The Planning Green Paper of 2001 by HM Government - Essay Example

TOWN PLANNING AND BUILDING CONTROL The Planning Green Paper of 2001 by HM Government was directed towards building a consensus through nationwide consultation on the issue of instituting major reforms in the land-use planning system. A judicious physical planning of the physical assets and use of the natural resources must be balanced with the need for economic growth, social progress, and environmental protection within the principle of sustained development. It is therefore apparent that the planning system be implemented at the local level- cities, towns and counties- as it is their land, natural resources, and community future that is at stake. There is a need therefore for an effective planning system , drawing lessons from past legislation as England aspires to be a leading global player in the new millennium. 1.0 Outline the Flaws and Inefficiencies in the current system of planning and briefly summarize in your own words the reasons given for change. Contrary to the intention of the original framers, through time, the planning system has run against its avowed principles whereby big business are deterred than attracted to set-up investments, stakeholders are discouraged than motivated towards involvement in the exercise. The identified flaws and inefficiencies are : The planning system has become very complicated. Being prepared and administered from national, down to the regional, local, county level, and from unitary authorities, unnecessary hierarchy is created lengthening and slowing down the planning process. For example, whereas local plans may tend to be very detailed with a view towards parochial orientation in disregard for national priorities, nationally-originated plans are distant from local realities. Processing proceeds at snail’s pace and outcomes are unpredictable. Statistics indicate of about half million applications being processed at the local level, excluding appeals, and resolution of disputes. Actual processing has been historically slow at the levels mentioned. Part of the problem is the lack of clear basis to evaluate an application hence resolution may be subjective and variable. While the business sector is supportive of the planning system, the slow processing time , and the unpredictability of outcome has been cited as cause of low entry of investments. Lack of interest and cooperation from the community As the beneficiary of the development plans, community engagement – from the business to private sector - is vital, but difficult to come by. Local communities had to contend with bureaucratic practices – long, frequent meetings, very technical discussions for comprehension by layman, and tendency towards unilateral action without consultation. Low regard for customer assistance and servicing of needs Planning agencies and personnel are occupied with the huge volume of applications they hardly provide basic advice or information on status follow-ups. The low technical skill of existing personnel and the inability to adequately interpret and apply complicated and conflicting policies add to low performance level. Poor and Uneven Enforcement of Sanctions The absence of clear guidelines on sanction has resulted in variable imposition of sanctions, creating negative public perception. 2.0 What is a plan-led system of development control? What proposals are put forward to reform this system? A plan-led system as a tool for development control is a established planning procedure that refers pending applications to available development plan to determine compatibility or whether “material consideration” would significantly alter the decision. Material consideration are recent policy updates and revisions which are incorporated into the main development plan. The plan-led system is a feature of the current planning system and recommended for retention because of its effectivity in fast-tracking the processing of application, subject to the following revisions: Reduction of agencies and streamlining functions and relationships Focus resources to strengthen local planning system Win back support and wider participation of local communities Ensuring the complementarity of different plans for easy integration. 3.0 A new single level of plan is proposed to replace existing requirements for structure plans, local plans, and unitary development plan? What might this be known as and of what will it be comprise? Green Paper of 2001 proposes the abolition of existing planning bodies – structure plans, local, and unitary development plan and the establishment of a single level plan to be known as Local Development Framework. To be effective, the Local Development Plan must cover the following areas: A Core Policy Statement setting the local vision of the plan, and the strategies for accomplishment. An important component in the core policy statement is the statement of support and participation from local communities A comprehensive action plan Support documents such as map and charts of the areas to be developed 4.0 Do you think the proposal put forward will be effective? Give reasons for your answer? The devolution of the planning system through the Local Development Framework would provide more realistic development plans and ensure community participation realizing their role in properly charting own future. It addresses the issues that plagued the efficacy of the previous planning system. But the proposed framework may eventually head the same direction unless the processes that make up the system are sustained. The partnership between the central, regional, and local authorities must be recognized, their roles understood and accepted to avoid the domination of one from the other. Central government is expected to provide the over-all vision and targets to be pursued. Regional agencies government, in linking-up with the central government , should develop the spatial plan for their areas. Moreover, while community engagement is critical, participation may also weigh down on the system. The differing interests advanced – business, cause-oriented, environment, may result in prolonging the process due to long debates and may lead to decision paralysis. Government should be ready to mediate and take a more balanced position as it provides the direction of development. Having set the operating mechanism, the more significant concern would be putting substance to the planning system. Present days challenges include: Balancing high levels of economic activity, or land expansion for housing or business with environmental issues of global warming due to pollution, unrestricted exploitation of natural resources Social concerns such as criminality, racial discrimination Social welfare issues of health, education, basic social services 5.0 Outline important shortcomings with the current system of Building Control and briefly summarise in your own words the reasons given for change? As suggestive of the agency’s name, the role and mandate of the Building Control is to be a regulatory body to oversee regulations related to building planning, construction, and maintenance. The clamor to modernise has put pressure on the agency as well as highlight the deficiencies that need to be corrected. These are: The agency suffers from identity crisis being perceived as duplicating other agency work, thus another unnecessary layer in the planning system. The organization is made up of ageing, technical personnel, with low regard for skills upgrading as reflected in a poor level of performance. Customer assistance is a low priority. Regulations are changed frequently thereby complicating further existing regulations which very technical and difficult to comprehend . The agencies customers are not properly consulted hence resulting in low compliance, and poor enforcement of sanctions. 6.0 What are the options in the package? Do you think the proposal put forward will be effective? Give reasons for your answer? To address these concerns, the Building Control has lined-up the following courses of action: Provide basis for Building Control’s operations through the development of a vision and mission to include rationalizing its operations, upgrading internal systems, defining role with public, and resource requirement. Upgrade to risk level of inspection versus the standard routine. Sanctions need to be reviewed for proper implementation and enforcement of sanctions. Simplifying internal systems and processes and guarantee compliance through innovative means such as the Competent Person Scheme Focus on Customer needs and render assistance by simplifying documentation making it more accessible and the language easy to understand Program frequency of updating building regulations Upgrade office skills and capability to highlight career opportunities and establish levels of performance to attract new recruits. Building Control is an agency involved in the planning process. Given that the document “The Future of Building Control” was prepared in 2007, and further to “ start the process of defining a more effective framework within which Building Control can develop into the future and taking practical actions to help the system operate more effectively now (The Future for Building Control, 5)” indicates the ongoing need to streamline planning agencies and prepare them for more challenging tasks. Under spatial development of the planning system, building infrastructures are constructed for different uses - as offices, shopping centers, and commercial buildings, warehouses, production, transportation terminals, hotels and resorts. For this reason, the role of Building Control is very important, and should begin from a building’s planning stage – architecture, civil and engineering works, to construction – building standards, planned vs actual, implementation of building code, revisions of work, up to completion and maintenance – regular inspection on integrity of structure, continuing compliance of safety regulations. A career under the Building Control is therefore complicated than present practice. A personnel requires very technical background, and needs to be immediately responsive to clients. Thus, there is a career growth in this trade, and properly disseminated can attract much needed fresh young blood. References: 1. Planning : Delivering Fundamental Change The Rt Hon Stephen Byers MP Secretary of State for Transport, Local Government and the Regions 2. Moderning Planning : A Progress Report Rt Hon Richard Caborn MP, Minister of State for the Regions, Regeneration and Planning. Date published: April 1999 3. The Future of Building Control Department for Communities and Local Government Copyright 2007 REPORT TO ALLAN SMITH The following is prepared for Alan Smith anent his planned legal action against Dan Maxwell of KNW Ltd, including reference to of decided legal cases with parallel circumstances to boost his arguments. Alan Smith, owner of D & A Builders has just submitted an “interim” bill to Dan Maxwell, director or KNW Ltd. amounting to £218,000 as full payment for the contract price of 1 unit housing unit, and partial payment for 1 unit housing unit. Alan Smith was informed of Maxwell’s refusal to pay citing the non-completion of the houses as per agreed time table and is strongly considering initiating legal action jointly on KNW Ltd. and Dan Maxwell for collection of entire amount consisting of £218,000 and the balance contract price for the second house. The following discusses the issues confronting Alan Smith: I. THE DISPUTE FALL UNDER THE PROVISION OF CONSTRUCTION CONTRACT? Alan Smith’s case is well covered under Title II: Construction Contracts. The main legislation is entitled Housing Grants, Construction, and Regeneration Act 1996, c. 53. As defined construction contracts is “an agreement with a person for …. carrying out of construction operations (Sect. 104- Construction Contracts, subsect 1-a),” where construction operations is further defined as “operations of any of the following descriptions – construction, alteration, repair, maintenance, extension, demolition, or dismantling of buildings, or structures forming, or to form part, part of the land (whether permanent or not) (Sect. 105- Meaning of Construction Operations, subsect. 1-a)” D & A Builders has completed for KNW Ltd. the construction of two (2) units 3-bedroom semi-detached houses, thus the dispute falls within the provision of Construction Law. An important issue to be resolved at the start is the existence of construction contract. This will be discussed further below under No. IV. II. WHAT SPECIFIC PROVISION HAS BEEN VIOLATED BY MAXWELL’S NON-PAYMENT? Under Section 111.— Notice Of Intention To Withhold Payment., states that payment may not be withheld unless a formal notice - adequate in form and substance is- issued to the other party. The communication must clearly specify the reason why payment is withheld and the corresponding amount. In a case entitled Melville Dundas Limited v George Wimpey UK Limited… an appeal to dismiss a case on non-payment was dismissed impressing the provision on non-wthholding of payment even when the reason is insolvency. Without the letter by Maxwell, and the defined contents, a violation may have been committed. III. WHAT IS THE PROPER VENUE FOR THE DISPUTE? Under Section 108 – Right to Refer to Refer Disputes to Adjudication states that a party to a construction contract has the right to refer a dispute for adjudication. Alan Smith, by going through this process is availing of his practical right to adjudication for quick enforceable interim decision under the rubric of “pay now, argue later “ as stated in the case RJT Consulting Engineering Ltd. Nevertheless, before Smith commences his legal action, he may consider writing Maxwell via post a final notice for collection including a statement of his intention to refer the dispute to an adjudicator after 7 days if no payment is received. IV. WHAT WILL BE DAN MAXWELL’S COUNTER-ARGUMENT IN PROTECTION OF HIS INTEREST? Maxwells’ line of argument will initially involve the propriety of Alan Smith’s assumption of Contract Law because of the absence of clear and documented contract, and furthermore Alan cannot avail of his right to adjudication. Specifically the following: As the transaction was a one-time, relatively small arrangement worth around £190,000, there was no need for the preparation of a standard contract Given that there were indeed communications exchanged by D & A and KNW Ltd., these are mere letters and do not constitute a contract Assuming, for the sake of argument, a contract existed, Alan Smith has failed to acknowledge the order to commence construction D & A was involved in a very grave incident on July 28 whereupon, notice of termination and immediate departure was issued, but was disregarded by D & A In the case of Galliford Try Construction Ltd v Michael Heal Associates Limited, which was a case about the redevelopment of an existing hotel into apartment rows, parallel issues on the jurisdiction of adjudicator because of the absence of a contract despite the exchange of communications, it was ruled that a contract through letter sending may bind parties, although at the time the parties did not imagine that they were putting in place the terms of a contract which bound them. Furthermore, the issue of referring a dispute for adjudication was the issue at hand in case of AWG Construction Services Limited v Rockingham Motor Speedway Limited which is about the design and construction of a new motor racing track and ancilliary facilities near Corby in Northamptonshire. The principles of dispute adjudication were discussed. Although the decision ruled against the referral to an adjudicator, it was due to the adjudicator’s overstepping his legal function than the legal facts falling out of jurisdiction. In ABB Power Construction Ltd v Norwest Holst Engineering Ltd., the claimant ABB Power proceeded to disrupt the action to refer the dispute for adjudication even before it began, thus supposedly sparing cost of litigation and other expenses. The case involves the construction of power generating stations. Ultimately, ABB was granted mandatory order restraining execution of decision because the case did not fall under the construction contract provision. As to the incident of July 28, Maxwell did not enforced his instruction to evict D & A by other means than through communication. Moreover, the letter failed to include details such as remuneration for completed project. Realize that at the time of the incident, D & A was complete with the first unit and was halfway through the second unit. In the same way, that if D & A failed to formalize its acceptance, KNW should have hindered D & A from commencing with the project. These arguments of Maxwell may be deemed moot because of Smith performance - the completion of construction. The main arguments to be offered by Maxwell would involve the following: Exceeding set completion time Smith ground in defence of KNW Ltd. claim that the “houses were not finished on time” are : Duration of project not clarified Maxwell should provide leeway for completion time, given there were no strict schedules and guidelines when to start and finish the project. Moreover, assuming D & A exceeded completion time, it is presumed the period was not substantial to cause a major problem. In the case of RJ Knapman Limited v. Richards and Others, the contract expressly stated of exclusive dates for the entire project, and furthermore, the issuance of a non-completion certificate if this should happen, but is allowed a one-time privilege to request for extension. By his own action, Maxwell has added to the delay – if there was a delay- of the completion day because of his notice to terminate work and immediately depart from the site based on July 28 letter, which if followed by Smith would derail the project which was around 75% completed In City Inn Limited V Shepherd Construction Limited, despite the duration being expressly provided, intervening events such as late instruction of architecture cannot should not be taken against project timetable, but in fact extend the completion as these were beyond the control of the concerned party. References : 1. Housing Grants, Construction And Regeneration Act 1996 C. 53, Part II Construction Contracts 2. RJT CONSULTING ENGINEERS LTD. V DM ENGINEERING (NORTHERN IRELAND) LTD. Case No: A1/2001/1235 Court of Appeal (Civil Division) 8 March 2002 3. Neutral Citation Number: [2002] EWCA Civ 270 2002 WL 237065 Before: Lord Justice Auld Lord Justice Ward and Lord Justice Robert Walker Friday 8th March, 2002 4. Galliford Try Construction Limited V Michael Heal Associates Limited Case No: Ht-03-179 High Court Of Justice Queens Bench Division Technology And Construction Court 5. Awg Construction Services Limited V Rockingham Motor Speedway Limited High Court Of Justice Queen's Bench Division Technology And Construction Court 5 April 2004 6. R J KNAPMAN LIMITED V RICHARDS AND OTHERS Case No: HT-06-264 High Court of Justice Queen's Bench Division Technology and Construction Court 12 October 2006 7. MELVILLE DUNDAS LIMITED (IN RECEIVERSHIP) AND OTHERS (RESPONDENTS) V GEORGE WIMPEY UK LIMITED AND OTHERS (APPELLANTS) (SCOTLAND) House of Lords 25 April 2007 7. 8. CITY INN LIMITED V SHEPHERD CONSTRUCTION LIMITED CA101/00 Outer House, Court of Session 30 November 2007 9. SWI LTD V P & I DATA SERVICES LTD Case No: B2/2006/2506 Court of Appeal (Civil Division) 4 July 2007 10. ABB Power Construction Ltd v Norwest Holst Engineering Ltd No. HT 00 / 290 High Court of Justice Technology and Construction Court Read More