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Architects Legal Pocket

Book

To Katinka, Julian and Marianne

Architects 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

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The Boulevard, Langford Lane, Kidlington, Oxford, OX5 1GB
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First Published 2011
Copyright 2011 Matthew Cousins. Published by Elsevier Ltd. All rights reserved
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accordance with the Copyright, Designs and Patents Act 1988
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Practitioners and researchers must always rely on their own experience and knowledge in
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In using such information or methods they should be mindful of their own safety and the
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To the fullest extent of the law, neither the Publisher nor the authors, contributors, or editors,
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products, instructions, or ideas contained in the material herein.
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Contents
Preface

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
Architects 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
DEyncourt 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 Lloyds
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 Lloyds 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 OCallaghan [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 & Glyns 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 18731875, 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.

Architects Legal Pocket Book.


2011 Matthew Cousins. Published by Elsevier Ltd. All rights reserved.

2 Architects 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 Montesquieus
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 Kingdoms 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 Architects 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 Architects 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;

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. 45.

8 Architects 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
Queens 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
Kingdoms 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.

10 Architects Legal Pocket Book

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 Queens 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 Queens 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 Queens 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 TCCs 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).

12 Architects Legal Pocket Book

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.