Applying Building Control Legislation to Building Surveying - Assignment Example

Name Course Tutor Date Applying Building Control Legislation to Building Surveying 2.1 The common law in regard to the functions of a regulator in the building and construction industry The Legislations and the Acts Building and construction regulations The building and construction by-laws The enforceable guidelines and codes The building and constructions and proclamation The changes in the legislations The building and constructions provisions history The commencements of the Acts The regulatory practices The regulatory legislation The accompanying regulatory legislations Accessing legislations and how to maintain currency 2.2 A statute is a written and formal legislative enactment that is aimed at governing the actions of a state, city or county. They are meant to prohibit something, command and or give a direction towards a certain action or duty. It is however vital to note that all the statutes are laws but not all laws are statutes. Statutes are meant to apply to all the citizens of the state or county and cover a variety of topics. The building and surveying statutes in this state are contained in the Queensland Building Act 1975and its subordinate legislations. The Building Codes Queensland is a service area of the department of the local arm of the government and planning that is responsible in the developing and administering of appropriate codes and mechanisms of approval which is in line with the integrated and planning Act of the year 1997. The building and safety statutes are aimed at specifying the minimal acceptable conditions of safety for constructed objects which include buildings and other nonbinding structures. The regulatory statutes relevant to the regulatory area will include: The 1994 regulation on building and construction for combustible and combustible liquids Electricity national scheme (Queensland) Act 1997 National Environment Protection Council (Queensland) Act 1994 Building and Construction Industry (Portable Long Service Leave) Act 1991 Building and Construction Industry (Portable Long Service Leave) Regulation 2002 Domestic Building Contracts Act 2000 Building Fire Safety Regulation 2008 Building and Construction Industry Payments Act 2004 Mining and Quarrying Safety and Health Act 1999 Mining and Quarrying Safety and Health Regulation 2001 Building Act 1975 Workplace Health and Safety Regulation 2008 Local Government (Robina Central Planning Agreement) Act 1992 Building Regulation 2006 Transport Operations (Marine Safety„Designing and Building Commercial Ships and Fishing Ships) Standard 2006 Metropolitan Water Supply and Sewerage Act 1909 Anzac Square Development Project Act 1982 Workplace Health and Safety Act 1995 Petroleum and Gas (Production and Safety) Regulation 2004 Coal Mining Safety and Health Act 1999 Petroleum and Gas (Production and Safety) Act 2004 Workplace Health and Safety Regulation 2008 Wet Tropics World Heritage Protection and Management Act 1993 Registration of Plans (H.S.P. (Nominees) Pty. Limited) Enabling Act 1980 Registration of Plans (Stage 2) (H.S.P. (Nominees) Pty. Limited) Enabling Act 1984 Integrated Resort Development Act 1987 Sustainable Planning Regulation 2009 Thiess Peabody Mitsui Coal Pty. Ltd. Agreements Act 1965 Sanctuary Cove Resort Act 1985 Supreme Court Act 1995 Offshore Minerals Act 1998 Workers' Accommodation Act 1952 Petroleum (Submerged Lands) Act 1982 Fire and Rescue Service Act 1990 Work Health and Safety Act 2011 Building and Construction Industry Payments Regulation 2004 Survey and Mapping Infrastructure Act 2003 Forestry Act 1959 Major Sports Facilities Regulation 2002 South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 Property Law Act 1974 Environmental Protection (Waste Management) Regulation 2000 Gladstone Power Station Agreement Act 1993 Coal Mining Safety and Health Regulation 2001 Local Government (Finance, Plans and Reporting) Regulation 2010 Queensland Building Services Authority Regulation 2003 Standard Plumbing and Drainage Regulation 2003 Coastal Protection and Management Regulation 2003 Collections Act 1966 Financial Intermediaries Act 1996 Plumbing and Drainage Act 2002 Geothermal Energy Act 2010 Transport Infrastructure Act 1994 Nature Conservation Act 1992 Water Supply (Safety and Reliability) Act 2008 Transport Operations (Marine Pollution) Act 1995 Mineral Resources Act 1989 Electrical Safety Regulation 2002 Workers' Compensation and Rehabilitation Regulation 2003 State Transport (People Movers) Act 1989 Cooperatives Act 1997 Public Health Act 2005 Acquisition of Land Act 1967 State Development and Public Works Organization Act 1971 Land Title Act 1994 Greenhouse Gas Storage Act 2009 District Court of Queensland Act 1967 Marine Parks Act 2004 Industrial Relations Act 1999 Electrical Safety Act 2002 Coastal Protection and Management Act 1995 Bail Act 1980 Police Powers and Responsibilities Act 2000 Local Government Act 2009 Water Act 2000 Competition Policy Reform (Queensland) Act 1996 Penalties and Sentences Act 1992 Urban Land Development Authority Act 2007 Transport (Rail Safety) Act 2010 Fisheries Act 1994 Electricity Act 1994 Local Government (Operations) Regulation 2010 Transport Operations (Marine Safety) Act 1994 Transport Operations (Marine Safety) Regulation 2004 Transport Operations (Road Use Management) Act 1995 Health Regulation 1996 Geothermal Exploration Act 2004 Anti-Discrimination Act 1991 Vegetation Management Act 1999 State Development and Public Works Organisation Regulation 2010 Transport Operations (Passenger Transport) Act 1994 Nature Conservation (Protected Areas Management) Regulation 2006 Environmental Protection Act 1994 Environmental Protection Regulation 2008 Queensland International Tourist Centre Agreement Act Repeal Act 1989 Radiation Safety Act 1999 Weapons Regulation 1996 Queensland Reconstruction Authority Act 2011 Tow Truck Act 1973 Acts Interpretation Act 1954 Legal Profession Regulation 2007 Duties Act 2001 Professional Engineers Act 2002 Land Tax Act 2010 Land Valuation Act 2010 Queensland Civil and Administrative Tribunal Regulation 2009 Land Sales Act 1984 Architects Act 2002 Plant Protection Regulation 2002 Fair Work (Commonwealth Powers) and Other Provisions Act 2009 Land Regulation 2009 Health Act 1937 Dividing Fences Act 1953 Marine Parks (Great Sandy) Zoning Plan 2006 Child Employment Regulation 2006 Water Resource (Cooper Creek) Plan 2000 Integrity Act 2009 Judicial Review Act 1991 Public Health Regulation 2005 Subcontractors' Charges Act 1974 Public Sector Ethics Regulation 2010 (Queensland legislation) 3.1 Legislations that impose duty on an officer is a section of law regarding the contracts that are to be observed between the contractors, subcontractors, principals and the sole owners of the building facility i.e. those with the building permits. Queensland building services authority Act 1991 Architects Act 2002 (Queensland legislation) Legislation that impose a duty on a member of the public (regulatee) to whom the law applies. The Acts are to give guidelines and principles in the liability of the public bodies. Duties Act 2001 The 1998 building and construction regulations on groups and unit titles (Queensland legislation) Provisions that confer a power on an officer Professional standards Act 2004 Property law Act 1974(this confers power upon regulator to assess the legality of the land acquisition and the type of land as per the intended use of the land in relation to the state bylaws) (Queensland legislation) Provisions that confer a power on a regulate (power conferred upon the regulator to give guidelines and offer principles that the contractors are to tow along in relation to the by-laws regarding plumbing and drainage) Plumbing and drainage Act 2002 Transport infrastructure Act 1994 (Queensland legislation) Provisions that are directory None Provisions that create an offence by creating guidelines and principles that are to be adhered to and which are to keep the contractors and the owners of the building permits from committing a criminal offence. Building and construction industry payments Act 2004 Building units and group titles Act 1980 Local governments Act 2009 Land title Act 1994 Land Act 1994 Property law Act 1974 (Queensland legislation) 3.2 The legislation usually has a format in which they follow as they are written. This Title of Act Year format. This is where it consists of the short title and ends with Act. For example Title: Queensland Act: Act and lastly the Year: 2001. This is represented in a diagram as: The long title that is normally present under the title is usually used to give a description of the purpose or the scope of the Act. The legislation has a structure which consists of chapters, divisions, parts and subdivisions. The schedules that are normally found at the end have a function of repealing of other legislations and give matters of definition and details of a particular legislation. This and the uniform numbering system are vital for the purpose of a regulator. The most useful numbering system that will be of great use to the regulatory legislation is illustrated in the diagram below (Carvan, 1994 and 1999). (ii) An example using a selected Act of legislation is represented in the illustration below (Carvan, 1994 and 1999); Title “Survey and Mapping Infrastructure (Survey Standards) Notice (No. 2) 2005”. Subtitles “Making of standards Public access to standards Repeal” Consequences of inaccuracies in citing legislations (Understanding legislation) The user of the law or the person referring to the law will have a hard time retrieving the citation The reader will have difficulty in finding decisions Valuable information about the case at hand will be lost The reader will not be provided with a clear road map that is able to direct the reader to locate a particular law The reader will be forced to take a detour from their definite goal and engage more time in location of legal research 4.1 The provisions contained in part 2 of the “Building fire safety regulations Act 1991” that apply the “Class Rule” Mechanical ventilation “17. A person must not install or modify a mechanical ventilation system or air conditioning system to operate in a building so that, in the event of fire, it is possible for air to flow into any space forming part of a means of escape from any other space in the building. Maximum penalty—30 penalty units. Fire and evacuation plans 11 (2) (e) if a person working in the building has other persons in care or custody within the building— the procedure in the event of fire for— (i) Conducting the persons to an exit; and (ii) Marshalling the persons in a safe place; and (iii) Checking whether all the persons are present at the safe place; (Queensland legislation) 5.1. Commencing building work without a permit Queensland Building Act 1975 32. Local laws, planning schemes and local government resolutions that may form part of the building assessment provisions. 33. Alternative planning scheme provisions to QDC boundary clearance and site cover provisions for particular buildings. (Understanding legislation) Carrying out building work on land that is incapable of being drained State Development and Public Works Organisation Regulation 2010 16. Conversion of UDA development approval to SPA development approval 18. Provisions for converted SPA development approval (Understanding legislation) 6.1. Explanations of these terms – common law, case law, unenacted law, judge-made law and judicial precedent Common law also referred to as case law is the law that is developed mainly by the judges through the court decision and other tribunals that are similar. It is usually unwritten and is usually based on the court decisions that are as distinct from the statute law. It is mainly administered in the court system and is established for the sole purpose which is as separate from admiralty or impartiality. The law derives its strength from the immemorial practice and the consent that is universal (Duhaime’s Legal Dictionary). Case law is the law that is mainly established through judicial decisions that are made in particular cases as an alternative/substitute of by lawmaking action. The development is mainly developed and witnessed by the appellate courts during the process of making decisions on appeals. They are mainly in the form of writings that explain the case verdicts which are accompanied by explanations. This can later be verified by other judges when making judgments that are of similar relation thus being able to have the law remain relatively unswerving (Duhaime’s Legal Dictionary).. Unenacted laws are laws that are established based on earlier decisions by the judiciary. It is formed from a jurisprudence system that is based on the precedents of the judiciary instead of the statute laws. The law can be applied in the absence of applicable rules that are to be contained in the statutes. They are viewed as sources that are secondary that are meant to fill in any seen vagueness in the statutes (Duhaime’s Legal Dictionary).. Judge made law is that which has been developed from the judgments that have been made in the courts. These are decisions mainly that are not found in the parliamentary acts. These are mainly in reference from earlier similar cases which constantly evolve as new decisions are made by judges over cases they presided upon. In these cases, the judges always interpret a law through the creation of a new one. The judicial decisions mostly construe away the statutes meanings or find new meanings in them that the judge never intended (Duhaime’s Legal Dictionary).. Judicial precedent refers to the decision that is made by a certain court on certain case that is normally used as a source for making decisions on future cases of similar conditions. This means that the standards set are of authority and are binding thus are relied upon in the making of decisions concerning cases of similar conditions. The principle applied by the courts in this case is referred to as “stare decisis ie” where the inferior courts are obliged to apply the principles and practices that have been applied by the superior courts in the state of jurisdiction (Duhaime’s Legal Dictionary).. Court hierarchy Court hierarchy in Australia is complex as in addition to the federal courts, the states and other territories have their own court hierarchy. The country has a single system in as much as the existing different supreme courts are not necessarily bound by the decisions that are made by the supreme courts that exist in the other states and or territories. However, all the states share the high court of Australia as the court of appeal which is the highest court in the country. This is the superior court to all the other federal courts that exist in the various states. The family law matters are dealt with in the Family court of Australia. The country has four principle federal courts which include “the high court, the federal court of Australia, family court of Australia and the federal magistrate’s court of Australia”. Other courts that exist in the country include the “industrial relations court of Australia and the state and territory courts”. The court hierarchy has a great influence in which the courts make decisions on the cases that are brought before them on daily basis (Meek, 1999). 8.1. Reasonable man in relation to the tort of negligence Reasonable man is a phrase that is normally utilized to refer to the/a hypothetical individual who exists in the society and applies average care, judgment and skill in his conduct and serves a proportional standard in the determination of liability. Whether a person is judged to be guilty of an offence, the decision will or might have to involve the application of objectivity to have his conduct compared to that of a person who is perceived to be more reasonable based on similar circumstances (Meek, 1999). Pyrenees case This high court case pitched “Pyrenees Shire county vs Day; Eskimo Amber Pty Ltd. In 1998 192 CLR 330”. The decision by a majority of the high court termed the doctrine as fiction and would eventually result in massive uncertainty if at all costs the general if the community’s anticipations were to be the liability touchstone. It left no doubt that the plaintiff would not have any difficulty if he/she had to prove the existence of the general expectations. In this case, the general negligence of the council that arose out of a fire which totally guttered the connecting premises which had spread from a fire place that was defective that the council was aware of. This was evident as the council had ordered its immediate repair. All the justices of the high court gave judgments that were separate which gave evidence that it is possible for at times liability to fail in the exercising of a statutory function (Past Announcements). 9.1. Search for definitions or explanations of the following terms – natural justice, procedural fairness and ultra vires Natural justice is a doctrine of legal system that is vested with the role of protecting against exercise of power that is arbitrary through ensuring that the process is fair based on the two main fundamentals which include; “hear the other side”, which implies that no accused person is to be directly shaped by the decision until he/she is given a chance to submit his/her case which is meant to result in an opposing argument. Secondly, “no man is a judge in his/her own case”, this implies that no decision is valid if it was deemed or conclusively proven to have been influenced by a certain interest or consideration (Collin, 2000). Procedural fairness is mainly concerned with the steps and modus operandi that was used to reach a decision. This process is not concerned with the actual outcome but rather the process through which the decision was reached. This is meant to ensure that a just and fair methodology was used to give both the disputing sides a chance to present their case. According to Ombudsman, a judicial process that applies a just and fair methodology in its case is much more likely to achieve results that are fair and correct to both sides (Collin, 2000). Ultra vires is a latin word which means further than the powers. It is a doctrine in the corporation’s law that is meant to give insight that if corporations are to enter into a binding agreement that is beyond their reach of its powers the contract is termed to be illegal. The doctrine is vital in corporate power development. This law is mainly and widely used in government entities. It is a term that is also used to refer to any other action that corporate charters prohibit. This could also be used to refer to the excessive utilization of corporate power which has been granted. This excessive power that is utilized has no legal defense in court. the application of these leaves the corporations at a much more vulnerable state to lawsuits from its or their employees and other stakeholders (Collin, 2000). Work cited Queensland legislation, http://www.legislation.qld.gov.au/Search/, accessed on the 29th of July 2011. Carvan, J. 1994 and 1999, Understanding the Australian Legal System, 2nd and 3rd edns, The Law Book Co., North Ryde, NSW. Collin, P. H. 2000, Dictionary of Law, 3rd edn, Peter Collin Publishing, London. Meek, M. 1999, The Australian Legal System, 3rd edn, LBC Information Services, Sydney. Understanding legislation www.legislation.sa.gov.au/Web/Information/Understanding%20legislation/UnderstandingLegislation.aspx#reading, accessed on the 29th July 2011. D. J. Gifford, and K. H. Gifford, K. H. 1994, How to Understand an Act of Parliament, 8th edn, The Law Book Company, North Ryde, NSW. Duhaime’s Legal Dictionary at, www.duhaime.org/LegalDictionary.aspx, accessed on the 30th of July 2011. Past Announcements, http://www.austlii.edu.au/austlii/recent.html, accessed on the 30th July 2011. Read More