Pub Date : 2013-11-10DOI: 10.1108/17561451311312801
B. Bogusz
Purpose – The purpose of this paper is to examine how public law regulates the relationship between private landowners and users of town and village greens. It explores the scope of the public law which permits the exercise of customary rights of recreation over private property, and considers the limits that exist within the current regulatory framework. In particular the paper explores how subsidiary considerations such as protection of the environment have become increasingly relevant to the disputes involving town and village greens.Design/methodology/approach – The analysis is based on a critical appraisal of recent judgments, academic literature and policy papers which address the regulation of town and village greens.Findings – The paper determines that the current regulatory framework fails to sufficiently protect landowners against opportunistic claims for registration of a town and village green. Specifically the paper identifies that gaps exist both in the substance of the statute and the judic...
{"title":"Regulating public/private interests in town and village greens","authors":"B. Bogusz","doi":"10.1108/17561451311312801","DOIUrl":"https://doi.org/10.1108/17561451311312801","url":null,"abstract":"Purpose – The purpose of this paper is to examine how public law regulates the relationship between private landowners and users of town and village greens. It explores the scope of the public law which permits the exercise of customary rights of recreation over private property, and considers the limits that exist within the current regulatory framework. In particular the paper explores how subsidiary considerations such as protection of the environment have become increasingly relevant to the disputes involving town and village greens.Design/methodology/approach – The analysis is based on a critical appraisal of recent judgments, academic literature and policy papers which address the regulation of town and village greens.Findings – The paper determines that the current regulatory framework fails to sufficiently protect landowners against opportunistic claims for registration of a town and village green. Specifically the paper identifies that gaps exist both in the substance of the statute and the judic...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126794594","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-11-10DOI: 10.1108/17561451311312829
Yseult Marique
Purpose – The purpose of this paper is to show that technical complexity in construction projects is intensified by complexity in public decision making. Public authorities need to build on the conflicting imperatives of fostering cooperation with their (potential) contractors and following strict procurement regulations to enhance competition.Design/methodology/approach – The paper uses a comparative analysis of the English and Belgian legal systems. The comparison is based on traditional legal analysis of the primary sources, cases and their scholarly comments. It is supplemented, when appropriate, by project management concepts.Findings – The analysis in the paper suggests that awarding authorities do not always resolve the conflict between cooperation and competition for themselves. There is a range of alternative techniques embedded in the legal system.Practical implications – The paper suggests that developing tools for successful construction processes requires perspectives building in both law and...
{"title":"Cooperation and competition in complex construction projects: Implementation of EU procurement rules in England and Belgium","authors":"Yseult Marique","doi":"10.1108/17561451311312829","DOIUrl":"https://doi.org/10.1108/17561451311312829","url":null,"abstract":"Purpose – The purpose of this paper is to show that technical complexity in construction projects is intensified by complexity in public decision making. Public authorities need to build on the conflicting imperatives of fostering cooperation with their (potential) contractors and following strict procurement regulations to enhance competition.Design/methodology/approach – The paper uses a comparative analysis of the English and Belgian legal systems. The comparison is based on traditional legal analysis of the primary sources, cases and their scholarly comments. It is supplemented, when appropriate, by project management concepts.Findings – The analysis in the paper suggests that awarding authorities do not always resolve the conflict between cooperation and competition for themselves. There is a range of alternative techniques embedded in the legal system.Practical implications – The paper suggests that developing tools for successful construction processes requires perspectives building in both law and...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133732730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-11-10DOI: 10.1108/17561451311312838
T. Eccles, J. Pointing
Purpose – The paper explores theories of regulation by examining their consistency and fit with the development of smart regulation, better regulation and self‐regulation. It achieves this through the use of two case studies. Building control is offered as an example of deregulation, the 1980s approach to “smart” regulation, whilst the Primary Authority scheme is provided as an example of current thinking. The paper develops an explanation of how these shifting regulatory architectures have generated current views of how to manage the issue of regulation and then proposes a framework to explain how professional and local authority regulation works and can be made to work better.Design/methodology/approach – Analytical, as a preliminary to testing theoretical constructs by further empirical research. The paper examines case studies to draw out the drivers for regulatory practice and then establishes a model from this as the basis for further work.Findings – The use of Giddens's concept of Late Modernity is...
{"title":"Smart regulation, shifting architectures and changes in governance","authors":"T. Eccles, J. Pointing","doi":"10.1108/17561451311312838","DOIUrl":"https://doi.org/10.1108/17561451311312838","url":null,"abstract":"Purpose – The paper explores theories of regulation by examining their consistency and fit with the development of smart regulation, better regulation and self‐regulation. It achieves this through the use of two case studies. Building control is offered as an example of deregulation, the 1980s approach to “smart” regulation, whilst the Primary Authority scheme is provided as an example of current thinking. The paper develops an explanation of how these shifting regulatory architectures have generated current views of how to manage the issue of regulation and then proposes a framework to explain how professional and local authority regulation works and can be made to work better.Design/methodology/approach – Analytical, as a preliminary to testing theoretical constructs by further empirical research. The paper examines case studies to draw out the drivers for regulatory practice and then establishes a model from this as the basis for further work.Findings – The use of Giddens's concept of Late Modernity is...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134268321","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-11-10DOI: 10.1108/IJLBE-04-2013-0011
T. Gibbons
Purpose – This paper applies existing theoretical models on management agreements for multi‐unit housing to a particular legislative provision and its application in a decided case. It then critiques that decision and makes recommendations for policymakers based on the application and scope of the provision. The paper aims to discuss these issues. Design/methodology/approach – A socio‐legal approach is taken, based on a case study of a statutory provision discussed in a decided case. Findings – This paper identifies new phenomena in relation to management agreements for multi‐unit housing and makes recommendations for policymakers based on the case study. These recommendations relate to the wording of similar statutory provisions and to developers' duties to future owners. Research limitations/implications – The case study is limited to a single legislative provision and single decided case, though some references are made to overseas jurisdictions. Practical implications – The findings will help guide policymakers in other jurisdictions. Originality/value – Through extending existing models relating to body corporate management agreements and “developer abuse” to a case study relating to legislative reform, this paper shows the usefulness and limitations of a particular type of reform. This will assist those applying existing models to other jurisdictions and also provide guidance for policymakers.
{"title":"Management agreements in multi‐unit housing developments: A case study in regulation and remedies","authors":"T. Gibbons","doi":"10.1108/IJLBE-04-2013-0011","DOIUrl":"https://doi.org/10.1108/IJLBE-04-2013-0011","url":null,"abstract":"Purpose \u0000 \u0000 \u0000 \u0000– This paper applies existing theoretical models on management agreements for multi‐unit housing to a particular legislative provision and its application in a decided case. It then critiques that decision and makes recommendations for policymakers based on the application and scope of the provision. The paper aims to discuss these issues. \u0000 \u0000 \u0000 \u0000 \u0000Design/methodology/approach \u0000 \u0000 \u0000 \u0000– A socio‐legal approach is taken, based on a case study of a statutory provision discussed in a decided case. \u0000 \u0000 \u0000 \u0000 \u0000Findings \u0000 \u0000 \u0000 \u0000– This paper identifies new phenomena in relation to management agreements for multi‐unit housing and makes recommendations for policymakers based on the case study. These recommendations relate to the wording of similar statutory provisions and to developers' duties to future owners. \u0000 \u0000 \u0000 \u0000 \u0000Research limitations/implications \u0000 \u0000 \u0000 \u0000– The case study is limited to a single legislative provision and single decided case, though some references are made to overseas jurisdictions. \u0000 \u0000 \u0000 \u0000 \u0000Practical implications \u0000 \u0000 \u0000 \u0000– The findings will help guide policymakers in other jurisdictions. \u0000 \u0000 \u0000 \u0000 \u0000Originality/value \u0000 \u0000 \u0000 \u0000– Through extending existing models relating to body corporate management agreements and “developer abuse” to a case study relating to legislative reform, this paper shows the usefulness and limitations of a particular type of reform. This will assist those applying existing models to other jurisdictions and also provide guidance for policymakers.","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"61 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132845140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-11-06DOI: 10.1108/IJLBE.2013.41105BAA.001
Padraic Kenna
{"title":"Contemporary housing issues in a changing world","authors":"Padraic Kenna","doi":"10.1108/IJLBE.2013.41105BAA.001","DOIUrl":"https://doi.org/10.1108/IJLBE.2013.41105BAA.001","url":null,"abstract":"","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134252105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-11-06DOI: 10.1108/IJLBE.2013.41105CAA.001
B. Mcadam
{"title":"Only the free can negotiate","authors":"B. Mcadam","doi":"10.1108/IJLBE.2013.41105CAA.001","DOIUrl":"https://doi.org/10.1108/IJLBE.2013.41105CAA.001","url":null,"abstract":"","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"97 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-11-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121016167","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2013-07-17DOI: 10.1108/17561451311312793
J. Heijden, E. Bueren
Purpose – The purpose of this paper is first, to gain insight into how the European member states have addressed the concept of sustainability in their building regulatory frameworks; and second, to gain insight in the effects of harmonization attempts of these frameworks by the European Commission (EC).Design/methodology/approach – Data on the member states' building regulatory regimes were gathered using a survey questionnaire. The survey questionnaire addressed over 60 different aspects of sustainable construction that may, in various ways, be regulated by the member states.Findings – The data obtained show mixed results. Some aspects of sustainable construction show far‐reaching homogeneity, whilst others do not. It appears that current EC directives have a positive effect on homogeneity of sustainable construction regulation throughout Europe. However, this does not provide a firm base to advise more directives, as these often appear a too resource‐intensive tool to achieve sustainable construction i...
{"title":"Regulating sustainable construction in Europe: An inquiry into the European Commission's harmonization attempts","authors":"J. Heijden, E. Bueren","doi":"10.1108/17561451311312793","DOIUrl":"https://doi.org/10.1108/17561451311312793","url":null,"abstract":"Purpose – The purpose of this paper is first, to gain insight into how the European member states have addressed the concept of sustainability in their building regulatory frameworks; and second, to gain insight in the effects of harmonization attempts of these frameworks by the European Commission (EC).Design/methodology/approach – Data on the member states' building regulatory regimes were gathered using a survey questionnaire. The survey questionnaire addressed over 60 different aspects of sustainable construction that may, in various ways, be regulated by the member states.Findings – The data obtained show mixed results. Some aspects of sustainable construction show far‐reaching homogeneity, whilst others do not. It appears that current EC directives have a positive effect on homogeneity of sustainable construction regulation throughout Europe. However, this does not provide a firm base to advise more directives, as these often appear a too resource‐intensive tool to achieve sustainable construction i...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127306421","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-09-28DOI: 10.1108/17561451211273374
C. D. Silva
Purpose – Teaching health and safety law to non‐lawyers can involve an unreceptive audience. The author works with prospective rural practice surveyors involved with the two highest risk working environments in the UK: construction and agriculture. Unlike construction, the agricultural industry has failed to reduce annual fatalities in the past quarter century and continues to account for around 20 percent of workplace deaths, whilst employing under two percent of the workforce. The purpose of this paper is to evaluate the effectiveness of teaching methods on both substantive learning and student attitudes.Design/methodology/approach – The methodology used is an iterative process of action research. The paper is introductory, reporting teaching approach and outline findings. Further data will be collected over forthcoming academic periods. The paper explores the use of court cases, as an introduction to studies, to pique student interest, enhance legal skills and, importantly, to attempt to influence beha...
{"title":"Health and safety: teaching law, educating for prevention","authors":"C. D. Silva","doi":"10.1108/17561451211273374","DOIUrl":"https://doi.org/10.1108/17561451211273374","url":null,"abstract":"Purpose – Teaching health and safety law to non‐lawyers can involve an unreceptive audience. The author works with prospective rural practice surveyors involved with the two highest risk working environments in the UK: construction and agriculture. Unlike construction, the agricultural industry has failed to reduce annual fatalities in the past quarter century and continues to account for around 20 percent of workplace deaths, whilst employing under two percent of the workforce. The purpose of this paper is to evaluate the effectiveness of teaching methods on both substantive learning and student attitudes.Design/methodology/approach – The methodology used is an iterative process of action research. The paper is introductory, reporting teaching approach and outline findings. Further data will be collected over forthcoming academic periods. The paper explores the use of court cases, as an introduction to studies, to pique student interest, enhance legal skills and, importantly, to attempt to influence beha...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"57 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114349590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-09-28DOI: 10.1108/17561451211273356
K. Palmer
Purpose – The purpose of this paper is to assess the legal liability of local authorities in New Zealand for the issue of building consents and inspection, in respect of domestic homes where the property proves to be faulty. A local authority may be liable for economic loss. The duty of care extends to the owners of multi‐unit dwellings, but not commercial buildings. A ten year longstop for claims from council approvals applies. Problems with leaky homes have given rise to a substantial number of claims. A government response has been to provide a mediation service, and to assume liability for a percentage of repair costs.Design/methodology/approach – The history of liability of local authorities for negligence in respect of building approvals is assessed, through examination of the statute law and the common law principles.Findings – The findings of liability of local authorities in New Zealand is compared to the legal position in the UK. Conclusions are drawn as to legal and practical outcomes.Originali...
{"title":"Local authority liability in New Zealand for defective homes","authors":"K. Palmer","doi":"10.1108/17561451211273356","DOIUrl":"https://doi.org/10.1108/17561451211273356","url":null,"abstract":"Purpose – The purpose of this paper is to assess the legal liability of local authorities in New Zealand for the issue of building consents and inspection, in respect of domestic homes where the property proves to be faulty. A local authority may be liable for economic loss. The duty of care extends to the owners of multi‐unit dwellings, but not commercial buildings. A ten year longstop for claims from council approvals applies. Problems with leaky homes have given rise to a substantial number of claims. A government response has been to provide a mediation service, and to assume liability for a percentage of repair costs.Design/methodology/approach – The history of liability of local authorities for negligence in respect of building approvals is assessed, through examination of the statute law and the common law principles.Findings – The findings of liability of local authorities in New Zealand is compared to the legal position in the UK. Conclusions are drawn as to legal and practical outcomes.Originali...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"438 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124256907","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2012-09-28DOI: 10.1108/17561451211273338
R. Home
Purpose – Forced eviction is a topic of growing importance globally, and the purpose of this article is to investigate a much‐publicised recent case involving Gypsies and Travellers in the United Kingdom (not usually a country associated with such actions).Design/methodology/approach – After setting the context of planning enforcement law in the UK, Green Belt and other planning policies, and the status of Gypsies/Travellers as a disadvantaged minority group, the paper traces the history of the Dale Farm eviction over a 25‐year period and analyses the legal arguments put to the High Court in unsuccessful attempts to defer and over‐turn the eviction, against the context of internationally agreed guidelines.Findings – The research found that the judiciary gave full consideration to all aspects, in accordance with ECHR case law, and upheld the Green Belt and planning objections. The UK government was determined to proceed, resisting various offers of mediation, and the site was cleared even though no appropr...
{"title":"Forced eviction and planning enforcement: the Dale Farm Gypsies","authors":"R. Home","doi":"10.1108/17561451211273338","DOIUrl":"https://doi.org/10.1108/17561451211273338","url":null,"abstract":"Purpose – Forced eviction is a topic of growing importance globally, and the purpose of this article is to investigate a much‐publicised recent case involving Gypsies and Travellers in the United Kingdom (not usually a country associated with such actions).Design/methodology/approach – After setting the context of planning enforcement law in the UK, Green Belt and other planning policies, and the status of Gypsies/Travellers as a disadvantaged minority group, the paper traces the history of the Dale Farm eviction over a 25‐year period and analyses the legal arguments put to the High Court in unsuccessful attempts to defer and over‐turn the eviction, against the context of internationally agreed guidelines.Findings – The research found that the judiciary gave full consideration to all aspects, in accordance with ECHR case law, and upheld the Green Belt and planning objections. The UK government was determined to proceed, resisting various offers of mediation, and the site was cleared even though no appropr...","PeriodicalId":158465,"journal":{"name":"International Journal of Law in The Built Environment","volume":"117 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123104247","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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