaps it should be.

  • Manni Ferguson is procurement lead for Kier Construction in Scotland and north east England

To celebrate International Women’s Day on March 8, Scottish Construction Now is dedicating its entire newsletter to highlight the contribution of leading women from across the sector. Sign up to receive our free newsletter here http://eepurl.com/bkCTsT.