ENBU820 Law for Construction Management Assignment - Remedies
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Homework Assignment
AI Summary
This assignment addresses several key aspects of construction law, beginning with a problem question on limitation and remedies. It examines a scenario where a cinema owner, Grant, seeks legal advice regarding construction defects discovered years after completion, analyzing potential claims under the Contract and Commercial Act 2017 and the Building Act 2004, considering limitation periods and relevant case law. The assignment further delves into health and safety regulations, defining the responsibilities of a PCBU (Person Conducting a Business or Undertaking) and the duties of workers and subcontractors under the Health and Safety at Work Act 2015. Finally, it explores the process of identifying and managing land contamination, outlining the steps for investigation, containment, and the potential liabilities under the Resource Management Act 1991. The assignment provides a comprehensive overview of legal issues in construction, providing a practical application of the legal principles.
Running head: LAWS OF INTERNATIONAL CONSTRUCTION
LAWS OF INTERNATIONAL CONSTRUCTION
Name of Student
Name of University
Author Note
LAWS OF INTERNATIONAL CONSTRUCTION
Name of Student
Name of University
Author Note
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1LAWS OF INTERNATIONAL CONSTRUCTION
Table of Contents
Answer 1a........................................................................................................................................2
Answer 2a........................................................................................................................................2
Answer 2b........................................................................................................................................3
Answer 2c........................................................................................................................................4
Answer 3a........................................................................................................................................4
Answer 3b........................................................................................................................................5
Answer 3c........................................................................................................................................7
Table of Contents
Answer 1a........................................................................................................................................2
Answer 2a........................................................................................................................................2
Answer 2b........................................................................................................................................3
Answer 2c........................................................................................................................................4
Answer 3a........................................................................................................................................4
Answer 3b........................................................................................................................................5
Answer 3c........................................................................................................................................7
2LAWS OF INTERNATIONAL CONSTRUCTION
Answer 1a
Grant can claim for damages for misrepresentations under section 35 of the
Contract and Commercial Act 2017. Section 35 of the Contract and Commercial Act
states that a party to contract is entitled to damages if the terms of the contract were
misrepresented either fraudulently or negligently (Legislation.govt.nz, 2017). There are
however certain limitation issues. These issues relate to the provisions of the Limitations
Act 2010 and the Building Act 2004. Section 393 (2) of the Building Act 2004 provides
for the limitation of 10 years from the act or omission of the proceedings within which
legal actions are needed to be commenced by way of filing claim or serving arbitration or
adjudication notice. In the Limitations Act 1950 the limitation period for the
commencement of filing legal claim is set for 6 years from the date of breach or 6 years
from the actual discovery of the negligence. In the case Mount Albert Borough Council v
Johnson [1979] it was stated by the court that a cause of action in negligence for building
defects happen when the damage of the building becomes apparent.
Answer 1b
In this case it can be seen that the building was completed on December 2011 and in
January 2012 a code compliance certificate was obtained from the Council on January 2012. In
March 2018 Grant was provided with a report from a building surveyor stating the depths of the
piles of the cinema were insufficient and not in compliance with the Building code. The
regulations of the Building Act 2004 contain the Building code. In New Zealand all the building
works need to be complying with the building code. A civil proceeding can be brought by Grant
Answer 1a
Grant can claim for damages for misrepresentations under section 35 of the
Contract and Commercial Act 2017. Section 35 of the Contract and Commercial Act
states that a party to contract is entitled to damages if the terms of the contract were
misrepresented either fraudulently or negligently (Legislation.govt.nz, 2017). There are
however certain limitation issues. These issues relate to the provisions of the Limitations
Act 2010 and the Building Act 2004. Section 393 (2) of the Building Act 2004 provides
for the limitation of 10 years from the act or omission of the proceedings within which
legal actions are needed to be commenced by way of filing claim or serving arbitration or
adjudication notice. In the Limitations Act 1950 the limitation period for the
commencement of filing legal claim is set for 6 years from the date of breach or 6 years
from the actual discovery of the negligence. In the case Mount Albert Borough Council v
Johnson [1979] it was stated by the court that a cause of action in negligence for building
defects happen when the damage of the building becomes apparent.
Answer 1b
In this case it can be seen that the building was completed on December 2011 and in
January 2012 a code compliance certificate was obtained from the Council on January 2012. In
March 2018 Grant was provided with a report from a building surveyor stating the depths of the
piles of the cinema were insufficient and not in compliance with the Building code. The
regulations of the Building Act 2004 contain the Building code. In New Zealand all the building
works need to be complying with the building code. A civil proceeding can be brought by Grant
3LAWS OF INTERNATIONAL CONSTRUCTION
in this situation against the Council under the section 391 of the Building Act 2004. Section 391
of the Act states that any civil proceeding against any building consent can be brought in tort and
not in contract for their performance of the statutory function of issuance of building consent or a
code compliance certificate.
There are however certain limitations against the claims against any building consent
authority. These limitations are mentioned under section 393 of the Building Act 2004. Under
the provisions of the Limitation Act 1950 no proceedings can be brought if the proceedings arise
from the building works in association with the design, construction, alteration, demolition or
removal of buildings, civil proceedings cn also be not brought after 10 years or more of the date
of act or omission of the base of the proceeding.
Answer 2a
A PCBU is defined under the section 17 of the Health and Safety at Work Act
2015 as a Person Conducting a Business or Undertaking. A PCBU can either be an
individual or an organization. The term business generally means an activity carried out
with an intention to make profit whereas the term undertaking can generally be described
as any non-commercial activity. Section 36 of the Health and Safety at Work Act 2015
provides the duties of a PCBU. The primary duty of care of a PCBU consists of ensuring
reasonably thee health and safety of the workers and other people. The primary duties of
care of a PCBU are as follows-
Ensuring the health and safety of the workers working under the PCBU while at
work
in this situation against the Council under the section 391 of the Building Act 2004. Section 391
of the Act states that any civil proceeding against any building consent can be brought in tort and
not in contract for their performance of the statutory function of issuance of building consent or a
code compliance certificate.
There are however certain limitations against the claims against any building consent
authority. These limitations are mentioned under section 393 of the Building Act 2004. Under
the provisions of the Limitation Act 1950 no proceedings can be brought if the proceedings arise
from the building works in association with the design, construction, alteration, demolition or
removal of buildings, civil proceedings cn also be not brought after 10 years or more of the date
of act or omission of the base of the proceeding.
Answer 2a
A PCBU is defined under the section 17 of the Health and Safety at Work Act
2015 as a Person Conducting a Business or Undertaking. A PCBU can either be an
individual or an organization. The term business generally means an activity carried out
with an intention to make profit whereas the term undertaking can generally be described
as any non-commercial activity. Section 36 of the Health and Safety at Work Act 2015
provides the duties of a PCBU. The primary duty of care of a PCBU consists of ensuring
reasonably thee health and safety of the workers and other people. The primary duties of
care of a PCBU are as follows-
Ensuring the health and safety of the workers working under the PCBU while at
work
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4LAWS OF INTERNATIONAL CONSTRUCTION
Ensuring the health and safety of the workers whose work activities are being
directed or influenced by PCBU
Ensuring that by the work of the PCBU any other person is not put at risk.
A self-employed person who is a PCBU should also ensure their own safety.
The primary duty of care of a PCBU further includes-
Provide and maintain a work environment without risk of health and safety
Provide and maintain safe work system
Ensure the safe use, handling and storage of plants, structures and substances.
Provide adequate welfare facilities for the workers and ensure access to those
facilities
Monitor health of workers and the condition of the workplace to prevent injury or
illness of the workers (WorkSafeZealand, 2019).
Answer 2b
Workers can be described under the Health and Safety at Work Act 2015 employees,
contractors, subcontractors, trainees and people with work experience. Section 45 of the Act
states the duties of workers in a workplace. The duties are-
Take reasonable care for their own safety
Take reasonable care that their acts or omissions do not adversely affect health and safety
of others
Comply with reasonable instructions given by the PCBU in compliance with the Act
Ensuring the health and safety of the workers whose work activities are being
directed or influenced by PCBU
Ensuring that by the work of the PCBU any other person is not put at risk.
A self-employed person who is a PCBU should also ensure their own safety.
The primary duty of care of a PCBU further includes-
Provide and maintain a work environment without risk of health and safety
Provide and maintain safe work system
Ensure the safe use, handling and storage of plants, structures and substances.
Provide adequate welfare facilities for the workers and ensure access to those
facilities
Monitor health of workers and the condition of the workplace to prevent injury or
illness of the workers (WorkSafeZealand, 2019).
Answer 2b
Workers can be described under the Health and Safety at Work Act 2015 employees,
contractors, subcontractors, trainees and people with work experience. Section 45 of the Act
states the duties of workers in a workplace. The duties are-
Take reasonable care for their own safety
Take reasonable care that their acts or omissions do not adversely affect health and safety
of others
Comply with reasonable instructions given by the PCBU in compliance with the Act
5LAWS OF INTERNATIONAL CONSTRUCTION
Co-operate with reasonable policy or procedure of the PCBU relating to health and safety
at workplace (Legislation.govt.nz, 2019)
The PCBUs further have two duties towards their engagements with the workers enabling
them to health and safety participation. These duties are-
Ensuring the views of worker relating to health and safety matters have been asked
for and has been taken into consideration.
Having clear and effective ways to suggest workers for improvements and for raising
day-to-day concerns.
Answer 2c
A subcontractor may be defined as a person or a company hired by a contract for the
performance of a specific task. The general duties of a sub-contractor can be found in the section
45 of the Health and Safety at Work Act 2015 as-
Taking reasonable care for their own safety
Taking reasonable care that their acts or omissions do not adversely affect health and
safety of others
Complying with reasonable instructions given by the PCBU in compliance with the Act
Co-operating with reasonable policy or procedure of the PCBU relating to health and
safety at workplace.
The primary duty of care of a PCBU in respect of the subcontractor further includes-
It must be ensured that the subcontractors views on the matters of health and
safety are asked for and taken into consideration
Co-operate with reasonable policy or procedure of the PCBU relating to health and safety
at workplace (Legislation.govt.nz, 2019)
The PCBUs further have two duties towards their engagements with the workers enabling
them to health and safety participation. These duties are-
Ensuring the views of worker relating to health and safety matters have been asked
for and has been taken into consideration.
Having clear and effective ways to suggest workers for improvements and for raising
day-to-day concerns.
Answer 2c
A subcontractor may be defined as a person or a company hired by a contract for the
performance of a specific task. The general duties of a sub-contractor can be found in the section
45 of the Health and Safety at Work Act 2015 as-
Taking reasonable care for their own safety
Taking reasonable care that their acts or omissions do not adversely affect health and
safety of others
Complying with reasonable instructions given by the PCBU in compliance with the Act
Co-operating with reasonable policy or procedure of the PCBU relating to health and
safety at workplace.
The primary duty of care of a PCBU in respect of the subcontractor further includes-
It must be ensured that the subcontractors views on the matters of health and
safety are asked for and taken into consideration
6LAWS OF INTERNATIONAL CONSTRUCTION
Suggesting in clear, effective and on-going ways for improvements to the
subcontractors or for raising concerns on day-to-day basis.
Answer 3a
There are certain steps to be taken for the verification of the potentiality of the
contamination of the land. If it is suspected that there is a possibility of contamination in a land
at first the regional council should be contacted for advice on the possible measures that can be
taken. On the recommendation of the regional council an experienced contaminated land
consultant or an environmental consultant should be appointed for conducting an investigation
on the property. If the acceptable levels of the concentration of hazardous substances are
exceeded in the initial site investigation then remediation of the site should be done with proper
discussion with the consultant and regional council.
Before appointing a consultant there are some initial steps that can be taken to find out
whether the land needs to be investigated for contamination. These steps include-
Checking for the physical signs that are mostly associated with contamination like stains,
odors or presence of storage tanks.
Checking for the current and historical land uses and activities described in the HAIL list.
Obtaining a Land Information Memorandum (LIM) or Project Information Memorandum
(PIM) for the property from the local district or city council.
Checking for additional information of the land not included in the LIM or PIM in the
property files of the local councils and in the registers of regional councils.
Determining the nature of the land by talking to the previous owners and neighbours.
Finding old aerial photographs to identify former sheep dip sites (Mfe.govt.nz, 2019).
Suggesting in clear, effective and on-going ways for improvements to the
subcontractors or for raising concerns on day-to-day basis.
Answer 3a
There are certain steps to be taken for the verification of the potentiality of the
contamination of the land. If it is suspected that there is a possibility of contamination in a land
at first the regional council should be contacted for advice on the possible measures that can be
taken. On the recommendation of the regional council an experienced contaminated land
consultant or an environmental consultant should be appointed for conducting an investigation
on the property. If the acceptable levels of the concentration of hazardous substances are
exceeded in the initial site investigation then remediation of the site should be done with proper
discussion with the consultant and regional council.
Before appointing a consultant there are some initial steps that can be taken to find out
whether the land needs to be investigated for contamination. These steps include-
Checking for the physical signs that are mostly associated with contamination like stains,
odors or presence of storage tanks.
Checking for the current and historical land uses and activities described in the HAIL list.
Obtaining a Land Information Memorandum (LIM) or Project Information Memorandum
(PIM) for the property from the local district or city council.
Checking for additional information of the land not included in the LIM or PIM in the
property files of the local councils and in the registers of regional councils.
Determining the nature of the land by talking to the previous owners and neighbours.
Finding old aerial photographs to identify former sheep dip sites (Mfe.govt.nz, 2019).
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7LAWS OF INTERNATIONAL CONSTRUCTION
Answer 3b
In the case if the site is verified as being potentially contaminated MCL might need to
take certain steps for the containment of the contamination of the land under the Resource
Management (National Environmental Standard for Assessing and Managing Contaminants in
Soil to Protect Human Health) Regulations 2011. Although containment of contaminated site is
an effective option yet it may require monitoring for a long term. For contamination of soils at a
petroleum site the containment options that are available are dust control, vertical barriers and
concrete or asphalt capping. The options for groundwater containment include maintenance of
hydraulic control through groundwater extraction.
Dust control measures can be used for the potential limitation of the migration of the
fugitive dust off site. This is done by spraying the contaminated area with water, covering
the area with plastic sheet of high density or by the application of dust suppressant.
Vertical barriers or cut-off walls are used for the prevention of horizontal migration of
soil or groundwater contamination.
For the isolation of the contaminated soil from potential receptors a petroleum
contaminated site is capped. Capping limits the downward migration of petroleum
hydrocarbons in the soil and the upward migration of the vapor.
For the containment of migration of contaminated plume to the groundwater various
hydraulic controls are designed. The containment of contaminated plume typically
consists of the options of strategically placing numerous extraction wells either within the
plume or near the leading edge (Mfe.govt.nz, 2019).
Apart from the above mentioned steps for the containment of the contamination of the site
there are certain activities that can be undertaken on the land. These steps are-
Answer 3b
In the case if the site is verified as being potentially contaminated MCL might need to
take certain steps for the containment of the contamination of the land under the Resource
Management (National Environmental Standard for Assessing and Managing Contaminants in
Soil to Protect Human Health) Regulations 2011. Although containment of contaminated site is
an effective option yet it may require monitoring for a long term. For contamination of soils at a
petroleum site the containment options that are available are dust control, vertical barriers and
concrete or asphalt capping. The options for groundwater containment include maintenance of
hydraulic control through groundwater extraction.
Dust control measures can be used for the potential limitation of the migration of the
fugitive dust off site. This is done by spraying the contaminated area with water, covering
the area with plastic sheet of high density or by the application of dust suppressant.
Vertical barriers or cut-off walls are used for the prevention of horizontal migration of
soil or groundwater contamination.
For the isolation of the contaminated soil from potential receptors a petroleum
contaminated site is capped. Capping limits the downward migration of petroleum
hydrocarbons in the soil and the upward migration of the vapor.
For the containment of migration of contaminated plume to the groundwater various
hydraulic controls are designed. The containment of contaminated plume typically
consists of the options of strategically placing numerous extraction wells either within the
plume or near the leading edge (Mfe.govt.nz, 2019).
Apart from the above mentioned steps for the containment of the contamination of the site
there are certain activities that can be undertaken on the land. These steps are-
8LAWS OF INTERNATIONAL CONSTRUCTION
Removing or replacing fuel storage system
Soil sampling
Soil distribution
Sub-division of the land
Changing the use of the land
Answer 3c
If the site is found to be potentially contaminated and Mystery Constructions Ltd fails to
take any action in containment of the contamination they could be held liable under the
provisions of the Resource Management Act 1991. Under the Resource Management Act several
options are available to the councils for imposing liabilities.
For minor cases of pollution like the contamination of air, water or land councils can
issue infringement notices which result in low level fines
For imposing liabilities for the cleanup of the contaminated land the council can issue
abatement notices and enforcement orders that has been issued by the Environment
Court in compliance of the Resource Management Act
For serious breaches of the RMA the pollutant can be prosecuted for criminal offence
under the Resource Management Act
Penalties including maximum 2 years of imprisonment or a fine of maximum of $300,000
for a person and maximum $600,000 for a company can be imposed for the breach of
abatement notices or enforcement orders or for the failure of payment of infringement
fines (Environmentguide.org.nz, 2019).
Removing or replacing fuel storage system
Soil sampling
Soil distribution
Sub-division of the land
Changing the use of the land
Answer 3c
If the site is found to be potentially contaminated and Mystery Constructions Ltd fails to
take any action in containment of the contamination they could be held liable under the
provisions of the Resource Management Act 1991. Under the Resource Management Act several
options are available to the councils for imposing liabilities.
For minor cases of pollution like the contamination of air, water or land councils can
issue infringement notices which result in low level fines
For imposing liabilities for the cleanup of the contaminated land the council can issue
abatement notices and enforcement orders that has been issued by the Environment
Court in compliance of the Resource Management Act
For serious breaches of the RMA the pollutant can be prosecuted for criminal offence
under the Resource Management Act
Penalties including maximum 2 years of imprisonment or a fine of maximum of $300,000
for a person and maximum $600,000 for a company can be imposed for the breach of
abatement notices or enforcement orders or for the failure of payment of infringement
fines (Environmentguide.org.nz, 2019).
9LAWS OF INTERNATIONAL CONSTRUCTION
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10LAWS OF INTERNATIONAL CONSTRUCTION
Building Act 2004
Contract and Commercial Act 2017
Environmentguide.org.nz. (2019). Contamination Liability • Environment Guide. Retrieved from
http://www.environmentguide.org.nz/activities/hazardous-waste-and-contaminated-land/
soil-contaminant-standards/contamination-liability/
Health and Safety at Work Act 2015
Legislation.govt.nz. (2017). Contract and Commercial Law Act 2017 No 5 (as at 14 July 2017),
Public Act 35 Damages for misrepresentation – New Zealand Legislation. Retrieved from
http://www.legislation.govt.nz/act/public/2017/0005/21.0/DLM6844098.html
Legislation.govt.nz. (2019). Health and Safety at Work Act 2015 No 70 (as at 01 October 2018),
Public Act 45 Duties of workers – New Zealand Legislation. Retrieved from
http://www.legislation.govt.nz/act/public/2015/0070/55.0/DLM5976914.html
Limitations Act 2010
Mfe.govt.nz. (2019). How to find out and what to do if land is contaminated | Ministry for the
Environment. Retrieved from https://www.mfe.govt.nz/land/risks-contaminated-land/my-
land-contaminated/how-find-out-and-what-do-if-land-contaminated
Mfe.govt.nz. (2019). Retrieved from
https://www.mfe.govt.nz/sites/default/files/publications/hazards/oil-guide-jun99/module-
7.pdf
Mount Albert Borough Council v Johnson [1979] 2 NZLR 234
Building Act 2004
Contract and Commercial Act 2017
Environmentguide.org.nz. (2019). Contamination Liability • Environment Guide. Retrieved from
http://www.environmentguide.org.nz/activities/hazardous-waste-and-contaminated-land/
soil-contaminant-standards/contamination-liability/
Health and Safety at Work Act 2015
Legislation.govt.nz. (2017). Contract and Commercial Law Act 2017 No 5 (as at 14 July 2017),
Public Act 35 Damages for misrepresentation – New Zealand Legislation. Retrieved from
http://www.legislation.govt.nz/act/public/2017/0005/21.0/DLM6844098.html
Legislation.govt.nz. (2019). Health and Safety at Work Act 2015 No 70 (as at 01 October 2018),
Public Act 45 Duties of workers – New Zealand Legislation. Retrieved from
http://www.legislation.govt.nz/act/public/2015/0070/55.0/DLM5976914.html
Limitations Act 2010
Mfe.govt.nz. (2019). How to find out and what to do if land is contaminated | Ministry for the
Environment. Retrieved from https://www.mfe.govt.nz/land/risks-contaminated-land/my-
land-contaminated/how-find-out-and-what-do-if-land-contaminated
Mfe.govt.nz. (2019). Retrieved from
https://www.mfe.govt.nz/sites/default/files/publications/hazards/oil-guide-jun99/module-
7.pdf
Mount Albert Borough Council v Johnson [1979] 2 NZLR 234
11LAWS OF INTERNATIONAL CONSTRUCTION
Resource Management (National Environmental Standard for Assessing and Managing
Contaminants in Soil to Protect Human Health) Regulations 2011
Resource Management Act 1991
WorkSafeZealand, "Introduction To The Health And Safety At Work Act 2015 – Special
Guide", Worksafe (Webpage, 2019) https://worksafe.govt.nz/managing-health-and-
safety/getting-started/introduction-hswa-special-guide/#lf-doc-22882
Resource Management (National Environmental Standard for Assessing and Managing
Contaminants in Soil to Protect Human Health) Regulations 2011
Resource Management Act 1991
WorkSafeZealand, "Introduction To The Health And Safety At Work Act 2015 – Special
Guide", Worksafe (Webpage, 2019) https://worksafe.govt.nz/managing-health-and-
safety/getting-started/introduction-hswa-special-guide/#lf-doc-22882
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