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Unit 8 Contractual and Legal Responsibilities within a Construction Environment
 



Introduction

Section 1. Contract Law

Section 2. Law of Tort

Section 3. Legal Requirements on Site


 
 

 

Information and Guidance is available on how you should study

 

Study Guide
 





Assignment for Unit 8



Before Sunmitting your assignment you MUST read 
 

Instructions for

Submitting Assignments



 

Additional Learning Resourses

Constructionsite

 


 






 
Additional Information

You should relate your responses to any of the tasks set in this unit to the documents listed below; these will provide information about the type and size of the project.  
























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Section 2









































































































































































































































































































































































































































 
Section 3

























































































































































































































































































































































































































































 
 
  
Unit aim: This unit is designed for Construction Site Managers, to give them knowledge of contractual and legal responsibilities.
 


This unit has an Introduction and is divided into 3 study sections.

Introduction

8.1 Contract Law

8.1.1 Basics of a Contract
8.1.2 Construction Industry Standard Forms of Contract
8.1.3 Specific Clauses


8.2 Law of Tort

8.2.1 Torts
8.2.2 Negligence
8.2.3 Nuisance


8.3 Legal Requirements on Site

8.3.1 Planning and Building Regulations
8.3.2 Conservation and Archaeology
8.3.3 Insurance
8.3.4 Other Legal Requirements


Unit Recommended Reading

Ashworth, A (2012) Contractual Procedures in the Construction Industry 6th edn.; Harlow: Pearson Education.

Owen, S, (1998), Law for the Construction Industry, Person Longman, Harlow, Chapter 7


Books can be ordered from most bookshops or online from Amazon.


Studying
 
Before starting you should read the ‘Study Guide’ accessible from the link on the left.
 


Introduction

One possible source of problems with any business is failure to comply with legal requirements.  It is essential that the site manager understands the obligations laid down by law and that these are conformed to.

Carrying out any building work involves numerous areas of law such as Contract, Tort, Health and Safety, Employment, Building and Planning law as well as the requirement to ensure that work conforms to environmental and conservation requirements.

This unit will provide an introduction to some of these areas, the other areas will be dealt with in other units of this course.  We will be concentrating on the main aspects as they affect the work on site and every effort should be made to relate the content to work that is being carried out in order to see how it relates in practice.  
 
                  

Please Note

All information contained in this Study Unit was considered correct at the time of writing but Students must not rely on information contained in the Study Unit and/or references for any purposes other than use within this CIOB qualification aim as legislation and working practices are constantly being revised and updated. Students are advised therefore to continually up-date themselves as to current legislation and construction practice and must not to rely on information contained within the Study Unit and/or references for practical applications in the workplace. Where legislation or construction practice has been superseded to that contained in the Study Unit Students should note this within their responses to the tasks.
 


Section 1. Contract Law

Learning outcome: On completion the learner will: Know how to comply with the relevant contract conditions.


Contents
8.1.1 Basics of a Contract
8.1.2 Construction Industry Standard Forms of Contract
8.1.3 Specific Clauses
 

 
8.1.1 A Contract

A contract is a promise which is enforceable by law. It is where one party promises to do something in return for the other party doing something else, thus if I promise to build you an extension and you promise to pay me £10,000 for doing it we have in effect a contract. A number of requirements exist which must be specific for a contract to be enforceable (These are shown in the PowerPoint Presentation). One essential for a contract is a promise and it is important that we understand a promise, as not all promises give rise to a contract. If we agree to meet for a night out we have an obligation but not a legal duty. If I agree to sell you my car for an agreed sum we have a legal obligation.

A legal duty arising from a promise can be either bilateral or unilateral. A bilateral contract gives rise to obligations on both sides. So if I sell you my car I have an obligation to transfer title to you, whilst you have an obligation to pay the agreed sum. A unilateral contract, places an obligation on just one side. Thus if I promise to sponsor you to run a marathon there is a legal duty on me to pay the money if you run the race, though there is no legal duty for you to run the race.

 
Forms of Contract

A contract does not have to be in writing, it can be verbal, although it is always better to have it in writing as that will ensure that everyone knows exactly what is involved and is proof that a contract has been agreed, something that is essential for a construction project. No specific form of contract is required although there are some basic requirements for a contract to come into force although the construction industry does use a number of specific forms which we will look at later. Let us start by looking at the basics relating to contracts.
 

Reasons for contracts
 
To identify the parties involved in the project and to state the basic details
To determine the rights and responsibilities of the parties on issues that could cause problems or additional expense, i.e. variations, extensions of time.
 

 
Requirements of a Contract

A contract is a legally binding agreement between two or more parties, by which rights are acquired by one side in return for the action of the other.
For a contract to exist and be enforceable the following must apply (the elements of a contract):
  • Capacity - The parties to a contract must have the capacity to enter into a contract. This means they must not be minors or insane or they must have the authority to act for their employer if they are signing on behalf of a company.
  • Legal - The purpose of the contract must be legal for it to be enforceable by law.
  • Intention - All parties to the contract must have intended to enter into a binding agreement.
  • Consideration - All contracts except for those made under seal, must be supported by consideration. This is generally the payment of money, provision of goods and the performance of work. The following applies:
    • Consideration must not relate to the past
    • Each party must benefit.
    • The consideration must be worth something, the law is not concerned as the what it is worth or if there is a good bargain.
 
Offer and Acceptance

The basis of any contract is Agreement; this is composed of two parts:
 
  1. The Offer.  This should not be confused with an invitation to tender or an invitation to treat. The offer is certain and both parties must be aware of exactly what is offered.
  2. The Acceptance. This must be unconditional and must correspond precisely with the terms of the offer.
 
Form of Contract

This may be a formal document, signed, sealed and delivered. The only contract which must be formal is that for the sale of land. Other contracts can be in writing signed by the two parties or a verbal agreement.
 

Disclosure of Information
It is not always necessary to disclose information even through that information may influence the other party. This is summed up by the maxim caveat emptor 'let the buyer beware'. This would not apply, however, if the facts are known by one party while the other has no means of obtaining these facts, the contract is then said to be 'of the utmost good faith'.
 

Privity of Contract

Only the parties who are party to a contract can be affected by it. A contract cannot either impose obligations or confer rights on others who are not privy to it.
 

Void & Unenforceable Contracts

A contract will be void or unenforceable under the following circumstances:
 
  • Duress and undue influence is exerted
  • Mistakes – if a mistake has been made with regard to what the parties believe they are agreeing to the contract is void
  • Misrepresentation – If one party has misrepresented something to the other party the injured party has a number of remedies:
    • Continue
    • Repudiate it (Reject)
    • Bring an action for rescission and restitution
  • Action for damages – if fraudulent
 
 
Express and Implied Terms

A contract is likely to have a number of terms, these are either Express or implied.
 
Express Terms - These are a clear stipulation in the contract which the parties intend should be binding upon them.  These are divided into two categories:
  1. Conditions - These are an essential part of the contract, the remedy for breach of these is repudiation or rescission of the contract which can give way for damages.
  2. Warranties - These are minor terms for which damages only is the remedy.
 
Implied Terms - Although not expressly stated by the parties these are deemed to be part of the contract by law.  Terms may be implied by custom, statute or the courts.
  • Custom - this is the established practice or usage by a trade, locality or type of transaction. This will apply unless the contract expressly excludes it.
  • Statute - Parliament may introduce laws to protect various parties to a contract, i.e. The Sale of Goods Act 1979 or Unfair Contract Terms Act 1977.
  • The Courts - The courts can imply a term into a contract if it was the presumed intention of the parties that there should have been a particular term but they omitted to state it.
 
 
Determination

A contract may be determined (terminated) in the following cases:
  • Breach of Contract
  • Frustration
  • Agreement
 
If we have a contract we have a duty to fulfil the conditions of that contract, if we fail to do that the other party may have a remedy for breach of that duty, this remedy may be:
  • specific performance where the court orders that the contract is performed as specified
  • injunctions – the court prohibits the breaking of the contract or
  • award of damages which allows the person who suffers loss to claim financial compensation for the loss.
 
Limitations of Action

The Limitations Act 1980 limit the time for action for breach of contract to:
  • 6 years for normal contract
  • 12 years if under seal
 
Returning to our extension, if I promise to build you an extension we both need to be certain of exactly what the specification that extension will be, ie will it be a single storey consisting of a single room or will it be two stories consisting of a bathroom with gold plated taps and central heating. The main factors and the relevance to the construction industry can be obtained by watching the Multi-media Contracts below.
 
 


Task 8.1.1 Principles of a Contract

Describe the principles of the formation of a contract and the remedies open to either party if the contract is not complied with.

Word Guide:  300 – 400
 

   
 
8.1.2 Construction Industry Standard Forms of Contract

For Construction work a Standard form of contract tends to be used is used, this has a number of advantages.
 

Standard forms of Contract – Advantages
  • It saves time and money to use a contract which is available rather than prepare one for each job
  • The contract is fair to all parties
  • People become familiar with the document.
 
Types of Standard Contact Forms

There are a number of types of contract; the most widely used is the Joints Contract Tribunal (JCT).
 

JCT

JCT Contracts are the leading standard forms of building contract that cover the spectrum of construction project contract needs. The JCT Contracts consists of a number of contracts that make up the main contracts and sub-contracts, together with other documents that can be used with them.

The latest version published in 2011 reflects the new legislation applicable to: 
  • A revised Insolvency definition in the Termination section
  • The revised Terrorism Cover provisions that were included in JCT's December 2009 Update
  • The provision for appointment of the principal contractor under CDM Regulations has been extended to cover that function under the Site Waste Management Plans Regulations 2008
  • Statutory reference to the Bribery Act 2010
  • Entries in respect of PI insurance relating to asbestos and fungal mould have been removed
  • Revised retention provisions in the sub-contracts
 
The contract lays down the procedures relevant to given situations and presents a remedy in the event of an occurrence happening whereby all parties know exactly the results of any actions.
 

Types of JCT Contract

Examples of the types of JCT are:
  • Standard Building Contract (SBC)
  • with Quantities
  • with Approximate Quantities
  • without Quantities
  • Intermediate Building Contract (IBC)
  • With Contractors Design
  • Minor Works Contract (MW)
  • With Contractors Design
  • Design & Build Contract (DB)
  • Major Project Construction Contract (MP)
 
These will be used according to the type of work being carried out and the way it is being carried out, i.e. on a design and build project the Design & Build Contract will be used; for small works the Minor Works Contract will be selected.
 

Contract Documents

Contract documents should include the following information:
  • The Work
  • Contractual Conditions
  • Cost of the finished work
  • The Programme
 
Additional Documents
  • Form of Contract, including articles of agreement and appendix.
  • Contract drawings
  • Bill of Quantities, specification or measured schedules. (Only one for Building, on civil engineering projects BoQ and Spec used)
 
Other Forms of Contract

Apart from the JCT a number of other standard forms of contract are available and include:
  • NEC – New Engineering Contract
  • ICE – Institution of Civil Engineers
  • FIDIC - Fédération Internationale Des Ingénieurs-Conseils, French for the International Federation of Consulting Engineers. Used in the consulting engineering industry for its work in the Construction Industry worldwide.
 
For an overview of the subject you should watch "Law & Contract" in the column on the left
 
 


Task 8.1.2 Types of Construction Contracts

Identify different types of contract used in the construction industry and the type of work where each may be used.

Word Guide:  300 – 400
 

8.1.3 Specific Clauses

A standard form of contract will have specific clauses which sets out the way that certain aspects will be dealt with, some of these are listed below.
 

Architects Instructions and Variations

It is important that provision is made for alterations to a building once construction is started without having to produce a new contract. The issue of architects Instructions (AI) and Variation Orders (VO) allows this to happen. They may be made on a variety of points relating to the work but are restricted to the matters specifically mentioned in the contract. They include the following:
  • Compliance with statutory requirements
  • Discrepancies in documents
  • Levelling and setting out the work
  • Variations
  • Making good any faults
  • Removal of work or materials not in accordance with the contract
  • Expenditure of provisional sums
  • Subcontractors work

The AI must be given, or subsequently confirmed in writing and becomes valid on the day of issue. Although it is not essential most contractors prefer to receive a special form headed 'Architects Instruction'.

If the correct procedure is not followed the contractor may not be paid for any additional work.
Variations are orders issued during the course of the work to alter the original work. They occur due to one of the following reasons:
  • Alterations are needed due to statutory requirements
  • Due to the client or architect changes their mind
  • Errors or omissions have occurred in the BofQ
 
Variations can only be issued within the terms of the contract.
 

Payment for Work

The way that a contractor is paid for work will differ according to the type of contract being used. We are dealing with the Private with Quantities.
 
Payment falls into one of two categories:
  1. Payments during the construction period
  2. Payments after completion.
 
The way that payment is made is with either an interim certificate for payments as work is carried out, or on a final certificate which is issued on completion of the building.
 

Interim Payments

These are usually paid on a monthly basis according to the value of the work completed. The interim certificate is a value of the work completed and is issued by the architect on the advice of the QS who will have measured and valued the work completed during that period. The sum will include all work carried out and also materials delivered to site but not yet fixed into position, providing they are prematurely brought on site.

The contractor then issues the certificate to the client who pays the contractor.
 

Completion

This falls into three stages:
 
1.    Practical Completion

This is the time when the building is completed to an acceptable standard to be used by the client. It establishes the point at which: 
  • The client can make use of the building
  • The contractor ceases to be responsible for its insurance
  • The defects liability period commences
  • The contractor can remove his resources from site
  • Half of the retention money is paid to the contractor
 
2.         Defects Liability Period

During this period the contractor is required to make good any defects or faults which appear in the building. The period is normally 6 months.
 

3.         Completion of the Contract
This is signified by the issue of a final certificate. The final payment to the contractor is calculated allowing for interim payments, variations, fluctuation in materials or labour costs.

In addition adjustment can be made in the amount paid if the contractor failed to complete the project in the contract time. These 'Liquidated damages' can be stated in the appendix of the contract at a specified rate per day/week.
 

Delays

Delays frequently occur which result in the contract falling behind schedule. This can mean that the contract is not completed by the contracted date.

The contractor can claim for an extension of time under certain circumstance. These include the actions of the architect or client such as:
  • Variations
  • Architects instructions which delay work
  • Late issue of drawings
  • Delay by clients directly employed staff affecting work
  • Opening up of completed work later found to be correct
  • Actions outside the control of the parties such as:
  • force majeure ( eventualities over which the contractor has no control i.e. strikes)
  • exceptional inclement weather
  • Fire, flood, storm
  • Civil disturbance
The contractor must give the architect written notice of any delays and the involvement of any nominated subcontractors. The effect of the delay must be stated so that the completion date can be revised. The architect will grant the amount of delay according to the circumstances.
 

Variations

The majority of forms of contract allow for variations should they arise at any stage of the contract. The advantage of the variation is that without it a new contract or an amendment would need to be made for each variation.  The disadvantage (to the contractor) is that it allows the architect or designer to delay making decisions until the last moment.

A variation from the contract occurs where the actual work to be carried out, or where the circumstance in which the work carries out, changes. A variation to the work occurs with:
  • The addition, omission or substitution of any work.
  • The alteration of the kind or standard or materials or goods
  • The removal of work, material or goods which were previously in accordance with the contract. 
 
A variation in circumstance occurs where:
  • Access and use of the site changes
  • Limitations of working space
  • Limitation of working hours
  • Changes made to the sequence of the work.
 
Procedure:
  • All variations to a contracts work  (BOQ, drawings or specification) must be recorded in writing
  • Head office must be informed of any verbal instructions
  • A Variation Order must be provided by the architect
 
A variation applies when changes are to be applied under the following circumstance:
  • Alteration or modification of the design, quality or quantity of the works
  • Access to the work with regard to space, location or time
  • The sequence in which the work is to be carried out
 

Variations are subject to the contractor’s right of reasonable objection.

A variation must be provided by the architect in writing. The architect may sanction in writing any variation made by the contractor.  Contractors should not vary the works without the express permission of the architect.


 


Task 8.1.3. Variations

Discuss how and why Variation Orders and Architects Instructions can occur on site and evaluate the contractual procedure for processing these documents.

Word Guide:  300 – 400
 
 
Breach of Contract

A breach of contract occurs when there is a failure to carry out the conditions of the contract. In the event of a serious breach the other party may act as if the contract were terminated. Examples of this may be due to:
  • The contractor stopping work and leaving the site
  • The contractor fails to complete the work
  • The contractor fails to rectify defective work
  • The employer fails to pay the sum due on the dates stated in the contract.
 


Task 8.1.4 Documentation and Records

State the main contractual responsibilities of the parties to the contract and describe the documentation and records that should be kept in order to ensure your company’s contractual position is protected at all times.

Word Guide:  300 – 400
 
 
 
 


Section 2. Law of Tort 

Learning outcome: On completion the learner will: Know how to describe the nature of a tort and the remedies available.


 Contents

8.2.1 Torts
8.2.2 Negligence 
8.2.3 Nuisance
 

8.2.1 Torts

A "tort" is a civil wrong. Such wrongs include trespass, negligence, nuisance and defamation (libel and slander). The law of torts represents the means whereby individuals may protect their private interests and obtain compensation from those who violate them.

 
The Distinction between Crime and Tort
  • Serious wrongs are called crimes and are punished by the state.
  • Lesser wrongs are called torts and are not punished by the state but the injured party must sue in order to be paid damages by the offender.

Scope of Torts
  • Trespass to the person - threatening to punch me if I don't give you a Merit
  • Trespass to goods - not returning the book I lent you after I demanded its return
  • Trespass to Land - entering my property or depositing rubbish on it
  • Nuisance - is also a crime
  • Defamation - lowering the estimation of another in the eyes of society. Libel, a permanent form, ie in writing, Slander, a transient form, ie spoken.
  • Negligence - the breach of a duty to care
  • Deceit or fraud - making a false statement of fact with the intention that it will be acted upon.
  • Injurious falsehood - that the plumber is not qualified
  • Passing off - pretending you did some work in order to obtain work that another should have had.
  • Conspiracy - where two or more people combine in order to cause some harm.
  • Malicious prosecution - instituting criminal proceedings against a person which would damage them in some way.
  • Malicious inducement of breach of contract - malice must be proved. I induce you to leave your employer and come and work for me so that I can get his contracts and put him out of business.
 

Remedies for Tort

Remedies for torts are either judicial which are available through the courts or extra-judicial, which an injured person can exercise themselves. 

Judicial

These are damages and injunctions.

Damages may be Nominal which are awarded for a technical infringement where there has been no real damage; or Real ie financial compensation awarded for some real harm suffered by the plaintiff.

Exemplary damages may be award in excess of any material loss to show the court’s sympathy with the plaintiff or to penalize the defendant.

Extra-judicial
  • Forcible retaking of chattels
  • Force for self defence
  • Force to prevent trespass
 


Task 8.2.1 Tort

Describe the nature of a tort and the remedies available.

Word Guide:  300 – 400

 

8.2.2 Negligence

Negligence is a tort, it is a breach of duty that a person owes another. It requires that you must take reasonable care to avoid acts or omissions which you can reasonably foresee are likely to injure another person: It imposes a duty of care and relates to three concepts:
  • reasonable foreseeability of harm
  • the claimant and the defendant being in a relationship of proximity
  • it being fair, just and reasonable to impose liability for careless actions.
 
Negligence is a civil wrong though it can also be a criminal act as well. It can be defined as conduct that falls short of what a reasonable person would do to protect another person from a foreseeable risk of harm.

Breach of duty is not restricted to professionals it applies to all members of society who have a duty to exercise reasonable care toward others and their property. For a breach of duty to be upheld by the courts the danger must be sufficiently foreseeable according to the standard of knowledge known at the time.


Duty of Care

The Law of Tort imposes a legal obligation on an individual and a company requiring them to take all reasonable care while performing any acts which could foreseeably harm others. It requires that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure or harm another person. Failure to do so would make the individual liable for negligence and for an action for damages being instigated against them. In a work situation the injured party may alternatively take action against the individuals’ employer.

 
Vicarious Liability 

Vicarious liability is where an employer is responsible for the torts of their employees that are committed during the course of employment.

The employer is legally responsible for the negligence of the employee because the employee is held to be an agent of the employer. If a negligent act is committed by an employee acting within the general scope of her or his employment, the employer will be held liable for damages, whether or not such act or omission was specifically authorised by the employer.

 


Task 8.2.2 Negligence

Discuss the ways that can be used to ensure that you maintain a duty of care on site and discuss the areas that potential problems of Negligence could arise.

Word Guide:  300 – 400

 

8.2.3 Nuisance

There are three types of nuisance all of which can occur during construction work:
  1. Public Nuisance – this is a crime
  2. Private nuisance – a tort
  3. Statutory nuisance – created by Acts of Parliament
 

1. Public Nuisance

A public nuisance is an act or omission which materially affects the reasonable comfort and convenience of life of a reasonably large proportion of the population ie a village. The obstruction of the highway or making a highway dangerous is examples as is polluting a public water supply.

As public nuisance is a crime it is no defense to say that there was consent as one can never consent to a crime.

The obstruction of the highway must be permanent or of sufficient duration to be a nuisance, the obstruction for a reasonably short period may not be a nuisance.

Public nuisance may also be committed by someone who occupies premises close to the highway. If they fail to maintain a wall which collapses and injures someone on the highway they leave themselves open to be sued, regardless of if they knew of the danger or not. This relates to damage occurring due to disrepair not natural causes or other people’s damage.

 

2. Private Nuisance

A private nuisance is the interference for a substantial length of time by owners or occupiers of land, with the use or enjoyment of neighbouring land. Such interference may be caused by noise, smoke, smell, water, gas, fumes, roots or any type of behaviour which causes the neighbour to be unable to use or enjoy his property.

 
Suing for Nuisance

In order to sue successfully damage or harm must have been caused. This may take the form of physical damage to the property caused by roots or vibration. Alternatively, it may interfere with the use or enjoyment of the land, though this must not be trivial nor must it be occasional.

Construction work can be classed as excessive and unreasonable if the noise and dust adversely affects the trade of another business.

The nuisance must be caused by another person on neighbouring property, not on the plaintiffs own property.


Who can sue?

The plaintiff must prove that he has the right to enjoy the land or an easement over the land. Consequently he must be in possession unless the damage is physical and affects the property in some permanent way in which case someone who is not in possession may sue.


Who can be sued?

The occupier – He is responsible for his own acts and his family, employees, guests, contractors. The occupier is also responsible for nuisances which were created by previous owners/occupiers.

Creator of the nuisance – He is responsible even if he has left the land.

Persons authorizing a nuisance – If you let a property/land and the tenant create a nuisance you could be sued. Note the inclusion of a clause in a letting agreement prohibiting nuisance.


Remedies
 
Damages – The plaintiff would be entitled to compensation. This could be awarded even though the plaintiff acquired the property after the nuisance occurred ( In Master v. Brent LBC 1978 the plaintiff purchased a house some time after the council had planted trees, the roots of which caused subsidence, he was able to recover the cost of remedying the damage).

Injunction – This may be permanent or it may require the modification of behaviour e.g. operations to be carried out only between certain hours. They may also be granted but suspended in order to allow the defendant to modify his behaviour.

Abatement – This allows the a person to abate the nuisance himself e.g by cutting off overhanging branches which impinge on his property.

 

3. Statutory Nuisance

There are various pieces of legislation which make some behaviour statutory nuisances. The main areas are Control of Pollution and the Public Health Acts.


Dealing with noise and noise pollution

You must take reasonably practicable measures to reduce noise exposure by means other than providing ear protection if you or anyone who works for you is exposed to either:
  • a daily personal noise-exposure level of 90 decibels or above, which covers noise exposure over the course of a working day
  • a peak sound pressure of 200 pascals or above, produced by a single loud noise
The most effective way of controlling noise is by removing the source of the noise. This may be achieved by changing working practices or processes to avoid noise risks without making them less efficient. If this isn't practicable, you must take steps to reduce the level of noise by looking at each source of the noise and considering how it can be controlled.

In order to reduce noise you should consider both engineering and organisational solutions, such as:
  • use dampening to stop machine panels vibrating
  • isolate vibrating machinery
  • reduce fan speeds
  • fit silencers on exhausts
  • enclose machinery parts
  • put up soundproof barriers
  • use insulation to contain sound within buildings where noisy work is carried out
  • change working patterns so that any exposure to high noise levels is for shorter lengths of time
  • position sources of noise further away from workers
You should also consider the impact of noise on people in the vicinity of your activity. For instance, you could position sources of noise away from the boundaries of the premises.

Information on noise and how to reduce it is available from the Health & Safety Executive website. This can be obtained by clicking the Noise link or from the HSE website and then doing a search on any aspect of noise.

 

Trespass

The most common form of trespass is entry on to another person’s land and is an unauthorised interference with a person’s possession of land. It is the direct invasion of possession which is enables the possessor to take action. There has to be an intention to interfere with the right of possession. Trespass to land does not require proof of damage for it to be actionable. Thus, the defendant cannot claim that he entered the land reasonably and/or with due care.

There are other forms of trespass, such as placing objects on the land, or even placing objects that are in contact with the plaintiff’s property or land. Where someone was lawfully on the land, either by exercising a right of entry, or because he had permission to be on the land, that person will be committing trespass if he abuses the right or permission by acting outside the purpose for which he was granted the right/permission. A trespass will also be committed if he remains on the land after the right/permission has expired. In the event of trespass actions may be taken to seek damages, or an injunction, or both.
 



Task 8.2.3  Monitor and Implement Site Measures

Explain how you monitor and implement site measures to ensure compliance with legal obligations in respect of nuisance and trespass.

Word Guide:  300 – 400
 
 



Section 3. Legal Requirements on Site

Learning outcome:  On completion the learner will: Know how to ensure the work carried out on site conforms to all legal requirements.

  
Contents 
 
8.3.1 Planning and Building Regulations
8.3.2 Conservation and Archaeology
8.3.3 Insurance
8.3.4 Other Legal Requirements
 

Before any construction work can take place there are a number of legal requirements that must be addressed. 

 

8.2.1 Planning and Building Regulations

Planning Law

If the work requires Planning Permission no work can be carried out before planning permission is obtained.

The purpose of planning legislation is to ensure that any development:
  • Is in keeping with its surroundings and conforms to the overall Structure Plan of the area, for example new office blocks and factories are not normally allowed in the middle of housing estates.
  • The design and aesthetics are not in contrast to the surrounding area and that the project blends in with other buildings in the vicinity, for example brick houses are normally resisted in villages predominantly of stone cottages.
  • Does not detract from the local amenity of the area in terms of land use, increased traffic or noise or increased pollution, as would, for example, a maggot farm near houses.
The requirements of the planning legislation mean that the rights of the owner to use land are, to a certain extent, subordinate to the good of the community.


Planning Applications

Information on the procedures for submitting a planning application is available from the Local Planning Authority. They will ensure that statutory publicity requirements such as site notices, newspaper advertisements or notification to neighbours are adhered to.

Planning applications may be submitted in two ways:

 

Outline

This stage is used to assess the likelihood of a scheme being accepted without the expense of preparing detailed plans. Outline planning permission could be sought, for example, to build 20 dwellings on a given site. If this is approved the developer would then have to go back to the Local Authority in order to get detailed or full planning permission.

An application for outline planning permission is a useful way of assessing a site prior to its purchase for a specific purpose. If it is intended to purchase a site for a certain type of development it is pointless to acquire it if that type of development would not be permitted. It is permissible, therefore, to specify in a contract that the site would be purchased 'subject to planning permission'. Planning permission will have an immediate effect on the value of the land and it should be noted that a site with planning permission is worth considerably more than a site without.

Outline approval also overcomes the need to spend large amounts on design fees until approval to go ahead is granted.

Outline planning permission is valid for three years from the date of approval.

 

Detailed or Full

Having received outline permission to develop a site, e.g. approval is granted to construct 20 dwellings; the developer would then apply for detailed permission. It is at this stage that the design of the dwellings and the types and colours of finishes would be specified.

It is not essential to seek outline permission in all cases. If the developer is confident that the plans submitted would be approved, outline permission can be dispensed with and an application for full planning permission only need be submitted.

Once full planning permission is given it is operative for five years. However, if outline permission was previously granted the five-year period will start from the date that outline permission was granted. If the development has not been started  within that time period a new application will be necessary. If the period has not expired, an application for an extension of consent may be applied for.

 

Approval Subject to Conditions

The Local Authority may grant planning permission subject to conditions; these may apply to the design, materials used or the layout of the development.

Conditions can also require the developer to enter into an agreement with the Highway Authority under Section 40 of the Highway Act 1959. This requires that any roads constructed are done so to the Local Authorities specifications, in order that they are adopted by the Highway Authority on completion of the development.

Any condition specified by the Local Authority must be:
  • Necessary
  • Relevant to planning
  • Relevant to the development permitted
  • Reasonable
  • Precise
  • Enforceable

Building Regulations

Prior to any building or alteration work being undertaken, or a change of use to any existing building, it is essential that Building Regulation approval is first obtained.  For minor works, however, a building notice can be served on the Local Authority, although a building notice cannot be used if the building is to have a use which comes under the Fire Precautions Act.

Building Regulations approval involves an application being submitted to the Local Authority, this is normally done at the same time as full planning permission is sought.

The purpose of the Building Regulations is to:
  • Ensure the safety, health and welfare and convenience of all people who use or are affected in any way by any matter relating to buildings, or the building itself.
  • Prevent the waste or contamination of water.
  • Reduce the waste of fuel and power.
As in the case of Planning Permission, no work should be commenced until it has been authorised by the Local Authority.

The Building Control Officer will inspect the work during the course of construction in order to ensure that it complies with the requirements. Alternatively, for housing developments the National House Building Council (NHBC) may be used as the approved inspector (someone qualified to carry out the task of confirming that the building is constructed according to the Building Regulations).

Inspection of the work must be carried out by an Approved Inspector who must be informed 48 hours prior to commencement of work. S/he will then require 24 hours notice to inspect at the following stages:
  • Excavation for foundations.
  • Foundation concrete placed.
  • Damp-proof course in position.
  • Oversite fill material in position.
  • Drains laid.
  • Drains back filled.

Seven days notice will be required prior to completion of the works and occupation of the building.

If an Approved Inspector is used S/he will submit an initial notice to the Local Authority with the drawings and evidence of insurance. If the Local Authority accepts the notice it becomes the Approved Inspectors not the Local Authority who are responsible for the enforcement of the regulations. On satisfactory completion the Inspector issues a certificate to the developer and the Local Authority.

Failure to conform to Planning and Building Regulations can result in the work having to be redone or even removed completely.

 


Task 8.3.1 Building Regulations

Explain how you will ensure that the site work is conducted in ways which conform to the requirements of the building and planning regulations and building control procedures.

Word Guide:  300 – 400



8.3.2 Conservation and Archaeology

Conservation Areas

These are areas which the Local Authority have deemed as being of character or appearance which should be preserved. Permission is required before any building in a conservation area can be demolished.

 

Listed Buildings

A listed building is a building which is included on a list compiled by the Secretary of State for the Environment. The list contains buildings or other structures which are of special architectural or historic interest.

Each entry on the list is graded according to their importance. All buildings constructed before 1700 which survive in or close to their original state are included, as are most buildings built between 1700-1840. More recent buildings are graded according to their importance. These are:
  • Grade I listed buildings are of exceptional interest.
  • Grade II* are of particular importance and may contain outstanding features.
  • Grade II are of special interest which warrants their preservation.

Before any work is carried out on a listed building consent must be obtained from the Local Planning Authority. Failure to do so can result in a fine or even imprisonment. In some cases it may be necessary for the Historic Buildings and Monuments Commission or other interested parties to be consulted before permission is given.

Advice can be obtained from English Heritage on any ancient monuments, listed buildings or conservation areas in England.

 

Archaeology

There is, during construction work, the possibility that archaeological remains may be unearthed. If these are found you would be required to stop work and contact the local planning authority and local council archaeologist immediately. If you find human skeletal remains or evidence of a burial ground, all work in the area must stop and the police must be informed immediately. The police will contact the Coroner or in Scotland, the Procurator Fiscal and the local council archaeologist if required.

If the site to be worked on is known or suspected to be of archaeological interest there may be conditions attached to the planning consent for your development that relate to archaeology. It is good practice, before you start work, to check if your site contains protected archaeology or listed buildings. You can do this by contacting the local council archaeologist.

 
 


Task 8.3.2 Archaeology

Describe the actions a construction site manager must undertake on the discovery of archaeology on site.

Word Guide:  200 – 300

 

Protection of Trees

Damage to trees can occur all too easily on construction sites, for example by root severance during excavations (whether for buildings or underground services), soil compaction by vehicles or materials, the raising or lowering of soil levels, fires, careless contact with plant and equipment, spillage of chemicals etc. When granting outline planning permission, the LPA may consider it appropriate to impose conditions which would have the effect of protecting trees, for example by requiring a building to be constructed within a specified 'footprint' or, if landscaping is a reserved matter, by requiring the submission of details relating to trees to be retained on the site. Such details might include their location in relation to the proposed development and assessments of their health and stability. When granting full planning permission, conditions may be used, for example, to require the erection of protective fencing around trees during the course of development or restricting works which would adversely affect them. The LPA may consider it necessary in the circumstances to require erection of the fencing before the commencement of the work.

The LPA should decide in each case whether trees should be safeguarded by using a planning condition or a tree preservation order (TPO) or both.


Tree Preservation Order (TPO)

A TPO is an order made by a local planning authority (LPA) in respect of trees or woodlands. The principal effect of a TPO is to prohibit, without the LPA's consent the:
  • cutting down,
  • uprooting,
  • topping,
  • lopping,
  • wilful damage, or
  • willful destruction

The cutting of roots is potentially damaging and so requires the LPA's consent.

The LPA's consent is not required for cutting down or carrying out work on trees which are dead or dying or have become dangerous although a dead or dying tree may provide a habitat for plants and wildlife protected under the Wildlife and Countryside Act 1981. Trees with hollows or crevices, for example, provide important natural roost sites for many bat species covered by the 1981 Act.

Determining whether a tree is dead, dying or dangerous is not always a straightforward matter. Whether or not a tree has become dangerous for the purpose of the statutory exemption is a question of fact. In deciding whether trees have become dangerous the Courts adopt the sensible approach of a prudent citizen; there must be a present danger which need not be limited to disease or damage to the trees themselves. The threatened danger does not actually have had to have occurred; it is sufficient to find that, by virtue of the state of the trees, their size, their position and such effect as any of those factors have, one can properly conclude that the trees have become dangerous. The Court will look at what is likely to happen, such as injury to a passing pedestrian.

Anyone proposing to cut down a tree is advised to give the LPA five days' notice before carrying out the work, except in an emergency. Anyone who is not sure whether the tree falls within the exemption is advised to obtain the advice as if work is carried out on a protected tree, the burden of proof to show, on the balance of probabilities, that the tree was dead, dying or dangerous rests with the defendant.

 


Task 8.3.3 Tree Preservation Orders

Explain the ways in which tree preservation orders affect site operations.

Word Guide:  200 – 300


8.3.3 Insurance

Insurance is a form of risk management which is primarily used to hedge against the risk of a contingent, uncertain loss. Insurance is defined as the equitable transfer of the risk of a loss, from one entity to another, in exchange for payment. An insurer is a company selling the insurance; the insured, or policyholder, is the person or entity buying the insurance policy. The amount to be charged for a certain amount of insurance coverage is called the premium.
 
The transaction involves the insured assuming a guaranteed and known relatively small loss in the form of payment to the insurer in exchange for the insurer's promise to compensate (indemnify) the insured in the case of a financial (personal) loss. The insured receives a contract, called the insurance policy, which details the conditions and circumstances under which the insured will be financially compensated.

Due to the nature of the work involved in the construction industry there are three main categories of risks involved:
  • Risk of injury or death to people on or passing by a site
  • Carrying out of works may cause damage to property other than the works themselves or unlawful interference
  • The possibility of loss or damage to the works themselves or to site materials.

There are some legal requirements for insurance cover that businesses have to take out.  Other insurance is advisable but not legally required. 

 

Employers Liability Insurance

This is a legal requirement for any business employing people. It protects the employer of people against his legal liability for accidents to or diseases sustained by his employees in the course of their employment.  It is compulsory under the Employer’s Liability Act 1969 to ensure that an injured employee or his dependants, obtains compensation regardless of whether or not the contractor has the financial resources to meet the employee’s claim.

 

Public Liability Insurance

Legally required cover for a business in the event of anyone entering the premises of the business sustaining an illness, injury or disease.  This is the insurance that covers the business if a customer slips and breaks a leg. The extent of the cover is largely based on what the company expects to have to pay in the event of a claim being made against it.  Usually cover is arranged for at least £5 million but can be much higher.

 

Product Liability Insurance

This insurance covers the business in the event that it causes damage in some way as a result of a faulty product.  This damage does not have to be physical but could also include damages suffered by another business as a result of using a faulty piece of equipment.  For example, a firm might lose business because they had been supplied with a piece of faulty machinery.

 

All Risk Policy

The All Risk Policy for contractors covers loss/damage to the contractor’s construction works and site materials.  

 
 


Task 8.3.4 Insurance

Describe the principles of and the needs for insurance on construction contracts.

Word Guide:  200 – 300

 

8.3.4 Other Legal Requirements

A number of legal requirements exist in relation to certain types of developments; these are frequently referred to as Section Agreements. The most common are:
Section 18 - This relates to the adoption of sewers by the Local Authority and normally involves the lodging of a bond by the developer. This has now been replaced by Section 104 of the Water Industries Act 1991 though is still referred to by many in the Construction Industry as a Section 18.

Section 38 & 40 - Relates to highway adoption. Once again a bond is required as is the payment of a supervision fee which is required in order that the Local Authority can ensure that all work is carried out according to their specification.

Section 106 - Regulates the use of land normally outside the curtilage of the site to provide the necessary infrastructure upgrading or approach works. This must be agreed prior to the release of planning consent.

 

The Highways Act 1980

The Highways Act 1980 (1980 c.66) is an Act of the Parliament of the United Kingdom dealing with the management and operation of the road network in England and Wales. It consolidated with amendments several earlier pieces of legislation. Many amendments relate only to changes of highway authority, to include new unitary councils and National Parks.

 

Byelaws

In the United Kingdom, byelaws are laws of local or limited application made by local councils or other bodies, using powers granted by an Act of Parliament, and so are a form of delegated legislation. Some byelaws are made by private companies or charities that exercise public or semi-public functions, such as airport operators, water companies or the National Trust.
 
At present, because byelaws create criminal offences that can be prosecuted in Magistrates' Courts, they must be approved by central government before they can come into force. However, there are plans to make offences against byelaws punishable through the use of Fixed Penalty Notices, and to remove the need for local council byelaws to be centrally approved.
 
Local council byelaws are generally restricted in scope to a particular place, for example a park, or a particular class of activities, such as amusement arcades or the employment of children. Byelaws made by public transport companies are limited to the transport facilities operated by the organisation making the byelaw.
 
 
 


Unit Complete
 
You have now completed Unit 8, and you should complete the assignment and send it to info@gatesmacbain.co.uk.

When submitting your assignment you should ensure that it meets all the requirements set out on the Submitting Assignments page, which is accessible from the Student Area or towards the top of the column at the left of this page.

If it does not conform in all respects it will be returned to you and not sent for assessment resulting in delay. ALL questions must be answered in your own words.  Any indication of plagiarism will mean that the assignment will fail and be returned to you.
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