Neutral citation: Blackpool Borough Council v Volkerfitzpatrick Ltd [2020] EWHC 1523 (TCC)

NEC contract topics: inconsistency between employer and contractor Works Information, hierarchy of Works Information

Form of contract: NEC3 Engineering and Construction Contract

Main areas of law: meaning and application of design life, interaction between design obligations and maintenance requirements, causation and quantum in construction claims.

 

Blackpool Borough Council engaged Volkerfitzpatrick to design and construct a new tram depot at Starr Gate in Blackpool. The depot formed part of a broader modernisation of the tramway system. The contract used was a modified NEC3 design and build form. Completion was reached in 2011 and the depot came into operation in 2012.

In January 2015, a roof section detached during high winds. Subsequent inspections revealed corrosion in several components, including galvanised cold formed steel, wall cladding panels, soffit panels, decorative wave cladding and tram doors. The Council claimed these components did not meet their intended design life and were not suitable for the harsh coastal environment.

The claimant relied on its Works Information, including a Functional Procurement Specification, which required a 50-year design life for the “building structure.” The contractor's design log, submitted during tender, stated a 25-year design life for the “external shell” and a 50-year life for the “structural frame.” A clause gave priority to the Council’s Works Information in the event of inconsistency.

The Council claimed a failure to achieve the 50-year design life for the listed components, asserting that each formed part of the “building structure.” The contractor denied this, stating that these elements were not load-bearing and therefore fell outside the “building structure.” It maintained that the default 20- or 25-year design life applied.

 

The court was required to determine the applicable design life for each disputed element. Central to this was the question of whether the components formed part of the “building structure.” The contract lacked definitions for “building structure” and “design life,” requiring the court to construe these terms using established legal and technical principles.

The court also considered whether the obligations to meet design life, suitability for a coastal location, and durability were strict or subject to a reasonable skill and care standard. The parties disagreed as to whether deterioration in components was due to defective design or construction, or instead due to the claimant's alleged failure to maintain the depot. The defendant further argued that any corrosion was cosmetic or localised and did not affect the structural function of the components.

 

The court found that none of the components in question formed part of the “building structure” for which a 50-year design life applied. Judge Stephen Davies held that terms such as “building structure” were not sufficiently defined and that, in the absence of inconsistency, the contractor’s Works Information prevailed. The roof purlins, cladding rails and soffit panels formed part of the “external shell” subject to a 25-year design life. The tram doors, side panels and supports were subject to the default 20-year requirement.

The judge stated:

“In the context of a modern steel framed building such as the tram depot there can be no dispute that the primary steel structural frame is part of the building structure. However, in my view it is neither plain nor obvious whether or not the secondary steel structures, such as the purlins and cladding rails, are also part of the building structure.”

On the question of meaning, the court noted:

 

“It cannot realistically be thought that a structure should be intended to be maintenance free for the whole of its design life, whereas it can reasonably be assumed that it ought not to need major repairs over that period.”

 

The court considered that maintenance obligations under the contract required regular attention by the employer. Minor repairs or expected degradation did not equate to a failure to meet design life unless maintenance requirements became “non-standard” or “unusually onerous.” Although the claimant alleged widespread corrosion, the court concluded that for many items the corrosion was within acceptable limits, was not proven to reduce the expected life of the component, or resulted from insufficient maintenance. In contrast, where proven failure had occurred, damages were awarded. The court awarded £1,110,782.10 to the claimant, significantly less than the £6 million claimed. This included partial awards for roof components, wall panels, soffits, wave form cladding, tram doors and general defects, along with a 10.5% uplift for project costs.

 

This case reinforces the need for precision when drafting Works Information. Where performance obligations such as design life are imposed, those obligations must be supported by clearly defined terms. The outcome of the case turned on whether the claimant’s documents provided a sufficiently detailed specification of the 50-year design life and whether such requirements overrode or conflicted with the contractor’s information. The failure to define the term “building structure” meant that the Functional Procurement Specification was not determinative. The decision confirms that, in the absence of inconsistency, a priority clause does not override the requirement to interpret the contract as a whole.

The case also affirms the importance of distinguishing between design obligations and maintenance responsibilities. The court held that a component’s design life does not mean it must be maintenance-free but should not require major repair within that period. This standard is consistent with industry practice and recognises that maintenance is integral to achieving design life.

For employers, the decision highlights the risks of relying on broad or generalised terminology without cross-referencing specifications or drawings. Ambiguity in employer requirements can result in the contractor’s assumptions prevailing. It also shows that even in the presence of damage or corrosion, causation and quantum must be established through clear and reliable evidence. Parties to NEC3 design and build contracts should give careful attention to the language used in Works Information. Obligations concerning design life, durability and suitability should be precisely worded. Broad terms such as “building structure” should be defined or clarified by reference to technical schedules and design drawings.

Employers should align their specifications with the contractor’s design at tender stage to avoid later disputes. Inclusion of a priority clause is not a substitute for clarity. Maintenance regimes must also be realistic and evidence-based. Courts will examine whether deterioration results from failure in design or a failure to maintain. The threshold for breach lies in whether the employer faces more than standard or reasonably expected maintenance.