Law and the Built Environment - Softcover

Wood, Douglas; Chynoweth, Paul; Adshead, Julie; Mason, Jim

Softcover

ISBN 10: 1405197609 ISBN 13: 9781405197601

Publisher: Wiley-Blackwell, 2011

Synopsis

Law and the Built Environment is a core textbook for all students undertaking compulsory law modules on construction, real estate and property management programmes. This single text provides an accessible introduction to the many areas of law studied by aspiring built environment professionals. Written by a team of lecturers with many years' teaching experience in these areas, key principles of English law are placed in their relevant professional context and clearly explained in exactly the right level of detail for success in the modules studied. The book also focuses in greater depth on some specialist areas of built environment professional practice, including construction contracts, health and safety, rent review, dilapidations, and lease renewals.

It provides an essential resource for students studying for qualifications leading to professional membership of the Royal Institution of Chartered Surveyors (RICS) or the Chartered Institute of Building (CIOB). It caters primarily for students studying these subjects at bachelor's degree level, but will also be suitable for students on programmes at HNC and HND levels, as well as those undertaking professional examinations. It will also provide introductory reading for students undertaking master's level programmes, and particularly for the increasing numbers of graduates from other disciplines who are now studying on RICS-accredited master's degree conversion programmes.

About this title

About the Author

Douglas Wood, BA, LLB, LLM, Solicitor, is senior lecturer in the Staffordshire Law School at Staffordshire University. After working in legal practice and the commercial property sector he became a full time lecturer in 1975. He is a member of the Chartered Institute of Arbitrators and regularly gives lectures at continental universities on planning and housing law.

Paul Chynoweth, BSc, LLB, Solicitor, is senior lecturer in law in the School of the Built Environment, University of Salford. He is a solicitor, accredited commercial mediator and a member of the Chartered Institute of Arbitrators, and also holds a first class honours degree in building surveying. He is the author of The Party Wall Casebook and the editor of the International Journal of Law in the Built Environment.

Julie Adshead, LLB, LLM is senior lecturer in the Salford Law School at the University of Salford. She currently leads CIB Task Group TG69 on Green Buildings and the Law and is a convenor of the UK Environmental Law Association, Water Working Party. She is also the joint programme leader for the Construction Law and Practice master's programme at Salford.

Jim Mason, LLB, Solicitor, is senior lecturer in the Department of Construction and Property at the University of the West of England. He is a solicitor and an accredited commercial mediator. He is programme leader for the Quantity Surveying and Commercial Management programme and has recently established a Masters programme in Law for Construction Professionals in conjunction with Pinsent Masons solicitors.

It provides an essential resource for students studying for qualifications leading to professional membership of the Royal Institution of Chartered Surveyors (RICS) or the Chartered Institute of Building (CIOB). It caters primarily for students studying these subjects at bachelor’s degree level, but will also be suitable for students on programmes at HNC and HND levels, as well as those undertaking professional examinations. It will also provide introductory reading for students undertaking master’s level programmes, and particularly for the increasing numbers of graduates from other disciplines who are now studying on RICS-accredited master’s degree conversion programmes.

Also Available
Building Law Encyclopaedia
David Chappell, Michael Cowlin and Michael Dunn
978 1 4051 8724 4, 592 Pages

Construction Planning, Programming and Control
Brian Cooke and Peter Williams
Third edition, 978 1 4051 8380 2, 504 pages

Powell-Smith and Furmston's Building Contract Casebook
Michael Furmston
Fourth edition, 978 1 4051 1881 1, 576 pages

It provides an essential resource for students studying for qualifications leading to professional membership of the Royal Institution of Chartered Surveyors (RICS) or the Chartered Institute of Building (CIOB). It caters primarily for students studying these subjects at bachelor’s degree level, but will also be suitable for students on programmes at HNC and HND levels, as well as those undertaking professional examinations. It will also provide introductory reading for students undertaking master’s level programmes, and particularly for the increasing numbers of graduates from other disciplines who are now studying on RICS-accredited master’s degree conversion programmes.

Also Available
Building Law Encyclopaedia
David Chappell, Michael Cowlin and Michael Dunn
978 1 4051 8724 4, 592 Pages

Construction Planning, Programming and Control
Brian Cooke and Peter Williams
Third edition, 978 1 4051 8380 2, 504 pages

Powell-Smith and Furmston's Building Contract Casebook
Michael Furmston
Fourth edition, 978 1 4051 1881 1, 576 pages

Excerpt. © Reprinted by permission. All rights reserved.

Law and the Built Environment

By Douglas Wood Paul Chynoweth Julie Adshead Jim Mason

John Wiley & Sons

Copyright © 2011 Douglas Wood, Paul Chynoweth, Julie Adshead and Jim Mason
All right reserved.
ISBN: 978-1-4051-9760-1

Chapter One

The Administration of Law

1.1 The nature of law

Any system of law is basically a method of trying to enforce order and a reasonable standard of fair play. In any community, rules will develop to control the relationships between individual members. The law acts as a set of rules that protects the rights of individuals and organisations while at the same time imposing obligations on the community at large. There must be some method of enforcing these rules and ensuring that the system is flexible enough to respond to the need for change where and when it is necessary. This book is concerned primarily with rights and duties that affect those in the landed and building professions. These are areas of life that have long had to comply with legal formalities and requirements. As society has evolved and become more complex, the laws governing such activities have increased in number and become more sophisticated. The aspects of law to be considered in this book have application in England and Wales. Some of the principles apply in Scotland and Northern Ireland as well, but in areas such as the organisation of the court system and the methods of transferring land, there are significant differences. This first chapter looks at the English legal system and outlines just how the law is made and applied. This provides an essential foundation for the areas of law that are considered in later chapters.

1.2 Divisions of law

1.2.1 Civil and criminal law

A fundamental distinction is made in the English legal system between the criminal law and the civil law. Criminal Law is the body of law made by the state to preserve society and uphold law and order. Its object is to punish conduct of which the state disapproves and to act as a deterrent. The punishment may take the form of a fine, imprisonment or some other form of penalty. A person or organisation who infringes these laws commits a criminal offence for which the consequence can be prosecution by the state. Criminal cases are initiated by the state, normally via the police and the Crown Prosecution Service, although occasionally private citizens bring such cases. The state (the prosecution) is responsible for bringing a case against the person alleged to be responsible for committing the criminal act (the defendant or accused). As the United Kingdom is a monarchy, proceedings are brought in the name of the Crown. Consequently, in England and Wales a criminal case is described in the following manner:

Regina (latin for Queen) versus the person or organisation alleged to have carried out the criminal offence (for example, Regina v David Cameron). If the monarch is a king, the case will be described as Rex (latin for King) versus the person alleged to have committed the criminal offence (for example, Rex v Wayne Rooney). In order to shorten the description of the case it may appear as R v David Cameron or R v Wayne Rooney, as appropriate, when a record of the case is made.

Where the state is a major participant in the legal process, as in criminal cases, or the government is at the centre of such matters, the appropriate law is known as Public Law. Those who work in the professions relating to construction and the management of land and buildings may well encounter the operation of the criminal law in the course of their work. For example, a property developer who disobeys the rules relating to obtaining planning permission for a new building, or who contravenes regulations relating to building activities or environmental protection, can commit a criminal offence. Similarly, a builder who allows an unsafe system of work to continue or disregards the law relating to health and safety may be the subject of a criminal prosecution. Other aspects of public law are frequently encountered by those involved in matters relating to land and buildings and these are dealt with in Chapter 6.

The Civil Law governs rights and obligations between individuals. Individuals may include a business, trade union, company or other form of organisation. Private individuals and organisations initiate such cases because they have a dispute with another person or organisation. The civil law attempts to resolve disputes and to give a remedy to the person or organisation that has been wronged (the injured party). Money is the essence of civil cases. Such cases are initiated with the intention of compensating the injured party who has suffered some form of financial or physical loss because of the actions of the other person. The civil law does not insist that the case be brought and the person bringing it may discontinue the process at any time. In a civil action the claimant brings the action against the defendant. For example: Cameron v Rooney would describe a civil case brought by Mr Cameron against Mr Rooney while if British Steel Corporation brought a case against Cleveland Bridge & Engineering Co Ltd, it would be described as British Steel Corporation v Cleveland Bridge & Engineering Co Ltd. Because this area of law is concerned with relationships between citizens and organisations and disputes personal to them it is known as Private Law. This is because, in the main, such disputes only affect the individuals involved in the proceedings. As a general rule, any area of law that does not come within the scope of the criminal law is categorised as being part of the civil law. Most civil law relates to the law of contract and the law of tort. Many different subject areas fall within the civil law. Property law, company law, commercial law and employment law provide some examples of areas of civil law.

Sometimes the same events give rise to both criminal and civil proceedings. A prosecution in a criminal court may well be brought against the driver of a vehicle under the Road Traffic Acts while the compensation aspects will be determined in a separate action brought by the claimant in a civil court. A similar situation could arise where an employer has been negligent in looking after the safety of an employee and as a result there has been injury. The employee may wish to bring a claim for compensation (damages) against the employer, while out of the same set of facts the employer may be prosecuted for breaches of or non-compliance with the Health and Safety at Work etc. Act 1974 (see Chapter 6, paragraph 6.10). Where this situation arises, the two sets of proceedings are kept separate and the matters are dealt with in different courts. There are numerous other situations where this dual liability arises. Whether a case is a criminal or civil matter, an appeal may be made to a higher court against the decision of the original court. In such circumstances the person bringing the appeal is known as the appellant and the person against whom the appeal is brought is known as the respondent. It is common for legal systems to govern particular procedures which have to be carried out within a legal framework even though there isno dispute or any matterwhich is contentious. The transfer of a house, making of a will or drafting of a contract are all good examples. These non-contentious matters are governed by rules developed by the civil law, although there is no conflict between the parties.

1.3 Evidence in civil and criminal cases

Whether a dispute is a civil or a criminal matter, the action will not succeed unless there is sufficient evidence to support the case. Generally it is for the prosecution or the claimant, as appropriate, to substantiate the case and not for the defendant to disprove it. This obligation is known as the burden of proof. When a case is heard in a court of law, the judge must determine the correct facts of the case and then, if necessary, apply the law to those facts. The legal principles can be straightforward or complex. Often, it can be more difficult to ascertain what the correct facts are than to apply the relevant law. In a criminal case the standard of proof which is required is that the prosecution must put forward sufficient evidence to show that the accused committed the crime beyond all reasonable doubt. In a civil action the claimant must prove the facts relied upon and is required to prove the issues on the balance of probabilities. This means that it is likely, after reviewing the evidence, that the defendant did commit the act complained of. The outcome tends to reflect which party's evidence the judge believes to be true. The vast majority of civil actions are settled between the parties at some time before the judges final decision. In a civil case there are a number of methods by which the facts may be proved. The claimant has to put forward sufficient evidence for all the relevant facts necessary for the case unless the other party has accepted the appropriate evidence. An established method of pursuing or defending a case is through the use of witnesses giving oral evidence at first hand on oath. This is in addition to any documentary evidence which may be available, or real evidence such as a mechanical device or a photograph of a building site where an accident has taken place. In civil cases, evidence is given by a sworn statement, made on oath, known as an affidavit. A witness must not give an opinion on the facts at issue unless he is an expert witness (see paragraph 1.18.6). Hearsay evidence is evidence which is not perceived by the witness but stated by some other person. Following the Civil Evidence Act 1995 hearsay evidence is generally admissible in civil proceedings. However, there are restrictions upon allowing hearsay evidence in criminal cases.

1.4 The common law

Most legal systems in Europe are based upon Roman law but England and Wales are subject to the so-called Common Law. This expression is used to describe English law and the other legal systems, such as those of Australia or the United States of America, which adopted the type of law to be found in England. The expression Common Law can also be used to describe the law made by judges in courts of law as opposed to that made by Act of Parliament. A third interpretation is that it means the body of law which became common or uniform to the whole of England and Wales after 1066. Up to that date, the laws of England and Wales varied from area to area as there was no unified legal system. Each court operated in isolation. There were no centralised institutions exercising either administrative or judicial control over the legal system. This changed with the Norman Conquest in 1066 when William the Conqueror (William I) proclaimed himself King of England, replacing the Saxon kings. The object of the Normans was to establish a national system of law, which would apply to all persons alike, wherever they were situated geographically and whatever their status in society. This law became based on the law which they brought with them from France and on those English customs which were found to be widespread after the conquest.

One consequence of the Norman Conquest was the introduction of the Kings Council or Curia Regis. This was the central government of the Kingdom which exercised administrative (executive), law-making (legislative) and judge-like (judicial) functions without distinction. In the period immediately after the conquest, the common law developed on an ad hoc basis with each problem being settled as it arose. The Normans developed a strong central government and gradually the old local customs began to disappear, with their place being taken by the Kings Council. From this court, special courts were instituted to deal with particular types of cases in which the Kings justice was sought. As new courts developed, the Curia Regis diminished in importance. Three major common law courts administered the new common law:

1. The Court of Kings Bench.

2. The Court of Exchequer.

3. The Court of Common Pleas.

These courts were able to compel the attendance of parties involved in the disputes, and also of witnesses. The process began whereby judges, appointed by the King, acted as Royal Commissioners throughout the country. These judges dealt with civil and criminal matters wherever they arose. This process continued during the reign of Henry II (115–489) and eventually it led to the development of the assize system, whereby judges toured the country on regular circuits in an attempt to deal with civil and criminal disputes in the regions. This process existed until 1971 and in a modified form still exists today. From the reign of Henry II, civil actions in the common law courts had to be started by writ. This royal command had to be obtained from the Kings Chancellor. For every civil case there had to be a separate writ, and the claimant had to select the particular writ which fitted the facts of the case. These original writs were simply documents containing an order from the King addressed to the defendant, the County Sheriff or the Lord of the Manor, requiring the defendants attendance at court to answer allegations against him. The different types of writ were said to give rise to different forms of action. This meant that the method of trial and the procedural rules which were applicable depended upon the nature of the writ used to start the case. Much of the civil law was built up through defining the circumstances in which the various writs could be brought.

1.5 Equity

By the end of the reign of Edward I (1272–1307) the shortcomings of the common law were becoming apparent. The writ system had become very formalised. Writs were not available to cover every set of circumstances and the rule was that, unless there was an appropriate writ, there was no remedy. No action could succeed unless the correct court was chosen. Technicalities dominated common law procedures. These had become very complex and an action might fail because of a slight error in the preparation of the documents required to start off a case. Another problem was the lack of appropriate remedies to fit every set of circumstances. A successful claimant in the common law courts had only the remedy of damages. Claimants who were dissatisfied with the common law, if they needed to go to law, began to petition the King in an attempt to redress their grievances. By the end of the fourteenth century there were so many petitions that the King referred them to the Lord Chancellor. From this process, the courts of equity emerged, presided over by the Lord Chancellor. The Chancellor granted remedies which he thought were just and equitable depending on the circumstances of the case. This process became so popular that eventually other judges needed to be appointed. These Chancellors Courts, or Courts of Chancery as they became known, provided an alternative set of courts to those of the common law.

Equity offered new remedies as alternatives to a claim for damages. Initially, the Chancellor was able to grant any remedy which was thought appropriate to fit the circumstances of the case. Eventually, the Courts of Equity became as formalised as the common law, with the availability only of certain specific remedies with guidance from previous cases. Equity offered new remedies such as specific performance (a court order to compel the performance of the contract), injunction (an order requiring a person to stop doing something they should not be doing in the first place or requiring a particular action) and rescission (the right to withdraw from a contract) (see Chapter 2, paragraph 2.12). The basis upon which equitable remedies operate has always been different from the availability of damages as a remedy in the common law courts. Equity has never been a complete system of law. Instead, it has acted as a gloss on the common law by filling in gaps. Equitable remedies are discretionary and are not automatically granted even if the claimant has proved the case in issue. At common law, once the case is proved the claimant is automatically entitled to damages irrespective of any other aspects of the case. If an equitable remedy is sought, the so-called Maxims of Equity are applicable. These are a set of rules which regulate the basis upon which remedies are granted. The conduct of the plaintiff, in particular, is very important where an equitable remedy is claimed.

(Continues...)

Excerpted from Law and the Built Environmentby Douglas Wood Paul Chynoweth Julie Adshead Jim Mason Copyright © 2011 by Douglas Wood, Paul Chynoweth, Julie Adshead and Jim Mason. Excerpted by permission of John Wiley & Sons. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

Edition details

• Publisher: Wiley-Blackwell
• Publication date: 2011
• Language: English
• ISBN 10: 1405197609
• ISBN 13: 9781405197601
• Binding: Paperback
• Edition number: 1
• Number of pages: 348