Construction Legal Studies - Essay Example

Construction Legal Studies A construction on site should be managed effectively in order to avoid possible issues and problems. This particular case demands even more management and organizational requirement during construction due to its controversial nature. Endeavour Tower, a modern five-story "block of flats" is to be erected amidst a house, gardens, and other historical attractions. A lovely home with a centuries' old garden and modern, glass-fronted building leaves many people already on edge. This is not the "typical" construction project involving only the vested parties but it also involves many others who are concerned about the project's degradation of England's historical, architectural, and traditional aspect, which is what makes England what it is known for. Hence, effective management of this type demands more than what is required for an ordinary on-site construction. In order to protect the interest, rights, and responsibilities of all parties involved, a building contract is necessary. This contract should list in specific details all the goals and terms that are pertinent to the project. There will be an extremely large amount of time, money, and even passion in such a project. Legal obligations require that a contract be drawn and should a dispute arise, the business contract will be used in the courts. It is in the best interest of all parties who will be involved in the construction project to develop, implement, and enforce the goals and guidelines set forth in a building contract. Such individuals include, but are not limited to, employers, architects, quantity surveyors, and contractors. Construction Legal Studies 2 The government has developed the Joints Contract Tribunal (JCT) forms and representatives RIBA, which covers a wide range of topics in the construction of a building. There are forms that assist all parties involved in determining the price cost, lump sum, agreements between employer and builder, the construction of streets, additional provisions, etc. These forms are very detailed and if followed, will make the project easier, more manageable, and more acceptable to all. This will result in fewer risks of liabilities. If the employer abides by the Standard Form of Contract and follows his/her duties as listed, he/she will find that all will be more efficient. The architect, Clerk of Works, and others are specialists in their specific field and know better how to perform these duties. Therefore, the employer does not have to take on these responsibilities, will not what to do and what not to do, and will also know what his/her rights are in the case that the contractor becomes bankrupt. Finally, the employer will be less liable should a situation arise. The Joints Contract Tribunal (JCT) forms lay out the architect's instructions and he must abide by the guidelines, which are set forth in Clause 4.1 of the form. To keep each other accountable, determinations by the employer and contractor are listed in complete details on Forms 27 and 28. The building contract should lay out all the roles, responsibilities, and rights of each and every employer and employee. The Architect's instructions should follow the guidelines as listed in the JCT. The same applies for Architects 1 and 2 as should also apply for Employers 1, 2, and 3. All has been presented and laid out in JCT and if Construction Legal Studies 3 followed precisely whilst adding specific details pertaining to the specific project and staff. Another avenue to take in order to insure that the on-site construction is managed effectively to avoid problems is be familiar with the occasions that require the issuance of a certificate. Legal Studies (2002) lists the matters that require certificates to be issued: a. Practical Completion of the Works. (17.1) b. On making good defects. (17.4) c. Damage by frost due to injury which took place before the practical completion of the works. (17.5) d. Partial possession by the employer. (18.1) e. If the works are not completed on time and ought reasonably to have been completed. (24.1) f. The contractor is in default of an instruction to provide proof of payment to a nominated subcontractor or supplier. (35.13.5.2) g. Interim payments to the contractor and nominated subcontractors and suppliers. (35.13.1, 30.1.1) h. The Final Certificate. (30.6) Designation of the materials, equipment, plants, temporary buildings and projects, supplies, design, space, etc. should be determined beforehand. Upon determination, it shall be discussed with all parties involved. Representatives of the community, employers, and builders should be present when all details of the construction project are discussed and decided upon. This will help to prevent Construction Legal Studies 4 problems and "surprises" before construction begins, which will insure peace of mind, assist in coming to a compromise, and to minimize possible liabilities. Being knowledgeable and well prepared is the best way to prevent problems and try to keep things running smoothly. However, as we all know, nothing in life is 100% guaranteed to go as planned. Clause 25 of the JCT form contains situations that may arise which will cause delays in following the building contract. By following the policies of this form, all parties will know that the architect should immediately receive written notice of the delay. The architect may offer an extension of time, or he/she may choose not to extend the time based on details listed in Clause 25.4. Payments due to delays, if applicable, should be listed in the building contract before starting the project. Discussing and weighing the pros and cons and advantages and disadvantages of constructing the modern building will help relieve fears and concerns. Doing the same for the historical building and gardens can help those who can only see the positive of the new building may help them to view the history, culture, and value of the features that have been there for years. Researching the ordinances set forth for historical preservations and the reasons why and learning more about the contributions of a new building which will provide more housing will help bridge the gap. A controversy arises when one side does not see from another's perspective. Focusing on what another sees as valuable, or not valuable, and the reasons why will help open up minds and bring understanding. Construction Legal Studies 5 Westwood (1996) quotes from "Salmond: Law of Torts" this definition of the word tort, "a civil wrong for which the remedy is a common law action for un- liquidated damages, and which is not exclusively the breach of contact or the breach of trust or other merely equitable obligation." According to Card, Murdoch, Schofield, tort can also be "a breach of legal duty owed, independent of contract, by one person to another, for which a common law action for un-liquidated damages may be brought." An example of this type of tort is to cause someone to fear physical violence. This is regarded as trespassing to a person and includes aiming a gun, whether real or not, at them, shaking your fist, and/or using words that are threatening. Trespass-battery is also considered as tort. In other words, if you intentionally and directly use force against under person, you are guilty of committing a civil wrong which will lead to a common law action. Negligence is a separate and independent tort. It is doing something, or failure to do something, without the consideration of the consequences caused to another individual, or individuals. Consider your neighbors, those who are nearby and will be affected by your acts or omissions. By considering all possible aspects, areas, and actions that you will be doing or not doing and by considering how it will affect those involved, you can avoid negligence, nuisance, and liabilities. The Noise and Statutory Nuisance Act 1993 (quoted according to Crown Copyright 1993, c. 40) states that "Noise in street to be a statutory nuisance noise Construction Legal Studies 6 that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street An order under subsection (1A) of this section shall not amend the times so as to permit the operation of a loudspeaker in a street at any time between the hours of nine in the evening and eight in the following morning" The best way to avoid charged of tort is to hire, work as, and act in a professional and skilled manner. Be sure that all employers and employees are skilled and able to perform in his/her area of specialty. In life most things require planning, especially a controversial on-site construction, which involves many people (with different points of views), a large amount of funds, and legal obligations. Planning is the blueprint that should be followed. Building a modern, glass building of many flats in the midst of a historical landmark in an area that is known for its art, history, and ancient architecture and gardens require that the environment is considered in the planning process. Social and cultural concerns are part of this planning with the environment in mind. Planning involves sustaining the current community. When designing the construction, all parties involved must consider the sense of place, the culture (multi- culture), and the strategies to provide adequate homes that are in tune with the current homes in the area. Legislations provides special controls over listed buildings and conservation Construction Legal Studies 7 areas. The Act of 1990 protects these conservation areas along with ancient monuments, listed buildings, historic parks and gardens, and adverts. Conservation areas must be regarded in the planning process. Such areas include areas of special architectural, or historical interest; quality of the townscape; enhancement; and the trees and flora. Other areas and features to protect and consider in the first-stages of the planning include the wildlife and countryside, green belts, areas of outstanding beauty, heritage parks, access to the countryside, etc. All parties should have a clear concept of the law and practice the law in order to respect the built environment. In conclusion, if the employer and his/her hired staff will use the guidelines set by the government in the JCT in all phases of the on-site construction project, they will better manage the huge task at hand. Using the JCT as a guide to build a plan, or blueprint, they should strive to foresee all issues that may arise and consider the concerns of the parties supporting the new construction and those who do not support it. They should consider the environment, history, and architectural aspects of the surroundings in which they are about to "impose" upon. After the plans, tasks, responsibilities, costs, deadlines, etc. are set, all parties involved, including representatives of the community who uphold the value of keeping the landmarks as is, should have a say in the proposed plan. Changes and revisions should be voted on. The quality of design should be an important topic as it was one of the major reasons the construction project was rejected in the first place. Communication is key. Each person involved has his/her special skills, talents, and knowledge and all can benefit. Construction Legal Studies 8 If the modern building plans are to continue, the employer and his/her staff can incorporate landscaping and designs that will tie into the natural and historical environment by replacing as many trees that they remove as possible. There are many examples of cities and construction projects that have kept the environment in mind. This does not have to be project of extremes. A compromise can be reached. Using materials that are environment-friendly, keeping equipment and materials within guidelines of the Acts mentioned, abiding by the law in regards to noise pollution and removal of wastes, destruction of existing landmarks, etc. will help prevent the destruction of the UK's history and heritage. If all participants can have a say, vote on the decisions, and "own" the project from its beginning/planning stages to the completion and long term maintenance, then all will be more satisfied as he/she were part of the entire process. With respect to all those who will be affected and with respect to the legal obligations of the construction firm, this can be a win-win situation. Construction Legal Studies 9 Bibliography Joints Contract Tribunal. (2002) Legal Studies BE208. Westwood, P. Noise and Statutory Nuisance Act 1993. (c. 40). Crown Copyright. Available from < http://www.opsi.gov.uk/acts/acts1993/Ukpga_19930040_en_1.htm> (Accessed 22 Dec. 2005). Salmond: Law of Torts. (2002) Legal Studies BE08. Westwood, P. Read More