Possession of the site - Construction Contracts - page 27

overrideormodifywhatisintheprintedcontract.ThisisaclausepeculiartoJCTcontracts
that still catches out the unwary.
Part of the judgment in London Borough of Hounslow v Twickenham Garden Develop-
ments Ltd 5 has helped to give rise to the myth that a contractor can be given possession of
thesiteinparts.Thecourtreferredtosuchpossession,occupationanduse'asisnecessary'
to allow the contractor to carry out the contract. Because this was not something that the
court had to decide, the statement does not have binding force.
The idea that a contractor is entitled only to 'sufficient possession' and that, therefore,
the employer need give only that degree of possession that is necessary to enable the con-
tractortocarryoutworkismisconceived.Inanyevent,thecontractorisentitledtoplanthe
carrying out of the whole of the Works in any way it pleases.
Althoughitisnotbindingauthority,thecommentaryinoneoftheBuildingLawReports
sets out the position:
English standard forms of contract, such as the JCT Form, proceed apparently on the
basis that the obligation to give possession of the site is fundamental in the sense that
the contractor is to have exclusive possession of the site. It appears that this is the
reasonwhyspecificprovisionismadeintheJCTFormfortheemployertobeentitled
tobringothersonthesitetoworkconcurrentlywiththecontractorforotherwisetodo
so would be a breach of the contract.
This is an eminently sensible view. Although an earlier JCT form of contract was under
consideration, the view is equally valid in the context of SBC. In another case, under the
JCT63form,althoughtheemployerswerecontractuallyobligedtogivethecontractorpos-
session of the site, they could not do so. This was due to a man, a woman and their dog
occupying the north-east corner of the site by squatting in an old motor car with various
packing cases attached and the whole thing protected by a stockade. Although the precise
period was in dispute, it seems to have been about 19 days before the site was cleared and
the contractor could actually get possession of the whole site. The court held that the em-
ployers were obviously in breach of the obligation to give possession on the contractual
date. The contractor could enter onto the site, but it was unable to remove the occupants
and their rubbish and the breach was therefore the cause of significant disruption to the
contractor's programme.
In another case, it was held that the phrase 'possession of the site' meant possession of
the whole site. The employer, in giving possession in parts, was in breach of contract, and
the contractor was entitled to damages. 6