Law and the Built Environment

Any system of law is basically a method of trying to enforce order and a reasonable standard of fair play. In any community, rules will develop to control the relationships between individual members. The law acts as a set of rules which protect the rights of individuals and organisations while at the same time imposing obligations on the community at large. There must be some method of enforcing these rules and ensuring that the system is flexible enough to respond to the need for change where and when it is necessary. This book is concerned primarily with rights and duties which affect those in the landed and building professions. These are areas of life which have long had to comply with legal formalities and requirements. As society has evolved and become more complex, the laws governing such activities have increased and become more sophisticated. The aspects of law to be considered in this book have application in England and Wales. Some of the principles apply in Scotland and Northern Ireland as well, but in areas such as the organisation of the court system and the methods of transferring land there are significant differences.

The law of contract is frequently the first ‘case law’ subject to which students are introduced when they commence their legal studies. The main reason for this is that contracts affect the general public more than most areas of law and arise daily in business and commercial life. When land or buildings are transferred, the contract is the most important stage in the process. The sheer number of agreements entered into leads to disputes which need to be resolved by one means or another. The ‘golden age’ of the law of contract was in the Nineteenth Century when its major principles were evolved on free market ideologies.

A tort is a civil wrong. The law of tort, like contract, is part of the civil law and has been developed from common law principles. Unlike the law of contract there is no complete body of rules which apply to all torts in the way that all contracts are governed by the same general principles. There are some similarities between contract and tort but also substantial differences. In civil jurisdictions, contract and tort tend to be grouped together as the Law of Obligations. A claim in tort is concerned with the adjustment of losses while the remedy sought is damages. The plaintiff is seeking compensation for loss to property, reputation, pocket, physical injury or some other interest protected by the law. This may be in the form of an act, omission or the giving of advice. There can be an overlap between tortious liability and other areas of law, while certain factual circumstances may result in a civil action in tort and also in criminal proceedings. Common examples include road traffic accidents and accidents at work. In such circumstances each set of proceedings is dealt with differently, one aiming to compensate the victim and the other to punish the wrongdoer. Liability in contract is dependent upon the existence of an agreement, while duties in tort are imposed automatically by the law. The same act may be a tort and a breach of contract. A person who commits a tort is known as a tortfeasor.

Any discussion relating to buildings or land must concern itself with the legal status of different types of property. In most legal systems a distinction is made between land/buildings and other types of property. In Civil law systems, this distinction is between Immoveable property (land and buildings upon it) and Moveable property (everything else). This indicates the permanent nature of land and its unique status in contrast to other forms of property.

Those who work in areas related to landed property and the construction industry need to have an understanding of Public law. Public law is concerned with the state, public bodies, and the relationship between individuals and these organisations. One significant aspect is administrative law which attempts to regulate and control the government agencies which administer the legislative process. This is an expanding area of law which deals with applications for judicial review. This is a process whereby the courts scrutinise the manner in which a public body has acted when coming to an administrative decision. Such cases have increased significantly in recent years. This is law which is essentially statute based. Some aspects are products of the Nineteenth Century which have been developed into a more modern format, while others are of recent origin. Growing awareness of the problems which beset a highly industrialised society together with increased public interest in environmental matters have put these areas of law in the public eye more than ever before.

There are three main methods of carrying on a business in England and Wales. Either as: