Architect's Legal Pocket Book

Architect’s Legal Pocket Book

To Katinka, Julian and Marianne

Architect’s Legal Pocket Book Matthew Cousins RIBA, ARB, Dip Law (City), MST (Cantab), Dip Arch (UCL), BA (Hons)

AMSTERDAM • BOSTON • HEIDELBERG • LONDON • NEW YORK OXFORD • PARIS • SAN DIEGO • SAN FRANCISCO • SINGAPORE SYDNEY • TOKYO Architectural Press is an imprint of Elsevier

Architectural Press

Architectural Press is an imprint of Elsevier The Boulevard, Langford Lane, Kidlington, Oxford, OX5 1GB 225 Wyman Street, Waltham, MA 02451, USA First Published 2011 Copyright © 2011 Matthew Cousins. Published by Elsevier Ltd. All rights reserved The right of Matthew Cousins to be identified as the author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher. Details on how to seek permission, further information about the Publisher’s permissions policies and our arrangement with organizations such as the Copyright Clearance Center and the Copyright Licensing Agency, can be found at our website: www.elsevier.com/permissions This book and the individual contributions contained in it are protected under copyright by the Publisher (other than as may be noted herein). Notices Knowledge and best practice in this field are constantly changing. As new research and experience broaden our understanding, changes in research methods, professional practices, or medical treatment may become necessary. Practitioners and researchers must always rely on their own experience and knowledge in evaluating and using any information, methods, compounds, or experiments described herein. In using such information or methods they should be mindful of their own safety and the safety of others, including parties for whom they have a professional responsibility. To the fullest extent of the law, neither the Publisher nor the authors, contributors, or editors, assume any liability for any injury and/or damage to persons or property as a matter of products liability, negligence or otherwise, or from any use or operation of any methods, products, instructions, or ideas contained in the material herein. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Number: 2011923684 ISBN: 978-0-08-096603-8 For information on all Architectural Press publications visit our website at www.architecturalpress.com Typeset by MPS Limited, a Macmillan Company, Chennai, India www.macmillansolutions.com Printed and bound in the United Kingdom 11  12  13  14  10  9  8  7  6  5  4  3  2  1

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Contents Preface

x

List of Cases

xii

List of Statutes

xxi

1 Outline of Law What is law? The separation of powers The Supremacy of Parliament Judicial precedent Divisions of law Legal systems in the United Kingdom Who makes the law? Overview of the system of government in the United Kingdom Courts and Tribunals Law of the European Union 2 Building Legislation Legislation Legislation governing construction projects Legislation governing architectural practice Building Regulations Building Regulations 2010: The Approved Documents Control of building work Definition of building work Material change of use Materials and workmanship Buildings that are exempt from control under the building regulations Breach and enforcement of building regulations Local authority building control Building notice application Full plans application

1 2 2 3 3 5 6 6 8 14 17 18 19 21 22 24 24 25 25 26 29 30 30 31

vi   Contents

Local authority inspection of work Approved private inspectors Principal legislation governing buildings Principal legislation governing health and safety Principal legislation governing fire Principal legislation governing energy and sustainability Principal legislation governing the environment Other relevant statutes

32 32 33 38 41 42 45 47

3 Town and Country Planning Legislative and policy framework for the planning system Administration of the planning system Reform of the planning system Development Permitted development Planning permission or permitted development? Common project types Use Classes Planning permission Applying for planning permission Grant of planning permission Planning obligations Unauthorised development Challenging planning decisions Listed buildings Conservation areas Scheduled ancient monuments Tree preservation orders High hedges Countryside hedgerows Advertisements Protected species and habitats

72 81 82 88 92 96 101 108 113 122 124 125 128 129 131 133

4 Land Law General principles in land law Registered land

137 142

49 56 63 66 69

Contents    vii

Unregistered land Licences Leases Co-ownership Trust Fixtures Easements Adverse possession Restrictive covenants Party walls

146 147 148 150 152 152 154 164 167 169

5 The Law of Tort General principles of the law of tort Limitation Negligence Negligence: summary for architects Economic loss Negligent mis-statement Public and private nuisance Lawful visitors Damage and unreasonable use to neighbouring land

197

6 General Principles of Contract Law What is contract law? What is a contract? Limitation Classification of contracts Formation of a contract Intention to create legal relations Offer and acceptance Consideration Estoppel Terms of a contract Invalid contracts Misrepresentation Discharge of contracts

199 200 200 201 202 203 203 207 209 209 213 214 215

185 186 186 192 193 193 194 196

viii   Contents

7 Types of Contract List of standard building contracts Procurement Construction management Management contracting Partnering procurement Traditional procurement: Standard lump sum contracts Traditional procurement: Shorter lump sum contracts Traditional procurement: Measurement contracts Traditional procurement: Consumer contracts Traditional procurement: Cost plus contract Design and build procurement Management procurement Partnering procurement Other types of procurement 8 Contract Administration Contents and key clauses of the Standard Building Contract 2005 (Revision 2, 2009) Administering the contract Contract documents Drawings Bills of quantities Architect’s Instruction Extension of Time Force majeure Specified perils Inspecting site Site inspection checklist Defects Letter of intent Liquidated damages Quantum meruit Possession of the site Deferring possession of the site Rectification period Collateral warranties

217 219 226 227 229 230 236 241 242 244 244 247 249 251

257 259 260 260 260 261 263 264 264 264 266 267 270 271 272 272 273 273 274

Contents    ix

Third Party Rights Practical completion After practical completion Termination The Royal Institute of British Architects Contract Administration Certificates Clerk of Works Direction

275 276 277 278 280 287

9 Dispute Resolution Adversarial dispute resolution Non-adversarial dispute resolution

289 293

10 The Architect in Practice Liability Types of practice Professional indemnity insurance Architects Registration Board

295 300 306 307

British Standards

309

Further Reading

317

Glossary

323

References

333

Index

341

Preface This book has been written with a broad interest in the legal issues of buildings and the built environment. I was looking for a helpful and clear legal textbook that would best help me in the office, on site and to administer a project. After failing to find a suitable book, I decided to compile a guide of the most relevant legal issues of professional practice. It is acknowledged that the inclusion and exclusion of legal issues for architects is subjective. Given the limitation in size of the book, a careful balance has been sought between the range and depth of information an architect may need. This book does not attempt to give exhaustive analysis of the law and does not claim to be the basis of a single interpretation or an authority of the law. I have included references for those who wish to seek further information. However, anyone seeking legal advice should contact a solicitor or barrister. I have endeavoured to state the law as at 31st January 2011. The law generally covers England and Wales. www.matthewcousins.co.uk

Acknowledgments I express my gratitude to my father Edward Cousins for his assistance, in particular in relation to chapter 4, to my mother Christine Cousins and to my wife Katinka Cousins for her support during the writing of this book.

Disclaimer This book is intended to be informative only and is not a definitive source of legal information. In no event will the author or publisher be liable for negligence, loss or damage

Preface    xi

including, without limitation, indirect or consequential loss or damage, or any loss or damages whatsoever arising from use or loss of use of data or profits arising out of or in connection with the use of this book. If you are in any doubt you should contact a solicitor or barrister before undertaking any work.

List of Cases A G Securities Ltd v Vaughan [1990] AC 417 Abbey National Bank PLC v Stringer [2006] EWCA Civ 338 Abbey National Building Society v Cann [1991] 1 AC 56 Adams v Lindsell (1818) EWHC KB J59 Anchor Brewhouse Developments Ltd v Berkley House (Dockland Developments) Ltd [1987] 2 EGLR 173 Andreae v Selfridge & Co [1938] Ch 1 Anns v Merton LBC [1978] AC 728 Antoniades v Villiers [1988] 3 WLR 1205 Att-Gen of Southern Nigeria v John Holt and Company (Liverpool) Ltd [1915] UKPC 7 Attorney-General v PYA Quarries Ltd [1958] EWCA Civ 1 Baxhall Securities Ltd v Sheard Walshaw Partnership [2002] EWCA Civ 9 Berkley v Poulett [1977] 1 EGLR 86 Bernstein of Leigh (Baron) v Skyviews and General Ltd [1978] QB 479 Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council [1990] 1 WLR 1195 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Botham v TSB Bank plc [1997] 73 P & CR D1 Brickfield Properties Ltd v Newton [1971] 1 WLR 862 Brinkibon Ltd v Stahag Stahl und Stahwarenhandelsgesellscahft [1983] 2 AC 34 British Crane Hire v Ipswich Plant Hire [1974] QB 303

List of Cases    xiii

British Steel Corporation v Cleveland Bridge and Engineering Co Ltd [1981] 24 BLR 94 Brown and Brown v Gilbert-Scott and Payne (1992) 35 Con LR 120 Bruton v London and Quadrant Housing Trust [2000] 1 AC 406 Buckland v Butterfield (1820) 2 Brod & B54 Byrne v Van Tienhoven [1880] 5 CPD 344 Cala Homes (South) Ltd v Secretary of State for Communities and Local Government [2010] EWHC 2866 (Admin) Cantrell v Wright & Fuller Ltd (2003) TCC 30 July 2003 Caparo v Dickman [1990] 2 AC 605 Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 Chaffe v Kingsley [2000] 1 EGLR 104 Chappell & Co Ltd v Nestle Co Ltd [1959] UKHL 1 City Inn (Jersey) Ltd v Ten Trinity Square Ltd [2007] EWHC 212 (Ch) City of London Building Society v Flegg [1987] UKHL 6 Clay v AJ Crump & Sons [1964] 1 QB 533 Colls v Home & Colonial Stores Ltd [1904] AC 179 Consarc Design Ltd v Hutch Investments Ltd [2002] PNLR 712 Copeland v Greenhalf [1952] Ch 488 Corfield v Grant [1992] 29ConLR 58 Couturier v Hastie (1856) UKHL J3 Crest Nicholson v McAllister [2004] EWCA Civ 410 Crowley Civil Engineers v Rushmoor Borough Council [2010] EWHC 2237 (TCC) Curtis v Chemical Cleaning Co [1951] 1 KB 805

xiv   List of Cases

D&F Estates v Church Commissioners for England [1989] AC 177 D’Eyncourt v Gregory [1866] LR 3 Eq 382 Dalton v Angus & Co (1881) 6 App. Cas Darley Main Colliery v Mitchell (1886) 11 App. Cas 127 Davis Contractors v Fareham Urban District Council [1956] UKHL 3 Day v Ost [1973] 2 NZLR 385 Dean v George Doyle Walker [1996] EWCA Civ 505 Department of National Heritage v Steensen Varming Mulcahy & Others (1998) EWHC Technology 305 Derry v Peek (1889) 14 App Cas 337 Donoghue v Stephenson (1932) AC 562 Dutton v Bognor Regis UDC [1972] 1 QB 373 East Ham Corporation v Bernard Sunley [1966] AC 406 Eastwood v Kenyon [1840] 11 AD E438 Eckersley v Binnie and Partners (1988) 18 Con LR 1 Elitestone Ltd v Morris (1977) 1 WLR 687 Entores v Miles Far East Corp [1955] EWCA Civ 3 Federated Homes v Mill Lodge Properties Ltd [1980] 1 WLR 594 Felthouse v Bindley (1862) EWHC CP J 35 Florida Hotels Pty Ltd v Mayo [1965] 113 CLR 588 Freeman & Son v Hensler (1900) 64 JP 260 G Percy Trentham Ltd v Archital Luxfer (1993) 1 Lloyd’s Rep 25 Galliford Try Infrastructure Ltd v Mott MacDonald Ltd [2008] EWHC 1570 (TCC)

List of Cases    xv

George Fischer Holdings Ltd v Multi Design Consultants Ltd and Davis Langdon & Everest (1998) 61 Con LR 85 Gillett v Holt [2000] EWCA Civ 66 Goldberg v Edwards [1950] Ch. 247 Graham v Easington District Council [2008] EWCA Civ 1503 Gray v Taylor [1998] 1 WLR 1093 H&N Emmanuel v Greater London Council [1972] 2 All ER 835 Haley v London Electricity Board [1964] UKHL 3 Hall & Tawse South Ltd v Ivory Gate Ltd [1997] EWHC Technology 358 Hamp v Bygrave [1983] EGLR 174 Hartog v Colin & Shields [1939] 3 All ER 566 Hedley Byrne v Heller [1964] AC 465 Henderson v Merrett Syndicates [1995] 2 AC 145 Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWCA Civ 983 Hill v Tupper (1863) 2 H & C 121 Hodson Developments Limited v GTA Civils [2006] EWHC 1913 (TCC) Holland v Hogson (1872) LR 7 CP 328 Holwell Securities Ltd v Hughes [1974] 1 WLR 155 Household Fire Insurance Co v Grant (1879) 4 Ex D 216 HTA Architects v Countryside Properties [2002] EWHC 482 (TCC) Hunter v Canary Wharf [1997] UKHL 14 Hutton v Warren (1836) 1 M&W 466 HW Neville (Sunblest) v William Press (1981) 20 BLR 78

xvi   List of Cases

Hyde v Wrench [1840] 3 Beav 334 Ian McGlinn v Waltham Contractors [2007] EWHC149 (TCC) Ilford UDC v Beal [1925] 1 KB 671 Imperial College of Science & Technology v Norman & Dawbarn (1987) 8 Con LR 107 Investors in Industry v South Befordshire DC [1986] QB 1034 Ives v High [1967] 2 QB 379 J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 Jameson v Simon (1899) 1 F (Ct of Sess) 1211 Jarvis (J) and Sons Ltd v Westminster CC (1970) 7 BLR 64 Jarvis Homes Ltd v Marshall [2004] EWCA Civ 839 Jennings v Rice [2002] WTLR 367 Johnson v BJW Property Developments [2002] EWHC 1131 Junior Books v Veitchi [1983] 1 AC 520 Kay v Lambeth LBC [2006] 2 WLR 570 Kensington Chelsea and Westminster Area Health Authority v Wettern Composites and Others (1986) 31 BLR 57 Lambeth LBC v Blackburn [2001] 33 HLR 74 Latimer v AEC Ltd [1953] UKHL 3 Leakey v National Trust [1980] QB 485 Lemmon v Webb [1895] AC 1 Les Affreteurs Reunis SA v Walford [1919] AC 801 Liverpool County Council v Irwin [1977] AC 239 Lloyds Bank v Rosset (1990) UKHL 14 LMS International Ltd v Wallaby Investments Ltd [2005] EWHC 2065 (TCC)

List of Cases    xvii

London & Blenheim Estates Ltd v Ladbroke Retail Parks Ltd [2007] 1 WLR 2620 London County Council v Allen [1914] 3 KB 642 London and Suburban Land and Building Co. (Holdings) Ltd v Carey (1991) 62P and CR 480 Mariner International Hotels Limited v Atlas Limited [1990] 1 HKC 69 Martin v David Wilson Homes Ltd [2004] EWCA Civ 1027 Merrett v Babb [2001] 3 WLR 1 Midtown Ltd v City of London Real Property Company Ltd (1866) 11 App Cas 127 Miller v Emcer Products [1950] Ch 247 Minshall v Lloyd [1837] 2 M & W 450 Moncreiff v Jamieson (1925) 133 LT 46 Moody v Steggles [1879] AC 179 MRA Engineering Ltd v Trimester Corp [1988] P & CR 1 Mulvaney v Gough [2003] 1 WLR 360 Murphy v Brentwood District Council [1991] AC 398 National Provincial Bank v Ainsworth [1965] AC 1175 New Islington and Hackney Housing Association Limited v Pollard Thomas and Edward Limited [2000] EWHC Technology 43 Nye Saunders & Partners v Alan E Bristow (1987) 37 BLR 92 Oldschool v Gleeson (Construction) Ltd (1976) 4 BLR 103 Oxley v Hiscock (2004) EWCA Civ 546 P & S Platt Ltd v Crouch [2003] EWCA Civ 1110 Peabody Fund v Parkinson [1985] AC 210

xviii   List of Cases

Pearson Education v The Charter Partnership Limited [2007] EWCA Civ 130 Peter Lind & Co Ltd v Mersey Docks & Harbour Board [1972] 2 Lloyd’s Rep 234 Phipps v Pears [1965] 1 QB 76 (CA) Potton Developments Ltd v Thompson (1988) NPC 49 Prudential Assurance Co Ltd v London Residuary Body [1992] 3 WLR 279 Purbrick v Hackney LBC [2004] P & CR 553 Pyx Granite Co Ltd v Minister of Housing & Local Government [1958] 1 QB 554 R (Hart Aggregates Ltd) v Hartlepool Borough Council [2005] EWHC 840 (Admin) R v Shorrock (1994) QB 279 R v Teignbridge District Council ex parte Teignmouth Quay Co Ltd [1995] JPL 828 Re Ellenborough Park [1956] Ch 131 Re McArdle [1951] Ch 669 Redland Bricks Ltd v Morris [1881] 6 App Cas 740 Regan v Paul Properties Ltd & Ors [2005] EWHC 33 (Ch) Reinwood Ltd v L Brown & Sons Ltd [2007] BLR 10 Roadrunner Properties Limited v John Dean and ors [2003] EWCA Civ 1816 Robophone v Blank [1966] 1 WLR 1428 Roger v Snow [1573] Dalison 94 Royal Brompton Hospital NHS Trust v Hammond & Others (No.7) (2000) 76 Con LR 148 Rylands v Fletcher [1868] UKHL 1 Saeed v Plustrade Ltd [2001] EWCA Civ 2011

List of Cases    xix

Sage v Secretary of State for the Environment, Transport and the Regions and others [2003] UKHL 22 Sedleigh-Denfield v O’Callaghan [1940] AC 880 Shelfer v City of London Electric Lighting Company [1895] 1 Ch 287 Shey v US [1875] 92 US 73 Simpson v Weber (1879) 12 Ch.d.261 Smith v Gates [1915] AC 599 Solle v Butcher [1950] KB 671 Spencer v Harding (1870) LR 5 CP 561 Stack v Dowden [2007] UKHL 17 Storey v Charles Church Developments (1996) 73 LR 1 Street v Mountford [1985] UKHL 4 Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281 Sutcliffe v Chippendale & Edmondson (A Firm) (1971) 18 BLR 149 Sutcliffe v Thackrah [1974] AC 727 Tamares (Vincent Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] EWCA Civ 1309 Targett v Torfaen BC [1992] 3 All ER 27 Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 Taylor v Caldwell (1863) 3 B & S 826 Tesco Stores Limited v The Norman Hitchcox Partnership Limited [1997] 56 Con LR 42 Test Valley Borough Council v Greater London Council (1979) 13 BLR 72

xx   List of Cases

Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd [1955] 1 WLR 761 Transco v Stockport MBC [2003] 3 WLR 1467 Turriff Construction Limited v Regalia Knitting Mills Limited [1971] 9 BLR 20 Tweddle v Atkinson (1861) 1 B & S 393 Victoria University of Manchester v Hugh Wilson and Lewis Womersley (1984) 2 Con LR 43 Voli v Inglewood Shire Council [1963] 110 CLR 74 Ward v Kirkland [1967] Ch 194 Webb v Frank Bevis [1940] 1 All ER 240 Wheat v E Lacon & Co Ltd [1966] AC 552 Wheeldon v Burrows (1879) 12 Ch D 31 Whitgift Homes Ltd v Stocks [2001] 1 All ER D 309 Williams & Glyn’s Bank Ltd v Boland [1981] AC 487 Williams v Roffey Bros [1989] EWCA Civ 5 Wiltshear v Cottrell (1853) 1 E & B 674 Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173 Wong v Beaumont Property Trust [1965] 1 QB 173 Woolley v Cheshire East Borough Council [2009] EWHC 1227 (Admin) Wright v Macadam [1949] 2 KB 488

List of Statutes Equality Act 2010 Localism Bill 2010 Local Democracy, Economic Development and Construction Act 2009 Climate Change Act 2008 Construction Act 2008 Planning Act 2008 Corporate Manslaughter and Corporate Homicide Act 2007 Greater London Authority Act 2007 Manslaughter and Corporate Homicide Act 2007 Climate Change and Sustainable Energy Act 2006 Commons Act 2006 Companies Act 2006 Compensation Act 2006 Consumer Credit Act 2006 Clean Neighbourhoods and Environment Act 2005 Constitutional Reform Act 2005 Disability Discrimination Act 2005 Regulatory Reform (Fire Safety) Order 2005 Housing Act 2004 Planning and Compensation Act 2004 Planning and Compulsory Purchase Act 2004 Sustainable and Secure Buildings Act 2004 Anti-social Behaviour Act 2003 Water Act 2003

xxii   List of Statutes

Commonhold and Leasehold Reform Act 2002 Land Registration Act 2002 Countryside and Rights of Way Act 2000 Freedom of Information Act 2000 Limited Liability Partnerships Act 2000 Local Government Act 2000 Contracts (Rights of Third Parties) Act 1999 Pollution Prevention and Control Act 1999 Competition Act 1998 Government of Wales Act 1998 Greater London Authority (Referendum) Act 1998 Human Rights Act 1998 Northern Ireland Act 1998 Architects Act 1997 Referendum (Scotland and Wales) Act 1997 Arbitration Act 1996 Badgers Act, Wild Mammals (Protection) Act 1996 Construction Act 1996 Employment Right Act 1996 House Grants, Construction and Regeneration Act 1996 Housing Act 1996 Housing Grants, Construction and Regeneration Act 1996 Noise Act 1996 Party Walls etc. Act 1996 Trusts of Land and Appointment of Trustees Act 1996 Disability Discrimination Act 1995 Environment Act 1995 Landlord and Tenant (Covenants) Act 1995

List of Statutes    xxiii

Sale and Supply of Goods Act 1994 Clean Air Act 1993 Housing and Urban Development Act 1993 Leasehold Reform, Housing and Urban Development Act 1993 Noise and Statutory Nuisance Act 1993 Access to Neighbouring Land Act 1992 Protection of Badgers Act 1992 Planning and Compensation Act 1991 Water Industry Act 1991 Water Resources Act 1991 Planning (Listed Buildings and Conservation Areas) Act 1990 Town and Country Planning Act 1990 Environmental Protection Act 1990 Companies Act 1989 Control of Pollution (Amendment) Act 1989 Law of Property (Miscellaneous Provisions) Act 1989 Housing Act 1988 Local Government Act 1988 Consumer Protection Act 1987 Housing and Planning Act 1986 Insolvency Act 1986 Latent Damage Act 1986 Sex Discrimination Act 1986 Business Names Act 1985 Building Act 1984 Occupiers’ Liability Act 1984 Supply of Goods and Services Act 1982

xxiv   List of Statutes

Countryside Act 1981 Wildlife and Countryside Act 1981 Highways Act 1980 Limitation Act 1980 Local Government, Planning and Land Act 1980 Ancient Monuments and Archaeological Areas Act 1979 Charging Orders Act 1979 Sale of Goods Act 1979 Civil Liability (Contribution) Act 1978 Unfair Contract Terms Act 1977 Rent Act 1977 Unfair Contract Terms Act 1977 Race Relations Act 1976 Local Land Charges Act 1975 Control of Pollution Act 1974 Health and Safety at Work etc. Act 1974 Land Compensation Act 1973 Supply of Goods (Implied Terms) Act 1973 Defective Premises Act 1972 Land Charges Act 1972 Local Government Act 1972 Trade Descriptions Act 1972 Fire Precautions Act 1971 Employers’ Liability (Compulsory Insurance) Act 1969 Civil Evidence Act 1968 Trade Descriptions Act 1968 Civic Amenities Act 1967 Forestry Act 1967

List of Statutes    xxv

Leasehold Reform Act 1967 Misrepresentation Act 1967 Nuclear Installations Act 1965 Law of Property (Joint Tenants) Act 1964 Offices Shops and Railway Premises 1963 Rights of Light Act 1959 Occupiers’ Liability Act 1957 Copyright Designs and Patents Act 1956 Historic Buildings and Ancient Monuments Act 1953 Law Reform (Contributory Negligence) Act 1945 London Building Acts (Amendment) Act 1939 Public Health Act 1936 Law of Property Act 1925 Partnership Act 1890 Bristol Improvement Act 1847 Prescription Act 1832 Treaty of the Union 1707

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1 Outline of Law The Law as I see it has two great objects: to preserve order and to do justice; and the two do not always coincide. Those whose training lies towards order, put certainty before justice; whereas those whose training lies toward the redress of grievances, put justice before certainty. The right solution lies in keeping the proper balance between the two.1

What is law? The law is a body of enforceable rules comprising social, polit­ ical, moral and economic factors intended to maintain order and social control of society. There are different types of law including common, equity and statute law. Common law is the part of English law developed by judges, who make court decisions (case law) that are binding on lower courts and are known as ‘precedent’. Common law legal jurisdictions are widespread throughout the world in those countries formerly part of the British Empire and now forming the Commonwealth. The common law system is also used in the United States. Equity is the part of English law developed in the former Courts of Chancery and designed to mitigate the rigours of the common law. Since the Judicature Acts 1873–1875, the courts administer both common law and equitable principles, and, where there is a conflict between the rules of law and equity, the rules of equity should prevail. Statute law is the law enacted by the legislature in the form of Acts of Parliament. The common law system is noted for its flexibility. 1

 Lord Denning, cited in Wacks (2008), p. 22.

Architect’s Legal Pocket Book. © 2011 Matthew Cousins. Published by Elsevier Ltd. All rights reserved.

2   Architect’s Legal Pocket Book

Common law jurisdictions are to be contrasted with civil law jurisdictions, which are codified systems often based upon the Napoleonic Code and are prevalent in continental Europe, the former French colonies in Africa, and Latin America. Common law courts tend to follow an adversarial approach to litigation, whereas civil law courts usually adopt an inquisitorial system. In civil law jurisdictions less weight is given to precedent. Three basic principles underlying the British Constitution are the separation of powers, the supremacy of Parliament and the rule of law.

The separation of powers One of the fundamental principles underlying the British constitution is that of the separation of powers. According to the eighteenth-century French philosopher Montesquieu, this principle means that all state power can be divided into three types: Executive Legislative l Judicial l l

The executive represents the government, the police and civil servants; the legislative power is Parliament; and judicial authority is exercised by judges. The basis of Montesquieu’s theory was that these three types of power should not be concentrated in the hands of one person or group, since this would give that group absolute control.

The Supremacy of Parliament The Supremacy of Parliament is a central principle of the United Kingdom’s constitution, meaning that Parliament is the highest legislative body in the United Kingdom and may enact any law it sees fit. No person or body is recognised by

Outline of Law    3

the law of the United Kingdom as having a right to override or set aside the legislation of Parliament. Further information: Dicey (1959).

Judicial precedent Judicial precedent provides the basis for the development of legal rules, predictability, and a degree of certainty in the common law system. It is strongly coercive in its nature. In broad terms, judges are bound by rules of precedent, or stare decisis, to the system of case law in that they must have regard to earlier decisions made by superior courts on the same principles. A general rule of precedent is that the decision of a superior court binds all lower courts by its decisions. Some courts can bind themselves, for example the Court of Appeal binds those courts below it and itself. In the latter case, the judge must search to find the rule of law upon which the earl­ ier decision was based, called the ‘ratio decidendi’.

Divisions of law Common law Common law is unwritten law, which is derived from judicial precedent and custom. Common law is governed by the doctrine of ‘stare decisis’, which means that precedents are binding and must be followed. Under common law, new laws are created through the decisions made by judges. Common law incorporates elements of equity if other branches of the law cannot provide an adequate remedy.

Statute law Statute law refers to law that has been created by Parliament in the form of legislation.

4   Architect’s Legal Pocket Book

Private law Private law is the body of law that deals with disputes and the legal relationships between individuals that are of no direct concern to the state. Private law includes the law of tort, property and trusts, family law and the law of contract.

Public law Public law (also known as ‘administrative law’) is the body of law that deals with the state. It includes the exercise of powers and duties by public bodies arising under statute. It may include conflicts between the individual and the state. Public law includes the enforcement of building regulations by a local authority. See Figure 1.1.

Civil law Civil law is related to the rights, duties and obligations of individuals to each other to do with civil matters such as family, property, contract, commerce, partnerships, insurance, Law

Public Law

Private Law

Criminal Law

Contract

Constitutional and Administrative Law

Tort Land Law and Property Family Law

Figure 1.1  Public law and private law.

Outline of Law    5

copyright and the law of torts. This definition is to be contrasted with the civil law systems operating in civil law jurisdictions.

Criminal law Criminal law is the body of law that regulates criminal acts that are deemed by statute or the common law to be public wrongs and therefore punishable by the state in criminal proceedings. There are a number of situations where the conduct or action of an architect may result in criminal proceedings, including dishonesty and fraud. Architects and anyone involved in financial transactions also must take action in relation to knowledge of any criminal activity.

Equity Equity refers to the system of rules and principles developed by the former Courts of Chancery. Equity provides a measure of fairness, or natural justice, that is not always available under common law. Although equity and common law are implemented by the same courts, the two branches of the law are separate. Equity includes wide remedial principles that allow the courts to protect individuals from strict common law rules.

Legal systems in the United Kingdom There are three distinct legal jurisdictions in the United Kingdom and each has its own legal system: England and Wales Northern Ireland l Scotland l l

English law prevails in England and Wales. The basis of the legal system in Northern Ireland is English common law but it

6   Architect’s Legal Pocket Book

has its own law courts and its own statutory provisions. The Scottish legal system is entirely different from that in England and Wales and has its own courts and legal traditions, which were preserved under the Treaty of the Union in 1707.

Who makes the law? There are four predominant sources of the law within the English legal system: l l l l

Parliament The courts The European Union The Council of Europe

Overview of the system of government in the United Kingdom The United Kingdom is a parliamentary democracy with a constitutional monarch. A king or queen is the head of state, and a prime minister is the head of government.

The constitution The United Kingdom is unusual compared with other countries in that it does not have a single written constitution but an unwritten one. Rather than one formal document, the British constitution is formed from various sources including case law made by judges, statute law and international treaties. There are also some unwritten sources, including parliamentary conventions and royal prerogatives. Since 1997 the United Kingdom has been engaged in a process of constitutional reform and has witnessed unprecedented constitutional changes, including: Devolution to Scotland and Wales, under the Referendum (Scotland and Wales) Act 1997;

l

Outline of Law    7

The Scotland Act 1998, providing for a directly elected Scottish Parliament with a Scottish Executive responsible to it on devolved matters; l The Government of Wales Act 1998, providing a directly elected National Assembly in Wales; l The Northern Ireland Act 1998, providing for a referendum on a partnership form of government and devolution in Northern Ireland and the establishment of a directly elected Assembly in Northern Ireland; l A referendum under the Greater London Authority (Referendum) Act 1998, on a directly elected mayor and assembly in Northern Ireland; l The Local Government Act 2000, requiring local authorities to abandon the committee system and providing for the possibility of directly elected mayors following referendums; l The Human Rights Act 1998, requiring government and all other public bodies to comply with the provisions of the European Convention on Human Rights; l The Freedom of Information Act 2000, providing for a statutory right of access to government information; l The independence of the Bank of England from government in monetary policy (1997); l The Constitutional Reform Act 2005, providing for the Lord Chief Justice, rather than the Lord Chancellor, to become head of the judiciary and for the establishment of a new Supreme Court whose members, unlike the law lords, are members of the House of Lords.2 l

Acts of Parliament Acts of Parliament (also called ‘statutes’) contain the main laws made by Parliament acting in its legislative role. Until the statute (or Act) has passed through all its stages and received the royal assent, it is referred to as a ‘bill’, for example the Localism Bill 2010. 2

 Cited in Bogdanor (2009), pp. 4–5.

8   Architect’s Legal Pocket Book

Courts and Tribunals Figure 1.2 shows the hierarchy of the courts in England and Wales.

The Supreme Court The Supreme Court of the United Kingdom was established by the Constitutional Reform Act 2005 and replaced the House of Lords. The appellate jurisdiction of the former House of Lords and the jurisdiction of the Judicial Committee of the Privy Council were transferred to the Supreme Court. The Supreme Court is the final court of appeal for all United Kingdom civil Supreme Court

Court of Appeal Criminal Division

Civil Division

High Court Queen’s Bench Division Administrative Court

Crown Court

Family Division Divisional Court

Technology and Construction Court

Chancery Division Divisional Court

Adjudicator to HM Land Registry

Magistrates’ Court

Figure 1.2  Hierarchy of courts in England and Wales.

County Court

Tribunals (Including Upper Tribunal Lands Chamber and Employment Appeal Tribunal)

Outline of Law    9

cases and criminal cases in England, Wales and Northern Ireland. The Supreme Court was established to emphasise the independence of the Law Lords and increase the transparency between Parliament and the courts by achieving a separation between the Upper House of Parliament and the United Kingdom’s senior judges. Further information: http://www.supremecourt.gov.uk.

The Court of Appeal The Court of Appeal has two divisions: the Civil Division and the Criminal Division. It exercises an appellate function over all judgements and orders of the High Court and most determinations of judges of the county courts. Its decisions can be appealed with leave of the House of Lords. Following the enactment of the Constitutional Reform Act 2005, the President of the Criminal Division is the Lord Chief Justice, who is also head of the judiciary. The Court of Appeal is served by 37 senior judges, termed Lord Justices of Appeal. The most senior judge is the Master of the Rolls. Usually, three judges will sit to hear an appeal, although for very important cases five judges may sit. Further information: http://www.hmcourts-service.gov.uk/ cms/courtofappeal.htm.

The Privy Council The Privy Council is the highest court of appeal for a number of Commonwealth countries, the Channel Islands and the Isle of Man. The Judicial Committee is also responsible for considering devolution issues and hears appeals from medical and veterinary disciplinary bodies and certain ecclesiastical cases. Further information: http://www.privy-council.org.uk.

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The High Court The High Court of Justice functions both as a civil court of first instance and a criminal and civil appellate court for cases from lower courts. It consists of three divisions: The Queen’s Bench Division, which deals with general civil cases such as personal injury, medical negligence, libel and contract disputes. The Technology and Construction Court is one of the specialist courts in the Queen’s Bench Division of the High Court, along with the Divisional Court, Admiralty Court and Commercial Court; l The Chancery Division, which deals with company law cases, disputes involving the sale of land, the redemption or foreclosure of mortgages, company law and bankruptcy, partnerships trusts and trustees, wills and probate; l The Family Division, which deals with all matrimonial matters, divorce and children. l

High Court judges sit mainly in the High Court of Justice in the Strand, London; however, is possible for the High Court to sit anywhere in England or Wales. Further, the judges of the Queen’s Bench Division travel on circuit throughout England and Wales to hear cases. Further information: http://www.hmcourts-service.gov.uk.

The Technology and Construction Court The Technology and Construction Court (TCC) is a specialist court that deals with technology and construction disputes, including building, engineering and information-technology disputes; professional negligence claims; and nuisance. A significant part of the TCC’s work relates to adjudication. The TCC is based in London. Claims may also be brought in those county courts

Outline of Law    11

that are specified in the Civil Procedure Rules Part 60 Practice Direction,3 which are: Birmingham, Bristol, Cardiff, Chester, Exeter, Leeds, Liverpool, Newcastle, Nottingham and Manchester. Types of claim appropriate to the Technology and Construction Court Building or other construction disputes, including claims for the enforcement of the decisions of adjudicators under the Housing Grants, Construction and Regeneration Act 1996; l Engineering disputes; l Claims by and against engineers, architects, surveyors, accountants and other specialised advisers relating to the services they provide; l Claims by and against local authorities relating to their statutory duties concerning the development of land or the construction of buildings; l Claims relating to the design, supply and installation of computers, computer software and related network systems; l Claims relating to the quality of goods sold or hired, and work done, materials supplied or services rendered; l Claims between landlord and tenant for breach of a repairing covenant; l Claims between neighbours, owners and occupiers of land in cases of trespass, nuisance etc.; l Claims relating to the environment (e.g. pollution cases); l Claims arising out of fires; l Claims involving taking of accounts where these are complicated; l Challenges to decisions of arbitrators in construction and engineering disputes including applications for permission to appeal and appeals.3 l

Further information: Ministry of Justice (2010a); Ministry of Justice (2010b). 3

 Ministry of Justice (2010a).

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The Crown Court The Crown Court is a single court that has an unlimited jurisdiction over all criminal cases tried on indictment and also acts as a court for the hearing of appeals from magistrates’ courts. Crown Courts sit in 77 court centres across England and Wales and are designated into six circuits: l l l l l l

Midland (Birmingham, Nottingham) North-Eastern (Leeds, Newcastle upon Tyne, Sheffield) Northern (Liverpool, Manchester) South-Eastern (London, Norwich) Wales (Cardiff, Swansea) Western (Bristol, Exeter, Winchester)4

Further information: http://www.hmcourts-service.gov.uk.

County courts County courts are statutory courts with a purely civil jurisdiction. They are presided over by Circuit Judges and District Judges, and, except in a small minority of cases, the judge sits alone without assistance from a jury. County courts have divorce jurisdiction and undertake private family cases, care proceedings and adoption, together with contract and tort cases and land disputes, particularly possession proceedings by landlords and mortgagees. There are county courts in many towns throughout England and Wales. Further information: http://www.hmcourts-service.gov.uk.

Magistrates’ courts Magistrates’ courts exercise criminal and family proceedings. These courts also have the power to make personal protection orders and exclusion orders in cases of matrimonial violence. 4

 Ingman (2006), p. 30.