Week 6: Construction Law Flashcards
In the private sector, buildings are typically designed to …
hint: solutions
Acceptable solutions
Verification methods
Standards
Guidelines
(Very little thought given to the big picture)
What are the Three ‘Co-Equal’ Arms of Government?
(NZ & the Westminster System)
Legislature (statutory acts, supreme building law)
- Building act 2004
Executive (subordinate legislation, regulations, codes, standards)
- Building regulation 05/06/92
- Building code
Judiciary (rule on the law, statutory law, common law, contracts, torts)
- Acceptable solutions and verification methods
- Materials by reference (codes and standards)
- Determinations (dispute resolution)
What is the effect of acceptable solution or verification method?
Complying with the acceptable solution/verification method helps you comply with the (relevant) provisions of the building code, but is not the only way.
- Not compulsory
Define Deeming.
A statutory technique that extends the meaning of a word to make clear something which might otherwise be debateable.
- Deeming = “Treated as”
- Acceptable solution/verification method is a Deeming instrument
Standards and Codes are subject to the …
Building Act 2004
An acceptable solution/verification method must state …
The date on which it comes into force.
Whether the acceptable solution/verification method applies to building work for which a building consent has already been issued.
In a building required to be Type A or B construction, the following building elements and their components must be non-combustible …
External walls and common walls.
What are Performance Criteria?
Qualitative or quantitative criteria that the building is required to satisfy in performing its functional requirements.
- Different to acceptable solution/verification method (no prescriptive answer).
- They set thresholds.
The Building Act 2004 provides regulation of building work, establishment of licensing regime, setting of performances standards to ensure that …
People who use buildings can do so safely without endangering health.
Buildings contribute appropriately to health, physical independence, well-being of people.
People can escape if on fire.
What is a Tort?
A civil wrong independent of contract.
What are the two accidental types of Tort?
Negligence: Harming people or property where there is a duty to care not to harm. (e.g. leaky buildings, cladding fires, badly designed stairs)
Nuisance: Interference with public or private interest. (e.g. noise, spread of fire, water runoff)
What are the different types of Liability?
Strict liability: regardless of standard of care provided, liability by supplier is absolute. –> only have to show cause
Negligence: In reasonable care taken, no liability.
Contributory negligence: Injured also partly at fault. Usually last mover is fully liable.
What are the Five Elements which must be satisfied for a Negligence claim?
Duty of care
Breach of duty of care
Damage
Cause
Proximity
What is the Economic Model of Negligence?
what is the criteria for negligence?
L(x) = x + y + p(x)D(x) –> if responsible behaviour= obligation of ‘injured party’ (uni-lateral care)
- Probability of damage (p)
- Damage (D)
- Expected damage (p(x)D(x))
- Cost of precautions to lower expected damage (x) owed
- More precautions spent, lower expected damage.
- Total loss (L)
- Cost by injured (y)
Optimal care = x*
x<x* is negligent; likewise for y
x >= x* is not negligent; likewise for y
What is the order of hierarchy in the Westminster system?
- Statutory acts (Legislature supreme law)
- Regulations (Executive subordinate legislation)
- Design ‘cookbooks’, codes, standards (Executive subordinate legislation)
What does the executive body do?
- pass secondary legislation
- administer statutes
Who usually rules: judiciary or executive?
Judiciary ALMOST ALWAYS rules over executive.
on administrative and legislative decisions
What does the judiciary do?
- Rules on decision of executive: Judicial Review
- Lower (disputes tribunal, coroner’s court, environmental court) and senior (high court, court of appeal, supreme court) courts
What is the New Zealand Gazzette?
Official government newspaper of constitutional record. Almost all laws are required to be publicly notified via the NZ Gazzette.
What are the 2 types of decisions in the Judicial Review?
- Administrative executive decisions
- Legislative decisions
Is there a legal requirement for government to check the legality of a guideline?
No
rarely classified as subordinate legislation & errors can be disastrous
What is moral hazard?
Someone bears cost of another’s lack of effort. Person ‘x’ pays for person ‘y’ lack of effort/cost.
What is textual statutory interpretation?
straightforward procedural clause
What are the different types of contextual statutory interpretation?
hint: (known by its friends) and (of the source kind)
nositure a sociis (known by its friends): the meaning of an unclear word can be gathered from the context
ejusdem generis (of the source kind): if your example doesn’t fit in any ideas then it comes under this.
What is an example of purposive statutory interpretation?
Apply purposive principle to building code.
