Professional Advice for NDL Issues: Defective Work, Trespassing Crane, and Teenage Parties

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EE0722- Law for the Built Environment
Coursework Assignment
Professional Advice for NDL
Issues 1, 2 and 3
Word Count- 2886 Words
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EE 0722 - Law for the Built Environment
1.0 lntroduct·ion
Northumbria Developments limited are a development company that currently own a portion of
land in Newcastle 1in which hey have devised a three phase scheme of Student accommodation
blocks. Phase 1 is under contract with Olipper Pic as the main contractor and is nearing completion
and work has y ·et to commence on phases 2 and 3. NDl have encountered a number of issues
with the deve!lopment and have requested professional advice.
2.0 Defective Work • Issue 1
.2.1 Issue Introduction
NDl have stated that Clipper Pic have installed windows that are not to the correct
specification as oudined in the contract documents . It coutd be seen that Clipper Pic
are at fault for his issue as, 'where any party fails without lawful excuse to perfonn
fully and exactly .a contractual obligation, that party is guilty of a breach of contracr
(Hughes,
Champion, and Murdoch, 2015 p.157) thus liable under the law of contract. Clipper Pic
have installed white window frames instead of black frames which is not in accordance with
the contract specification therefore this work can 'be deemed defective' (RIGS 2013 p.3).
RICS also state in their guidance note 'If, however; high quality red cfay tiles have been
used where the employer specified brown tiles, then that in law will be· a breach of
contract, and the work may be deemed defective.' (RJCS 2013 p.3
2.2 Major Facts / Issues
NDL and Clipper Pic are parties to a building contract described as 'an agreement made
between two or more persons which is binding in law, and is capabfe of being enforced
by those persons in court or other tribunals ' (Stone, ·p.9). A contract will often contain
an agreement of an ·offer and an acceptance . If eitherpaiiy breaches the provisions of the
contract for instance not installing the specified windoiNS ,then that party could be liable
under the law of contract. In construction contracts cases that reach litigation 'will usually
be heard in the Technology and Construction Court (TCC)' (Wevi/1, 2013 p.8)·. The
Technology and Construction Court Guide is a key area of legislatio 'that ovides
'straightforward , practical guidance on the conduct oflifigation in the CC' {HM Courts &
Tribunals Service, 2015). Due to the contract being for a sale of good uilding,
additional terms are covered by the Sale of Goods Act 1979.
2.3 Relevant legislation I Case law
The Housing Grants and Construction Regeneration Act 1996 applies to all building
contracts. The HGCRA 'lays down certain rules applicab.le only to construction contracts'
(Hughes, Champion, and Murdoch, 2015 p.133). Construction contra.cts often contain
clauses that state 'only work executed in accordance with the contract will entitle the
contractor to receive payment' .(Davison,Mullen, and Davison, 2008 p.275).
Under the HGCRA 'section 108 provides any party with the right to refer a dispute at
any time to adjudication ensuring that all construction contracts provide provisions for
adjudication.
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EE 0722 - Law for the Built Environment
Under the construction contract 'the employer does not have to pay the part of the
contract sum that comprises the amount included for worl< that is identified as being
defective. In most instances this will be a temporary measure pending replacement of the
defective work by the contractor.' (Davison, Mullen, and Davison, 2008 p275). This
outcome would be the most practical for both sides as the contractor is in breach of
contract law. This is backed up by the legislation in the Sale of goods act,1979 as
section 14 states that all 'goods supplied under the contract are of satisfactory
quality' which includes the 'appearance and finish' of these goods.
Under the contract the contractor 'is obliged to make good any defects which appear in the
defects rectification period ' (Knowles 2012 p309). The defects rectification period begins
at practical completion and can last usually a minimum of six months. The case of H W
Neville (Sunblest) Ltd v William Press and Son ltd [1981] established hat an employer is
entitled to claim from a contractor who neglects or refuses to make good defects in the
work the cost arising from having others undertake the WJri<' (Knov.4es 2012 p324).
In the case Ruxley Electronics and Construction Ltd v.Forsyth [1995] the contractor
installed a swimming pool that was 450mm shallower than specified. The House of
Lords refused that the contractor should re-build the pool and claimed the clients true
loss as being 'loss of pleasure and amenity, and awarded £2500 as damages ' (Hughes,
Champion, and Murdoch, 2015 p.333)
2.4 Application of the principles to the Issue
Under the contract NDL do not have pay the contractor for the defective window
frames until the issue has been rectified or an agreement has formed . Clipper Pic are
not entitled to payment as the window frames are not to the specification in the
contract documents . If Clipper Pic refuse to make good the window frames then NDL
would be in a situation where they could employ another contractor to complete the
works at the cost of Clipper Pic as in the Sunblest case. It must be noted however that
in the Rux/ey case the client was only entitled to their true loss however this could
be·hard to evaluate as it is not truly clear what NDL's tnue loss would be in this issue.
2.5 Conclusion
In summary it would be in the best interests for NDL to negotiate with Clipper Pic to try
and resolve the issue.If the issue cannot be resolved then it would be advisable for NDL
to take the dispute to adjudication as outlined in the contract. At adjudication it could be
expected that Clipper either rectify the defective work or pay for NDL to employ another
contractor to replace the window frames. It would be unlikely such an issue would
require
litigation due to the high costs and the fact that Clipper Pic have made the error. It could
be
concluded that NDL accept a damages payment from Clipper Pic to prevent the
case going to court.
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EE 0722 - Law for the Built Environment
3.0 Over sailing Tower Crane - Issue 5
3.1 Issue Introduction
NDL have infonned us that a neighbour to the site currently under development is
complaining about the jib of the tower crane being swung over his site. NDL must be
infonned that if this is true then they along with the contractor would be liable under the
law of Tort for trespass to land which 'isa tort concerned with the prevention of
interference with the possession of land.' (Finch and Fafinski, 2013 p155). Another tort
that NDL could be liable under is private nuisance. Due to the neighbour currently
opposing planning position it would be advised that NDL resolve the issue or prepare a
viable defence.
3.2 Major Issues I Facts
Trespass occurs when 'the claimant can show a direct and unjustifiable interference
with the claimanrs possession of/and'(Giliker and Beckwith, 2011). Land is defined in
the law and property act 1925 as 'land of any tenure, and mines and minerals ...
buildings or parts of buildings and other corporeal hereditaments; also ... incorporeal
hereditaments and an easement right privilege or benefit in over or derived from land '.
It is important to highlight that a landowner in effect owns the airspace,within
limits,above their land and a breach of this space is in effect trespass. A private
nuisance is 'the unreasonable use of man of his land to the detriment of his neighbour'
Miller v. Jackson {1977] and the trespass of a tower crane can constitute a private
nuisance if damages can be proved. It must also be noted that the only person
protected under tort is the owner or leaseholder of the land. The three ways in which a
defendant can trespass upon a claimants land are if the defendant has a
licence/consent , the trespass is a necessity or if the defendant was legally authorised
to trespass.
3.3 Relevant Legislation I Case Law
The limits of trespass over air space can be detennined by the case Anchor Brewhouse
Developments Ltd v Berkeley House (Docklands Developments) Ltd {1987] where an
injunction was granted to stop the developer's cranes and the case Bernstein v.Skyviews
& General LTO [1978] where the defendants were not liable for taking overhead
photographs using a plane many hundreds of meters above ground. The Civil aviation act
1982 highlights that trespass and nuisance does not occur 'at a height above the ground
which, having regard to wind, weather and all the circumstances of the case is reasonable
'
therefore it could be seen that all trespasses below this lleight are in breach of tort - 1'l'
Itis important to mention that the contractor must not be held o ransom'(Phoenix,
2009) by the landowner as the case Woollerton and Wilson v Richard Costain
[1970]where the claimant was offered a significant sum for a licence to over sail with a
crane but refused the licence. The claimant had been granted an injunction where the
defendant had to cease using the crane but this was suspended until the defendants'
works were complete due to the claimant 'prejudicing his rights to an injunction '
(Phoenix, 2009) by not accepting the sum of money offered for the licence.
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EE 0722 - Law for the Built Environment
3.4 Applic ation of the principles to the Issue
In the light of NDL's position the only way they could trespass,i.e. over sail the claimants
land,is if they received a licence from the land owner in question. In order to receive this
licence it is likely that Clipper Pic or NDL would have to pay a fee to the land owner but it
is imperative that they are not held to ransom over this licence as in the Wollerton case.
The cost of a licence is not an easy item to quantify however in the case LJP Investments
v Howard Chia Investments [1991) 'it was necessaty to measure the damages for trespass
to air space by scaffolding ' (Horsey and Rackley, 2015 p415). The judge in this case ruled
that 'a relevant factor would be the extra cost the defendant would incur if not able to
gain access to the claimant's air space' (Horsey and Rackley, 2015 p415) .
If construction carries on without obtaining a licence to over sail then NDL or Clipper
would be liable for trespass as in the case Anchor Brewhouse Developments Ltd v
Ber*eley House (Docklands Developments) Ltd [1987] where the defendant continued
works when the claimant refused the access of a tower crane over hiis land. The judge
ruled in favour of the claimant as 'a crane which passes its boom over private land
without permission creates an actionable nuisance' (Swarbrick,2014) regardless of
whether damages could be proved.This case highlights that permission must be
granted before an act of trespass can occur even if no clear damages are proved.
3.5 Conclusion
Itmust be made clear that NDL and Clipper Pic are trespassing the air space of the
neighbour and are liable under the law of tort under trespass. As a result of this the
contractor should seek alternative methodologies to construct the building without
intruding on the air space of the neighbour. If this is not financially viable it would
be advised to negotiate with the neighbour to see if access can be granted either
for a sum of money or maybe even an advertising space could be allocated for the
neighbour on the crane taking into account any legal issues with this.In the unfortunate
event the neighbour refuses a licence and seeks an injunction then NDL should be
aware that an injunction can be refused as in the case Woofferton and Wilson v
Richard Costain [1970]. NDL must also be aware that damages may be awarded to the
neighbour as a result of the trespass and these costs may be in line with the extra
costs NDL would incur if they were not able to gain access to the neighbouring site.
It would be advised that NDL contact any neighbouring site owners in future and
negotiate a deal that will provide them with access to their land before construction
commences to prevent future issues over trespassing .
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EE 0722 - Law for the Built Environment
4.0 Teenage !Parties in NDL's DereUct Warehouses -Issue 2
4.1 Issue Introduction
NDL have informed us that they are aware of teenage parties occurring in the derelict
warehouses on their land and they are wary of the risk of claims against them if anyone is
1injured. The area of law this concerns is the law of tort and occupiers liability. The
Occupier's Liability Act 1984 is a key piece of legislation that extended the law to· protect
non visitors however 1it does state 'an occupier may be fiable for injuries only and not
damage to properly'. In Railways Board v. Herrington [1972jthe House of Lords declared
the defendants liable due to the fact that 'occupiers owed a duty of common humanity
trespassers' (Giliker and Beckwith, 2011 p256). This case highlighted that further
legislation was required prompting the release of the Occupier's Liability Act 11 984 (OLA
1984).
4.2 Major Issues I Facts
The problems arising from the iissue is the potential cl'aim arising from injury to a non
visitor i.e. trespasser on NDL's,the occupier's, land due to NDL's lack of reasonable care
to protect them from personal injury.The claimant in this case would be an injured
teenager who could argue that NDL, as the occupier , had a duty to protect them under
the OLA 1984. The definition of trespasser is highlighted inthe case Robert Addie & Sons
Ltd v .Dumbreck (1929] as 'someone who goes on the land without invitation of any sort
and whose presence is either unknown to the proprietor or, if known is practically objected
to' (Finch,E. and Fafinski, S. 2013 p.113). It can be determined from the case Wheat v. E.
Lacon & Co Ltd that an occupier is 'a person who exercises an element of control over
premises' (Finch, E. and Fafinski,S. 2013 p.104). NDl's defence would be to counter
claim for contributory negligence if sufficient evidence concludes that the claimant had
failed t-o take reasonable care for their own safety under the Law Reform (Conbibutory
Negligence) Act 1945.
4.3 Relevant Legislation I Case Law
TheOlA 1984 states that the 'occupier owes a duty of care if he knows of a danger on
the land,·and he knows or has reasonable grounds to believe that the person is in the
vicinity of that danger; and he should be reasonably expected to offer that person some
protection from i ·• ssentially means that if an occupier knows of a danger it i1s
simply not
enoug , o place a sign but instead a fence or preventive barrier.It must be also
highlighted that the OLA 1984 states 'no duty is owed by virtue of this section to any person
in respect of risks willingly accepted as his by that person '.The case Tomlinson v.
Congleton [2004] reinforc-es the OLA 1984 where the claimant was injured when he
trespassed by diving into a pond at a country park after ignoring the warning signs. The
court refused compensation as he had knowingly dived into the pond thus held liable under
his own contributory negligence. Railways Board v. Herrington {1972] is a case where a
boy climbed through a gap in the fence and was injured by the electrified railway. The
defendants had been
aware of the gap and that children were using it as a shortcut but had made no effort to
prevent 1its use. The defendants were liable as they did not perform their duty in
protecting the claimant from injury when aware of the dange .
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EE 0722 - Law for the Built Environment
Matthew Smith -W15039211
4.4 Applic ation of the principles to the Issue
The highlighted principles illustrate that NDL have a duty of care to provide the
teenagers with protection from the dangers that occur while using the derelict buildings
for parties. TheOLA 1984protects the teenagers in law as NDL know of the dangers
the derelict building presents and are aware of the teenagers 'use of these buildings
thus knowing of their duty of care. This is further justified .,.,;th the Hemngton case as the
railway board were aware of the danger and did not act and as a result were liable.
NDL could construct a barrier preventing entry to the warehouses and use appropriate
signage as in the Tomlinson case. This would allow NDL to counter any cllaim by
proving that they are following the legislation of the OLA 1984 and providing 'some
protection ' for the teenagers. If the teenagers ignored the sign and the barriers then
they would be accepting the risks associated with trespassing into the derelict
buildings. If NDL did not take any action and ignored the trespasses then they could
find themselves in a situation where an injured teenager would be able to sue NDL as
in the Hemngton case.
4.5 Conclusion
NDL should be recommended to ensure that the derelict building is made inaccessible
to the teenagers .A reasonable barrier or fence could be constructed along v.ith signs
highlighting the dangers that present themselves within the site. This should cover NDL
under the OLA 1984 and the relevant cases discussed and provide a good defence if a
case is brought to the courts. As things stand NDL would be at risk of claims if anyone
is injured on the property under the law of tort by occupier's liability.
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EE 0722 - Law for the Built Environment
References
1. Pinsent Masons (2012) Defective work in construction projects. Available at:
http://www.out-law.com/en/topics/projects--construction/construction-claims/defective-work in-
construction-projects/ (Accessed: 9 January 2016).
2. RIGS (2012). Conflict avoidance and dispute resolution in construction. (Online] Available
at http://www.joinricsineurope.eu/uploads/files/Part3RICSContlictavoidanceanddisputeresoluti
oninconstructionBiackBook.pdf (Accessed: 9 J tra114 2016).
3. Hughes,W., Champion, R. and Murdoch, J. (2015ftonstruction contracts: Law and
management. 5th edn. United Kingdom: Routledge.
4. RICS (2013) Defects and rectifications RIGS guidance note,England and Wales. 1st edn.
United Kingdom: RIGS.
5. Stone,G. (2010) Architecfs legal handbook: The law for architects. Edited by Anthony
Speaight. 9th edn. Amsterdam: Architectura l Press/Elsevier.
6. Wevill, J. (2013) Law in practice: The RIBA legal handbook. 2nd edn. United
Kingdom: RIBA Enterprises.
7. Davison,R. P.,Mullen, J. and Daviso n, P.R. (2008) Evaluating contract claims. 2nd edn.
United Kingdom: Wiley-Blackwell (an imprint of John Wiley & Sons Ltd).
8. HM Courts & Tribunals Service,2015 The technology and construction court guide
Second edition issued 3rd October 2005, third revision with effect from 3 march 2014,
c. Available at: https://www.justice.gov.ukldownloads/courts/tech-courtltec-con-court
guide.pdf (Accessed: 10 January 2016).
9. Sale of goods act 1979, c. Availab le at: http://www.legislation.gov.uklukpga/1979/54
(Accessed:10 January 2016).
10. Knowles,R. J.(2012) 200 contractual problems and their solutions. 3rd edn. Ames,lA:
Wiley-Blackwell (an imprint of John Wiley & Sons Ltd).
11. Finch, E.and Faflnski, S. (2013) Tort law. 4th edn. Harlow: Pearson Education.
12. Phoenix,L. (2009). The legal issues relating to cranes . Available at:
http://www.crippslink.com/index .php?option=com_ content&view=article&i d=743 :the-
legal issues-relating-to-cranes&catid= 14:construction-law-pub lications&ltemid=487
(Accessed: 15 January 2016).
13. Giliker ,P. and Beckwith,S. (2011) Tort (textbook). 4th edn. London: Sweet & Maxwell.
14. Law of property act 1925,c. Availab le at: http://www.legislation
.gov.uklukpga/Geo5/15- 16/20/section/205 (Accessed : 15 January 2016).
15. Civil aviation act 1982,c.Available at:
http://www.legislation.gov.uk/ukpga/ 1982116/section/76 (Accessed: 15 January 2016).
16. Horsey,K. and Rackley,E. (2015) Kidner's casebook on torts. 13th edn. United Kingdom:
Oxford University Press.
17. Occupier's liability act 1984,c. Available at:
http://www.legislation .gov.uk/ukpga/1984/3/contents (Accessed: 16 January 2016).
18. Swarbrick ,D.(2014) Swarb,case law,UK law. Available at:
http://swarb.co.ukllisc/Nuisn19851989.php (Accessed: 17 January 2016).
19. Hughes,W., Champion, R. and Murdoch, J. (2015) Construction contracts: Law and
management. 5th edn.United Kingdom: Routledge.
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GRADEMARK REPORT
FINAL GRADE
73 /0
GENERAL COMMENTS
Instructor
Clear intro ductio n o f the issues and f ramewo
rk f o r the advice
6/10
Yo ur o verall structure was lo gical but yo ur repo
rt lacked a co nclusio n.
Analysis o f the pro blems (f o r the three issues)
and identif icatio n o f the relevant legal principles
18/20
T his was generally go o d - yo u clearly understo o
d the pro blems the client was f acing and identif
ied
the relevant law
Explanatio n o f the key legal principles
applicable to the scenario s including ref erence
to relevant case law and legislatio n
34 /50
T his is a well researched submissio n and yo u
have demo nstrated a go o d understanding o f
the law. Yo ur analysis wo uld have been impro
ved had yo u applied the rules as yo u went alo
ng, e.g. having o utlined the requirements f o r a
duty o f care to arise under OLA 1984 applied
them to
f acts then o utlined the duty etc. Also in
places yo u explained the case o r statute but
did no t clearly explain what the rule was.
Reco mmendatio ns abo ut what actio ns to
take next
8/10
Yo ur advice was generally very well tho
ught thro ugh.
Ref erencing, presentatio n and writing style
(including layo ut, use o f paragraphs, spelling
and grammar)
7 /10
Yo ur repo rt was generally well written, ref
erenced and presented. I wo uld suggest that yo u
try and beco me less reliant o n direct quo tatio ns
as they can have a negative impact o n the f lo w o

f yo ur

wo rk.
PAGE 1
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QM
Comment 1
I think yo ur repo rt wo uld be easier to read if yo u used f ewer direct quo tatio ns. Putting it
in yo ur o wn wo rds wo uld also pro vide mo re evidence o f yo ur understanding
Del.
Delete
Comment 2
it is no t legislatio n
Comment 3
no - it is primarily f o r the supply o f services
PAGE 3
PAGE 4
Comment 4
Yo u are no t really explaining the law just giving details o f statute and case law
PAGE 5
PAGE 6
QM
Comment 5
No t really relevant here - do es yo ur co lleague require the legal histo ry?
Apply
Apply rule to the f acts
Comment 6
pre- dates OLA 1984
PAGE 7
PAGE 8
Comment 7
Sho uld be in alphabetical o rder