Week 6: Construction Law

Question 1

In the private sector, buildings are typically designed to …

hint: solutions

Answer 1

Acceptable solutions
Verification methods
Standards
Guidelines
(Very little thought given to the big picture)

Question 2

What are the Three ‘Co-Equal’ Arms of Government?
(NZ & the Westminster System)

Answer 2

Legislature (statutory acts, supreme building law)
- Building act 2004
Executive (subordinate legislation, regulations, codes, standards)
- Building regulation 05/06/92
- Building code
Judiciary (rule on the law, statutory law, common law, contracts, torts)
- Acceptable solutions and verification methods
- Materials by reference (codes and standards)
- Determinations (dispute resolution)

Question 3

What is the effect of acceptable solution or verification method?

Answer 3

Complying with the acceptable solution/verification method helps you comply with the (relevant) provisions of the building code, but is not the only way.
- Not compulsory

Question 4

Define Deeming.

Answer 4

A statutory technique that extends the meaning of a word to make clear something which might otherwise be debateable.
- Deeming = “Treated as”
- Acceptable solution/verification method is a Deeming instrument

Question 5

Standards and Codes are subject to the …

Answer 5

Building Act 2004

Question 6

An acceptable solution/verification method must state …

Answer 6

The date on which it comes into force.
Whether the acceptable solution/verification method applies to building work for which a building consent has already been issued.

Question 7

In a building required to be Type A or B construction, the following building elements and their components must be non-combustible …

Answer 7

External walls and common walls.

Question 8

What are Performance Criteria?

Answer 8

Qualitative or quantitative criteria that the building is required to satisfy in performing its functional requirements.
- Different to acceptable solution/verification method (no prescriptive answer).
- They set thresholds.

Question 9

The Building Act 2004 provides regulation of building work, establishment of licensing regime, setting of performances standards to ensure that …

Answer 9

People who use buildings can do so safely without endangering health.
Buildings contribute appropriately to health, physical independence, well-being of people.
People can escape if on fire.

Question 10

What is a Tort?

Answer 10

A civil wrong independent of contract.

Question 11

What are the two accidental types of Tort?

Answer 11

Negligence: Harming people or property where there is a duty to care not to harm. (e.g. leaky buildings, cladding fires, badly designed stairs)
Nuisance: Interference with public or private interest. (e.g. noise, spread of fire, water runoff)

Question 12

What are the different types of Liability?

Answer 12

Strict liability: regardless of standard of care provided, liability by supplier is absolute. –> only have to show cause
Negligence: In reasonable care taken, no liability.
Contributory negligence: Injured also partly at fault. Usually last mover is fully liable.

Question 13

What are the Five Elements which must be satisfied for a Negligence claim?

Answer 13

Duty of care
Breach of duty of care
Damage
Cause
Proximity

Question 14

What is the Economic Model of Negligence?

what is the criteria for negligence?

Answer 14

L(x) = x + y + p(x)D(x) –> if responsible behaviour= obligation of ‘injured party’ (uni-lateral care)
- Probability of damage (p)
- Damage (D)
- Expected damage (p(x)D(x))
- Cost of precautions to lower expected damage (x) owed
- More precautions spent, lower expected damage.
- Total loss (L)
- Cost by injured (y)
Optimal care = x*
x<x* is negligent; likewise for y
x >= x* is not negligent; likewise for y

Question 15

What is the order of hierarchy in the Westminster system?

Answer 15

1. Statutory acts (Legislature supreme law)
2. Regulations (Executive subordinate legislation)
3. Design ‘cookbooks’, codes, standards (Executive subordinate legislation)

Question 16

What does the executive body do?

Answer 16

• pass secondary legislation
• administer statutes

Question 17

Who usually rules: judiciary or executive?

Answer 17

Judiciary ALMOST ALWAYS rules over executive.

on administrative and legislative decisions

Question 18

What does the judiciary do?

Answer 18

• Rules on decision of executive: Judicial Review
• Lower (disputes tribunal, coroner’s court, environmental court) and senior (high court, court of appeal, supreme court) courts

Question 19

What is the New Zealand Gazzette?

Answer 19

Official government newspaper of constitutional record. Almost all laws are required to be publicly notified via the NZ Gazzette.

Question 20

What are the 2 types of decisions in the Judicial Review?

Answer 20

1. Administrative executive decisions
2. Legislative decisions

Question 21

Is there a legal requirement for government to check the legality of a guideline?

Answer 21

No

rarely classified as subordinate legislation & errors can be disastrous

Question 22

What is moral hazard?

Answer 22

Someone bears cost of another’s lack of effort. Person ‘x’ pays for person ‘y’ lack of effort/cost.

Question 23

What is textual statutory interpretation?

Answer 23

straightforward procedural clause

Question 24

What are the different types of contextual statutory interpretation?

hint: (known by its friends) and (of the source kind)

Answer 24

nositure a sociis (known by its friends): the meaning of an unclear word can be gathered from the context
ejusdem generis (of the source kind): if your example doesn’t fit in any ideas then it comes under this.

Question 25

What is an example of purposive statutory interpretation?

Answer 25

Apply purposive principle to building code.