Case study 1
Question 1; Answer;
Breaching of Planning Control takes place when activities involving development are put in progress without the consent from the department of planning. It is entirely carrying out construction or development with absence of planning permission. In failing to conform to any condition that is in connection with granting of planning permission, constitutes to a criminal offense. In the case presented the defendant carried out construction work without planning on how to avoid nuisance to the neighbors. He even ignored the claimant’s complaints as he alleged he was under pressure to finish the construction work. As a result he caused noise pollution and unnecessary nuisance to the plaintiff which led to the plaintiff developing stress due to the nuisance. In rectifying the situation, the defendant should have first of all done a thorough planning to identify how to structure and erect the Scaffold to avoid trespass to other people’s space. After being issued with planning permission from the local planning office, he should have gone further to negotiate with the closest parties who might be affected by his development and sought permission for a possible nuisance. An agreement would have been struck by the parties involved and possible alternatives provided. The work scheduling should then have been planned to avoid working on certain days like Sundays when most immediate neighbors need to rest after a long weeks’ working. The work would have been done without any scuffles or litigations (Department for Communities and Local government, 2006, pp. 1-7).
Question 2; Answer
Environmental health authority should have instructed the defendant that they are responsible to pay in that they have the obligation to ensure a safe environment conducive for human cohabitation. The environment must be free from noise pollution, air pollution and water pollution. Any party breaching this rule must be asked to pay by the authority for the harm caused to the residents.
Question 3; Answer
Trespass to land takes place when an individual enters another person’s lane directly without the consent and stays in the land, or erects any object on the land. Trespassing has various legal implications which may include; damages incase there are slight harm to the land, an injunction to avert further trespass at the mercies of the ruling magistrate. The claimant may also be granted the right to repossess the land if he or she had been unlawfully dispossessed of the land. The invasion of space above the property of the plaintiff gives rise for trespass action. Respectfully, damages were awarded to the plaintiff amounting to £ 500 considering she had not suffered any loss. This was established as the sum which could be asked for by the plaintiff as a just fulfillment for any discomfort caused by the infringement (Tufal, 2010, p.1).
Question 4; Answer
All this time the defendant did not act in a reasonable manner as illustrated from the start; he erected full five board scaffold without informing the claimant or even warning him of a possible noise making. This was due to previous personal conflicts. He still allowed the ladder beams from the Scaffold to overhang into the claimant’s property causing a nuisance. This was a case of trespass to the space above the petitioner’s property. Besides the claimant suffered from illness and stress due to untimely building process which occurred even over the weekends. Furthermore, he arrogantly claimed that building work is normally noisy and hence he did not consider the health being of the petitioner.
Question 5; Answer
Money was not awarded to the plaintiff because the court reasoned that construction work was naturally noisy and the plaintiff could prove any harm caused by the nuisance. Earlier on an injunction had already been issued to remove the scaffold and the defendant was given instructions to complete the work dependant on scaffold in time to avoid further nuisance. The defendant could not be charged on the same offense twice and so the plaintiff could not be given monetary compensation. Moreover, there was no clear communication between the defendant and the plaintiff hence no possible agreement on the available alternatives. The nuisance action, it was accepted that the owner had a right to use his land as he pleased and not be interfered. Though the actions led to conflict of interests, both of them were prone to restriction hence neighbors are supposed to cohabit which may to a certain extent create some amount of annoyance and discomfort. As a result no monetary damages were allowed to the plaintiff (Cristin, 2003, p.1).
Question 6; Answer
The application of standard form construction contract has various merits for the different parties in the process of construction. This is inclusive of the speed of producing tender documents, contract administrators’ expertise and the contractors who make the tenders. This builds a strong body which can assist in interpretation and construction of contracts. The main benefits include the following; there has been a change in the format in specifications like the layout, clauses arrangement and other additional plans which reinstated the previous appendix.
In the present standard form, there is integration of design extra and sectional conclusion extra into one agreement compared to the previous separately published extras to the contract (Needham-Laing, 2005, p. 3). Furthermore, there are no optional clauses to form a section of the contract conditions and the presence of third party with interests in meeting the terms of the contract is now enforceable. The stipulations connecting to the local authorities are now integrated in the conditions for the contract and that the contract conditions texts are in line all through the standard building contract.
Other benefits include; In case a seller sets up a standard form contract, he will be in a position to manipulate the form of the transactions giving him or her various benefits such as meeting the seller’s desires through functional legal necessities like; definition of the property and setting up the purchase price receipt and deposits. The seller will be in a position to set timing and activities for periods of contingencies and defining precedent conditions. Moreover, the seller can establish appropriate representations and agreements with the buyer and give rules of entry, information for indemnity and disclosure and issues to do with environmental health and safety. What’s more, rules for establishing the buyer’s and seller’s assignment can be made and provision of corporate Authority. The standard form also communicates the price and exceptions to standard through a letter of intentions which may lead to faster evaluation of offers against the standard (Leighton, 2010, p. 1)
Question 7; Answer
The defendant should have conducted the in such a way that he should have sought for all permission from relevant authorities such as planning permission. By obtaining the planning permission, the defendant would have then negotiated or warned the neighbors of possible interruption. Whether they were in good terms or not he should have communicated this and gave reasons as to why he should be allowed to enjoy his space. The noise emanating from the development or construction would have been minimized or conducted at an appropriate time and not on weekends as to avoid further noise and nuisance to the neighbors. Nevertheless, he should have also followed the recommendations of the planning council office to minimize invasion of space by his scaffold.
Question 8; Answer
A similar case study in relation to the above case, involves In Farley v. Keoughin which it was found by the court that even if a noise nuisance existed, it was detrimental not only the health condition of the claimant but also to his or her pleasure of the rights on the property and granted damages totaling £200 as costs or damages suffered by the plaintiff. Before then it had been noted in the case of Penseney v. Le Sueur in 1951 that the accused firm had challenged that the claimant had no liberty to protest about assaults made on liberties of pleasure but only on bothers attributed on proprietorial liberty, in which one of the challenges had been that the collisions as a result of the coal fall comprised a grave affliction for the inhabitants of the buildings. In addition, In the case of Courantev. Lefebvre, one of the claims was that the dust that was created resulted into difficult in breathing which caused difficult and poisonous consequence on the plaintiff’s health together with the health of the children. The amount estimated for the damages to their property and plants was £150 however the claimant asked for a total of £500 sterling.
Question 9a); Answer
Such kind of tragic death of the employee can be avoided in various ways; by allowing constant audits to be conducted at the work place and identifying the hazards that may result into accidental death. Through the audits, the workers will be forewarned on some of the risks that may present them. Besides, the audits will reduce some of the hazards by providing alternative ways of combating possible accidents. In addition I will conduct a thorough training of all employees whether they are experts or not of all the possible ways of preventing the accidents. For instance, with electricity, all the mains will be labeled and warning signs placed on them regarding the dos and the don’ts when dealing with electricity. I will encourage team intervention at work site by requesting everyone to be extra careful at all times. Incase one finds the other performing an activity that may pose danger; he or she should kindly inquire from the person the possible repercussions of the actions. This will put all members on alert at the work place. In avoiding unnecessary fines, I will try my best to meet all the requirements and recommendations by the health and safety executives in averting the potential risks at the construction site (Bureau Labor of Statistics, 2002, p. 11). For instance; by ascertaining that al systems for locking off power are in place to show which circuits could be switched on and off. Lastly, I would reschedule all working hours to avoid panic and inappropriate decisions that might lead into accidents.
Question 9b); Answer
The CFR group was in breach of Contract work hours Act and Safety Standards Act as they were working excessive working hours in order to accomplish the work. As a result the safety standards were easily ignored due to poor decision making. This made most of the employees forget simple procedures especially when dealing with electricity which led to electrocuting of employees due to breach of the Act. The contract working hors are meant to be 40 hours per week; any excess of this it’s going against the Contract Working hours. Besides, all the Safety Standards must be observed to avert preventable accidents and deaths.
Asif Tufal, (2010) Trespass to land, Law Teacher Inc.
Bedell Cristin, (2003), Tort: Trespass/Nuisance: Cornick -v- Le Gac 2003 JLR N , Bedell
Bureau of Labor Statistics, (2002) Census of fatal occupational injuries, Fatal
Injuries Washington, DC: U.S. Department of Labor, Bureau of Labor Statistics, Safety and Health Statistics Program
Department for Communities and Local government, (2006), Circular 11/95: Use of
Conditions in Planning permission, London, Queens Printers
Matthew Needham-Laing, (2005), mastering contracts: JCT 2005, FenWick Elliot
Rick Leighton, (2010), Standard form contract Advantages, commercial real estate,
NAI Global Executives
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