The Flaws and Inefficiencies of the Current Planning System - Essay Example

PART ONE 1.1 Outline of the Flaws and Inefficiencies of the Current Planning System The current system of planning is affected by the following flaws and inefficiencies which give rise for the need to change the system and these are: A. Complexity of planning structure; B. Speed and predictability of planning process; C. Community engagement is a failure; D. Customer focus and standards of service is not user-friendly; and E. Ineffective enforcement of the planning system. Reasons Given for Change There is a need to deliver fundamental change in the planning system. A planning system which is very important in our quality of life. The quality of our environment affects the quality of the lives of the people and the community. There must be a system that is constructive and progressive for the future development of the community and the economy as well. Unfortunately, this does not describe well the present planning system. The present planning system is very complex, difficult to understand and not easily accessed. This is due to the fact that the system is a multi-layered structure and as such some rules are vague and incomprehensible which left the applicants and others with an interest for development speculate on the basis in which decisions are made. In addition, the present planning system lacks predictability and the decision making is both slow and irregular among local authorities. The ambiguity of the criteria hinders in the timely delivery of decisions. Furthermore, the present planning system fails to engage the communities and there is the perception that the system favors those with deep pockets and great stamina. There is also the fact that user-friendly information is not readily accessible. These are among the reasons given for change. 1.2 Plan-led System of Development Control A plan-led system means that if planning applications are in accordance with the development plan, they are likely to be approved unless there are material considerations that suggest otherwise. These maybe, for example, subsequent national policy statements that may override the plan or changes in local circumstance. In practice, such material considerations very often do apply because local plans are frequently out of date. Proposals Put Forward for Reform of this System: A. Simplify the plan hierarchy, reducing the number of tiers and clarifying the relationships between them; B. Deliver shorter, better focused plans at the local level which can be adopted and revised more quickly; C. Engage the community more closely in the process of plan preparation; and D. Improve integration with other local strategies and plans. 1.3 A proposal for the fundamental reform of the development plans system, to abolish structure plans, local plans and unitary development plans and replace them with a new single level of plan. This would be known as a Local Development Framework. The Local Development Framework consists of the following: A. A statement of core policies setting out the local authority’s vision and strategy to be applied in promoting and controlling development throughout its area; B. More detailed action plans for smaller local areas of change, such as urban extensions, town centres and neighbourhoods undergoing renewal; and C. A map showing the areas of change for which action plans are to be prepared and existing designations, such as conservation areas. 1.4 In my opinion the proposals made will be effective for the following reasons: The statement of core policies of the Local Development Framework which will focus on the local authority’s delivery of a long term vision for the area, a clear objectives and a strategy of delivering such objectives, encourage the community to get involved, and a criteria based policies will be more effective than having a very complex policies that include lengthy provisions which are not the concern of local authority which causes only confusion and wrong perception of biases. A more specific policy which will address a specific locale encourages community involvement for the development of the area. Another reason for its effectiveness is the creation of a more detailed action plans of which the decision making is left to the will of the people in a particular area. It is just but proper to urge and inspire the people in shaping their communities take their views on what kind of development and how it is going to be laid. Persons whose property rights have been affected directly or indirectly shall have the right to be heard and be represented and since it is concentrated in a smaller area the process can be done quickly. Furthermore, the preparation of maps showing the areas of change determine the areas which are to be developed and which are to be conserved safeguarding the community for transport and other purposes enhancing the safety of the people. 1.5 Outline of the important shortcomings with the current system of Building Control: Currently a lack of direction in terms of the future of building control; There is a degree of confusion around the interface between building control and other relevant regulatory regimes; Stakeholders do not feel that they are consulted effectively; There is a sense that the regulations are too complex and can sometimes be conflicting; Regulations are changed too frequently; Compliance with some parts of the regulations is low for a variety of reasons; Most guidance is highly technical and does not do enough to meet the needs of different types of audiences; Sanctions are weak and enforcement could be improved; Future levels of resource will make achieving good levels of compliance and enforcement even harder; There is a need to further improve performance management of the building control system. Reasons Given For Change In a Ministerial round table meeting with the construction industry and a review of the building regulations, it is very apparent that there is a need for reform of the current building control system. Firstly, the accelerating economic and physical development coupled with urbanization makes imperative the creation of a clear, accepted and uniform standard of building control system. The current system contradicts with other relevant regulatory regime creating confusion rather than providing a clear end-to-end service of the whole life of the building. This also holds true for a system that is very complex. A simplified system is not difficult to comply with. Second, the stakeholders feel that they were not consulted and their views do not make a difference for the standardization of the system. The absence of a clear planned program of changes prohibit the industry to adapt or plan ahead. In addition, poor compliance mainly for the reason for lack of understanding of what is required and lack of resources within the building control profession which precludes inspection. A weak sanction allows the violator to get away with the offense. Furthermore, there is a need to improve performance management of the building control system to enable effective review and evidence based decision making. 1.6 After analysis of the current situation, the following options for reform are considered: A. The future of building control – establishing the vision and strategy for future delivery; B. Modernising the system - effective risk based inspection and enforcement; C. New routes to compliance – minimising the burden; D. A customer centric-approach – improving guidance and other tools to aid individual compliance; E. Improving our approach to regulation – stability and forward planning; F. Performance management and future capacity. The proposals made will be effective for several reasons. One is setting a high level objectives and purposes, a more defined roles and responsibilities of the building control system as well as settle conflicting provisions with other relevant regulatory systems would set the way for a better future of the building control system. Moreover, strict adherence for compliance paves the way for an effective risk based inspection and the imposition of a more stringent sanction for violations would definitely lessen the number of violators. A light penalty does not make a difference on the stakeholders’ perception and more often will result to disregard of the regulations set forth and a repetition of wrong doings. Modernisation of the system definitely speeds up the processes and eliminates the storage of large volume of documents and fast track the settlement of disputes between people carrying out building work and building control bodies. The web based system enables the stakeholder to readily access information about building control and caters to the specific needs of the stakeholder. Finally, it is necessary to improve the methods of regulation; it must be stable and plan forward so that the building control profession will not be subjected to frequent change having difficulty of keeping up. There must be a comprehensive forward plan of the changes ahead. The ageing building control profession is also a factor in the deterioration of the system. Aggressive efforts of recruiting qualified trainees and building control professionals must be conducted to address future demand. The current building control system is not without purpose. The quality, variety and performance of buildings is an indication of the success of the system and the people that operate it in the past. However, the world is moving on and the system needs to be upgraded to fit in today’s world. PART TWO CASE STUDY A. Abstract 1. During a conversation at a country club dinner, Dan Maxwell, a director of KNW Ltd., asked Alan Smith, owner of D&A Builders if he would be interested in constructing a couple of 3-bedroom semi-detached houses on a site that the company owns. 2. Having seen the plan, Alan Smith wrote to KNW Ltd. in a letter-head style form that he is willing to construct the houses for the sum of £95,000 each. D&A’s standard terms of business provided on the reverse side. 3. One of the terms provides that the contract price may vary according to the cost and availability of labour. 4. Dan responded by telephone and suggested that the price looked “OK” and that KNW Ltd. will confirm by letter. 5. One week later the company’s letter required a start on site by the 4th of July and the units to be completed in one month. 6. The letter provides other general terms but no price variation clause. However, it did contain a statement that time is of the essence and that the order would not be valid unless acceptance was confirmed by return of post. 7. D&A did not acknowledge receipt but proceeded immediately to the site and commenced construction. 8. When the first house is almost completed and is halfway through building the second house, an incident occurred on site. 9. KNW Ltd. wrote D&A that its services are no longer required and that it should leave site and not return. 10. D&A nevertheless continued with the building work as it is within the construction period. 11. On the 4th of August when the construction of the second house was almost completed, an interim account in the sum of £218,000 was send by D&A to KNW Ltd. 12. KNW Ltd refuses to pay as it was not completed on time. 13. In response, Alan countered that the event on 28th of July is irrelevant and threatened to sue Dan and KNW Ltd. jointly for payment of the outstanding account and for the rest of the agreed contract sum. 14. What are the chances of a successful action? 15. What are the possible defenses that could legitimately offered by Alan to any counterclaim of Dan and KNW Ltd.? B. Opinion 1. From the facts taken, there was a valid contract entered into between KNW Ltd. through Dan Maxwell being its director and Alan Smith, owner of D&A Builders. 2. Under section 107 of the Housing Grants, Construction and Regeneration Act 1996 c.53 provides that there is an agreement in writing (a) if the agreement is made in writing (whether or not it is signed by the parties), (b) if agreement is made by exchange of communications in writing, or (c) if the agreement is evidenced in writing. 3. It was held in RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd that for the purposes of the act it is sufficient that there be evidence in writing that was capable of supporting the existence of an agreement or its substance. 4. The fact that Dan Maxwell in behalf of KNW Ltd and Alan Smith are collaborating through a written communication in which the terms and conditions of each company are set forth in the communication letter. 5. Since there is a meeting of the minds and consent is freely given the parties are bound to fulfill their individual contractual obligations. 6. It is clearly provided under the Housing Grants, Construction and Regeneration Act 1996 c.53 section 104 subsection 1 that a construction contract means an agreement with a person for any of the following (a) the carrying out of construction operations; (b) arranging for the carrying out of construction operations by others, whether under sub-contract to him or otherwise; (c) providing his own labour, or the labour of others, for the carrying out of construction operations. 7. Alan Smith immediately performs some acts for the fulfillment of his obligation he has only one month to completely comply with this obligation. 8. The Housing Grants, Construction and Regeneration Act 1996 c.53 section 116 subsection 2 clearly provides that the scheme for construction contracts provides further that when an act is required to be done within a specified period after or from a specified date, the period begins immediately after that period. Hence, Alan Smith is well within the time frame for the fulfillment of his obligation. 9. Notwithstanding the fact, that Alan Smith did not acknowledge receipt of the order by confirmation through return of post there is still a valid contract. KNW Ltd silence as to the acceptance of the order by Alan Smith and allow the latter to continue with its building work estopped the former from denying the validity of the construction contract. A reasonable man would have expected Dan Maxwell or KNW Ltd, acting honestly and reasonably, to be under a duty to make clear, if that was its position, that the order was not valid unless acceptance was confirmed by return of post. There was the required unconscionability in KNW’s acquiescence and conduct to found an estoppel, as held in AC Yule & Son Ltd v Speedwell Roofing and Cladding Ltd. 10. Section 110 subsection 1 of the Housing Grants, Construction and Regeneration Act 1996 c.53 held that every construction contract shall (a) provide an adequate mechanism for determining what payments become due under the contract, and when, and (b) provide for a final date for payment in relation to any sum which becomes due. The parties are free to agree on how long the period is to be between the date on which a sum becomes due and the final date for payment. 11. Since Alan Smith fulfilled his obligation to do the construction work, it is but just and equitable that KNW Ltd will render payment for compensation of the work done by the former. However, despite notice of interim account in the amount of £218,000, KNW Ltd refused payment on the account that the houses were not finished on time. 12. The contention of KNW Ltd is not proper. 13. The Housing Grants, Construction and Regeneration Act 1996 c.53 section 110 subsection 2 stipulates that every construction contract shall provide for the giving of notice by a party not later than five days after the date on which a payment becomes due from him under the contract, or would have become due if (a) the other party had carried out his obligations under the contract, and (b) no set-off or abatement was permitted by reference to any sum claimed to be due under one or more other contracts specifying the amount of payment made or proposed to be made and the basis on which that amount was calculated. 14. Provided further in Cantrell v Wright & Fuller Ltd, final certificate contractual conditions had to be strictly construed. However, a departure from the contractual requirements only invalidated a certificate if its nature or effect was such that it was no longer clearly and unambiguously the required certificate in form, substance or intent. The requirement to issue the final certificate was also subject to implication that the relevant timescale might be relaxed so long as the steps linked to its issue were still taken before it was issued late. The power to issue certificates out of time had to be exercised reasonably and in accordance with any express or implied agreement of, or waiver by, the parties to relax the timetable for issue. 15. Alan Smith has consistently performed all the acts required of him in a manner corresponding to the form, intent and substance of the law. It is his prayer that he is paid for the sums due him. 16. It is not proper for KNW Ltd to escape payment without any notice of withholding payment. 17. In Reinwood Ltd v L Brown & Sons Ltd it is clearly held that provided certain preconditions were satisfied, the employer was entitled to give notice specifying the amount it proposed to withhold. Although, not spelt out, it had to be the case that both parties should be entitled to proceed on the basis that payment could properly be made in accordance with that notice. 18. The Housing Grants, Construction and Regeneration Act of 1996 section 111 subsection 1 further provides that a party to a construction contract may not withhold payment after the final date for payment of a sum due under the contract unless he has given an effective notice of intention to withhold payment. 19. It is provided under the Civil Procedure Rules 1998/3132 Part 24 that the court may give a summary judgment against a claimant or defendant on the whole of a claim or on a particular issue, if (a) it considers that claimant has no real prospect of succeeding on the claim or issue; or the defendant has no real prospect of successfully defending the claim or issue, and (b) there is no other compelling reason why the case or issue should be disposed of at a trial. 20. Moreover, it was held in Pierce Design International Ltd v Johnston that there were plainly sums properly due, and it was common ground that Alan Smith’s right to the sums due had accrued a sufficient time before the determination of the contract. As a matter of construction of the clause in the context of the JCT contract as a whole, a sum due by way of an interim payment would reasonably not have been paid by the employer if there was a valid withholding notice in respect of that sum. Conversely if there was no withholding notice, the sum would unreasonably not have been paid by the employer. As a matter of simple interpretation therefore, the non-payment by KNW Ltd amounted to a breach of the JCT contract, and the clause operated and prevented KNW Ltd from relying on their cross-claim to defeat Alan Smith’s claim for the sums due. It would also amount to an attempt by KNW Ltd to escape the obvious consequences of his breach. Alan Smith is, therefore, is entitled to summary judgment on that basis. REFERENCES Significant Cases Cited RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd [2002] EWCA Civ 270; [2002] 1 W.L.R. 2344; [2002] C.L.R. 21; 83 Con. L.R. 99; (2002) 18 Const. L.J. 425; [2002] C.I.L.L. 1841; (2002) 99(15) L.S.G. 33; (2002) 146 S.J.L.B. 78; AC Yule & Son Ltd v Speedwell Roofing and Cladding Ltd [2007] EWHC 1360 (TCC); [2007] B.L.R. 499; [2007] C.I.L.L. 2489 Cantrell v Wright & Fuller Ltd [2003] EWCA Civ 1565 Reinwood Ltd v L Brown & Sons Ltd [2008] UKHL 12; [2008] 8 t.G. 156 (C.S); (2008) 152 (8) S.J.L.B. 32; [2008] N.P.C. 20 Pierce Design International Ltd v Johnston [2007] EWHC 1691 (TCC); [2007] B.L.R. 381; 115 Con. L.R. 110; [2007] C.I.L.L. 2507 Legislation Cited Civil Procedure Rules 1998 (SI 1998/3132) Part 24 Housing Grants, Construction and Regeneration Act 1996 (c. 53) s. 107 Housing Grants, Construction and Regeneration Act 1996 (c. 53) s. 104 Housing Grants, Construction and Regeneration Act 1996 (c. 53) s. 116 Housing Grants, Construction and Regeneration Act 1996 (c. 53) s. 110 Housing Grants, Construction and Regeneration Act 1996 (c. 53) s. 111 Read More