Legal framework and processes Flashcards
What is the NPPF and what has it replaced?
National planning policy framework
has replaced reams of planning guidance specifically most PPSs and remaining PPGs. LPAs must redraft LPFs to comply. Where LDFs are silent there is a presumption in favour of ‘sustainable development’
What options are available when a planning application is rejected?
There is (unintentional) ambiguity here. Taken at face value if the application is rejected before being accepted - then investigate reasons (normally insufficient information of procedural error) and re-submit.
If read as ‘refused’ then: consult with LPA re. reasons, amend and resubmit or appeal
How are buildings of architectural and / or historic interest and their setting protected?
Listed Building and Conservation Area legislation
What regulations apply to health and safety and what are the main statutory duties of the architect?
HSAW Act 1974; CDM regulations 2015
The architect is classified as a designer. Designer duties include notifying the employer of his/ her duties under the regs. Including the appointment of a CDM co-ordinator, designing with H&S in mind, designing out hazards, managing - reducing risks arising out of the design and including construction, maintenance and demolition
What are the different ways that you can apply for Building Regulations approval?
Building notice and full plans
The term is BCBs - Building Control Bodies: Local authority building control, Approved inspectors, Local Authorities acting as consultants
Name the three essential elements of a tortious claim of negligence?
- A professional duty of care that is relevant to the event
- Loss or damage incurred because of the negligence
- Absence of a contract
How would a Certificate of Immunity be used?
This would be used to write out/disclaim, the responsibilities of one party out of a Contract.
If a Client chooses not to appoint a Principal Designer under the CDM Regulations how are these duties dealt with?
If it is a commercial client who chooses not to appoint a Principal Designer then the duties automatically fall to them. However it is the responsibility of the architect to inform them of these. If it is a domestic client, the duties automatically fall with the architect.
Explain the difference between ‘fitness for purpose’ and ‘reasonable skill and care.
Fitness for purpose is a performance spec which means that the work carried out must fulfil a pre-determined criteria and the architect or contractor is liable if this does not meet what the client requires and expects. However an architect cannot be seen to be negligent if what was required is ‘reasonable skill and care’ if it is believed that they acted in the same way as would an ‘average professional in the same circumstance’. See Friern Hospital case.
In planning law how is ‘development’ defined?
Development is the carrying out of building operations on land or making any material changes in the building or land.
1) How do CDM Regulations improve health and safety in the construction industry?
2) What is the name given to the person responsible for preparing the Health and Safety Plan?
3) Does a commercial client carry the same duties and responsibilities as a domestic client?
1) It provides regulations and guidance for identifying, recording risks and provisions for addressing health and safety during pre-construction and construction. It assigns duties and responsibilities.
2) Principal Designer.
3) No. Commercial clients are responsible for CDM compliance and for appointing Consultant. The Domestic client has only one duty: to appoint a Principal Designer and a Principal Contractor.
What is a ‘Build-Over Agreement’ and what would be the penalties for not having one in place when required?
It is a required approval for building over or near public infrastructure. Not having on in place may lead to an injunction for the removal of the building and associated damages.
What is a Party Wall Award, its purpose and key players. Briefly describe the process.
Party Wall Award is granted for the agreement when a dispute is said to exist. Party Wall Surveyor and the two neighbours’ team will be involved. It is different from Party Wall Notice, when there is no dispute.
Name the three essential elements of a tortious claim of negligence?
duty of care, breach of the duty and damages
Tortious claim of negligence needs to consist of a duty of care, breach of the duty of care, causation and damages. Stephenson vs Donoghue, the beer provider has a duty of care to his neighbour, client buying the beer and drinking. The breach of duty of care in this case is the beer bottle containing a snail that caused illness and lead to damages claimed. The lack of care with the production of the beer bottle to be sold was negligent.
How would a Certificate of Immunity be used?
In England a Certificate of Immunity from Listing, generally known as a Certificate of Immunity (COI), is a document which guarantees that a building will not be statutorily listed (added to the National Heritage List for England (NH;LE) although current COIs can be searched for on the NHLE) or be served with a Building Preservation Notice (BPN) by the local planning authority, for the succeeding five years. Such a certificate may be sought by developers of a building or site in order to establish certainty that the project is viable.
If a Client chooses not to appoint a Principal Designer under the CDM Regulations how are these duties dealt with?
1) Commercial Client: It is the client’s duty to appoint a Principal Designer and Principal Contractor.
2) Domestic Client: If the domestic client does not appoint a Principal Designer, the contractor/principal contractor takes on the duties.
Explain the difference between ‘fitness for purpose’ and ‘reasonable skill and care.
Reasonable skill and care is defined by a standard of service which is offered where no material judgement can be made on the service. Fitness for purpose is more often defined by a service or product which can be materially judged. These can also be defined as prescriptive vs performance based.
Paragraph 55 of the national planning policy framework states ‘planning conditions should be imposed where they are:
1 - necessary 2 - relevant to planning and 3 - to the development to be permitted 4 - enforceable 5 - precise 6 - reasonable in all other respects
The pilicy requirement is reffered to in this guidance as the 6 tests
What is the difference between an express term and an implied term?
Express
- There are the obvious terms as agreed by the parties.
- Written down – ‘four corners’ rule Be careful to read what is written down for if you have misread or simply not read the contract and have signed it you will be bound by the terms.
Implied
- by the court Contracts often fail to provide for ‘events’.
- A party may try to convince a court that the term(s) are implied saying that the court should ‘read between the lines’.
- Example of implied – Lease of a furnished property it is implied that
the flat is fit for habitation
- ‘Officious bystander’ – “Oh, of course” or “That goes without saying”
What is ‘duty of care’?
‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour: and the lawyer’s question, who is my neighbour?
Lord Atkin:
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.
Who, then, in law is my neighbour? The answer seems to be – persons who are so closely affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or commissions which are called in question.’
Give a example of case law for the law of negligence
Donoghue v Stevenson 1932
‘The Paisley Snail’ or ‘The snail in the bottle’
Donoghue v. Stevenson, also known as the ‘snail in the bottle case’, is a significant case in Western law. The ruling in this case established the civil law tort of negligence and obliged businesses to observe a duty of care towards their customers. The events of the case took place in Paisley, Scotland in 1928.
‘Mrs Donoghue went to a café with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer.
Her claim was successful. This case established the modern law of negligence and established the neighbour test.’
Reasonable skill and care - describe the Bolam case
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
Mr Bolam was a voluntary patient at Friern Hospital, a mental health institution run by the Friern Hospital Management Committee. He agreed to undergo electro-convulsive therapy. He was not given any muscle relaxant, and his body was not restrained during the procedure. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the acetabula. He sued the Committee for compensation. He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved.
It is important to note that at this time juries were still being used for tort cases in England and Wales, so the judge’s role would be to sum up the law and then leave it for the jury to hold the defendant liable or not.
English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. doctors): the Bolam test. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that ..
“If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”.
What is the ‘Bolam’ test in tort law?
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
It established the ‘ordinary, competent practitioner standard’ and sets out the defence that ‘the practitioner has acted in
accordance with a practice accepted as proper by a responsible body’.
A practitioner defendant simply needs to produce a report from another expert to say that his course of action was accepted as proper by “responsible body” of professional opinion.
Define tort and give examples
What is the name of the person who commits a ‘tort’?
Tort - a breach of a legal duty (other than in contract) entitling the claimant to sue the defendant for damages or, in certain cases, obtain an injunction.
Torts include:
- Negligence
- Trespass
- Nuisance
- Defamation
Tortious (not tortuous) - the wrong
Tortfeasor - person who commits a wrong
Tort law is largely case law developed in the nineteenth and twentieth centuries and is still evolving.
Tort
Describe Rylands v Fletcher 1868
‘Where a person for his own purpose brings on to his land and collects and keep there anything likely to do mischief if it escapes, he must keep it at his peril and is prima facie answerable for all damage that is the natural consequence of its escape’.
The defendants employed independent contractors to construct a reservoir on their land. The contractors found disused mines when digging but failed to seal them properly. They filled the reservoir with water. As a result, water flooded through the mineshafts into the plaintiff’s mines on the adjoining property.
The plaintiff secured a verdict at Liverpool Assizes.
The Court of Exchequer Chamber held the defendant liable and the House of Lords affirmed their decision.
Outline the four stages of tort
- Duty of care
- Breach of duty of care
- Causation
- Damage
