Structural Survey 25:3-4 Law in the Built Environment 9781846635458, 9781846635441

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ISSN 0263-080X

Volume 25 Number 3/4 2007

Celebrating 25 years 1982-2007

Structural Survey Journal of building pathology and refurbishment Law in the built environment Guest Editor: Paul Chynoweth

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Structural Survey

ISSN 0263-080X Volume 25 Number 3/4 2007

Law in the built environment Guest Editor Paul Chynoweth

Access this journal online ______________________________

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Editorial board ___________________________________________

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Editorial __________________________________________________

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Legal and contracting issues in electronic project administration in the construction industry Sharon Christensen, Judith McNamara and Kathryn O’Shea ___________

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Assessment and enforcement of liquidated damages in construction contracts in Ghana M.M. Tuuli, B.K. Baiden and E. Badu _____________________________

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An investigation of evaluative and facilitative approaches to construction mediation Penny Brooker_________________________________________________

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Common sense applied to the definition of a dispute Angus Reid and Robert C.T. Ellis _________________________________

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The changing framework for conservation of the historic environment John Hudson and Philip James____________________________________

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CONTENTS

CONTENTS continued

Evolving heritage control and practice: the case of Anglican churches in English parishes John Mansfield ________________________________________________

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Improving curriculum theory and design for teaching law to non-lawyers in built environment education Robert J. Morris _______________________________________________

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Juritecture of the built environment: a different view on legal design for multiple use of land Danie¨lle A. Groetelaers and Hendrik D. Ploeger ______________________

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Defects in common property of strata developments in Singapore: representative actions against developers Alice Christudason _____________________________________________

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Problems in enforcing Dutch building regulations Jeroen van der Heijden, Henk Visscher and Frits Meijer _______________

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Appropriate real estate laws and policies for sustainable development in Nigeria Rashidat Adejoke Oladapo and Abiodun Olukayode Olotuah ____________

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Internet review ___________________________________________

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EDITORIAL BOARD

Professor Malcolm Bell School of the Built Environment, Leeds Metropolitan University, Leeds, UK

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Stephen Brown Royal Institution of Chartered Surveyors, London, UK Professor Michael Chew School of Design and Environment, National University of Singapore, Singapore Paul Chynoweth School of Construction and Property Management, University of Salford, UK Shima Clarke Assistant Professor, Department of Construction Science and Management, Clemson University, USA James Douglas School of the Built Environment, Heriot-Watt University, Edinburgh, UK Professor Charles Egbu School of the Built and Natural Environment, Glasgow Caledonian University, Glasgow, UK

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Peter Fall Eaga Partnership Ltd, Newcastle upon Tyne, UK Malcolm Hollis Professor of Building Pathology, University of Reading, Reading, UK B.L. Hurst Messrs Hurst, Pierce & Malcolm, London, UK Professor David G. Proverbs Director of Research, Built Environment Division, University of Wolverhampton, Wolverhampton, UK Richard Rooley Rooley Consultants, Slough, UK Peter Turner Foulden, Thetford, Norfolk, UK Sara Wilkinson Faculty of Architecture, Building and Planning, University of Melbourne, Melbourne, Australia

Editorial Changing times for built environment legal scholarship This special double issue of Structural Survey presents a cross-section of the legal research that is currently being undertaken in the built environment academic community. Its publication is timely. Legal academics within the built environment field have been slow to assert the value of their contributions in a research context and have often been overshadowed by their colleagues in the management, economics and (to a lesser extent) technology subject areas. There are signs that this is changing and that legal research is now willing to play as prominent a role in the built environment academic project as law teaching has always done. This is evident in the recent emergence of an identifiable academic legal community within the field (for example through the Built Environment Law Network; see www. bel-net.org) and in the recent formation of law subject groupings within the established built environment research organisations. Most recently the legal groupings within the European Network for Housing Research (ENHR) and Global Planning Education Association Network (GPEAN) have been joined by Working Commission W113 on Law and Dispute Resolution, within the International Council for Research and Innovation in Building and Construction (CIB). The emergence of recognised groups of legal scholars within the built environment has been accompanied by a plethora of opportunities for conference attendance and a corresponding avalanche of published outputs, both in conference proceedings and in peer-reviewed journals. Many legal scholars who had previously felt themselves confined to teaching duties within their respective institutions are therefore now contributing to the built environment research agenda with corresponding benefits for the field as a whole. The hope is that these developments, which include the publication of this Special Issue, will now encourage other legal scholars in the field to play a full and active role in its research activities. One of the priorities for this new academic community is to communicate its purpose, norms, values and methodologies to the wider built environment research community within which it resides. As individuals, legal researchers have perhaps been slow to do this in the past, with consequent misunderstandings and setbacks for their own research efforts. Many legal scholars within the field therefore report unhappy experiences of peer review at the hands of colleagues with no previous exposure to the particular features of legal scholarship. It is therefore hoped that the new community will spend some time reflecting on what it regards as credible academic legal research in the built environment and that it will then communicate its conclusions to colleagues in other subject areas. Although these issues have recently been explored in detail elsewhere (Chynoweth, 2007), some aspects should briefly be mentioned here. Crucially, the charge, often made by scholars within the sciences, that legal scholarship is “not research” must be responded to. A central feature of this response must involve an articulation of the epistemological nature of doctrinal (or “black-letter”) scholarship, and about how it differs from empirical and theoretical work. The purpose and rationale of doctrinal scholarship must also be explained. Although familiar to scholars within a legal academic community many built environment scholars express surprise that it constitutes an academic exercise at all.

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After all, they surmise, if one wants to know what the law is in a particular situation, why not just instruct a lawyer? The related issue of when doctrinal scholarship can be legitimately described as research, as opposed to a text book, or teaching or CPD contribution, must also be addressed by the new community, which must also be prepared to make some hard choices in this area. Whilst the empiricists’ taunt that “doctrinal work is not research” is clearly wrong, the defensive response that “all doctrinal work is research” can only harm the credibility of legal scholarship in the medium to long term. Finally, in an interdisciplinary field which is dominated by scientific practices and assumptions, some thought must be given to the methodology of legal scholarship. In the sciences academic credibility often hinges on the methodological approach, and it would be almost unthinkable that this aspect would be omitted from a published research output. Many scholars within the built environment share similar assumptions and, as many legal scholars have found to their cost, give short shrift to otherwise exemplary legal scholarship for the want of this missing ingredient. The interdisciplinary nature of the field means that it is not enough for legal scholars to dismiss these events as the actions of unenlightened colleagues. If they wish to participate in the wider built environment academic community it is surely incumbent on them to explain their methods to those from different academic traditions? This might involve either an explanation of the methodological approach that they have chosen to adopt, or a clear explanation of why this is not appropriate in a piece of legal research. In reality this will be difficult to achieve until the community as a whole has reflected on its own established practices, and collectively learned to describe these in terms that are familiar to colleagues in the other built environment subject areas. The contributions in this Special Issue adopt a variety of methodological approaches and examples will be found within them of doctrinal, theoretical, empirical, historical and comparative approaches as well, of course, as a variety of combinations of these. The articles address a wide range of traditional legal subject areas including property law, construction law, housing law, regulatory frameworks, IT law, historic buildings legislation and legal education. Their uniqueness, however, lies in the legal contribution that each of them make in addressing the problems and challenges of the built environment, in addition, of course, to the development of legal knowledge within their particular legal specialism. Finally, a particularly welcome feature of this collection of articles is that they have been contributed by authors from seven different countries. This is indeed a clear indication that legal scholarship in the built environment has broadened its traditional perspectives and that it is now much more integrated into the field’s aspirations and research agendas than has traditionally been the case. Paul Chynoweth University of Salford, Salford, UK Reference Chynoweth, P. (2007), “Legal research”, in Knight, A. and Ruddock, L. (Eds), Advanced Research Methods in the Built Environment, Blackwell, Oxford, forthcoming. Corresponding author Paul Chynoweth can be contacted at: [email protected]

The current issue and full text archive of this journal is available at www.emeraldinsight.com/0263-080X.htm

Legal and contracting issues in electronic project administration in the construction industry Sharon Christensen, Judith McNamara and Kathryn O’Shea

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Queensland School of Law, Queensland University of Technology, Brisbane, Australia Abstract Purpose – The purpose of this research project is to identify the legal and security issues, risks and barriers to the uptake of communication and document management technologies by the construction industry. Previous research suggests that the construction industry, especially in Australia, has been reluctant to adopt technology on a broad scale due to a range of legal uncertainties. The purpose of this paper is to explain the relevant legal issues and risks and to suggest possible solutions for legally compliant electronic project administration in the construction industry. Design/methodology/approach – This paper is based on research undertaken for the Australian Cooperative Research Centre for Construction Innovation (CRCCI) Research Project 2005-025-A, “Electronic Contract Administration – Legal and Security Issues”. The outcomes from the research to date include a literature review and several case studies. The research project will ultimately produce a set of recommendations for secure and legally compliant electronic project administration. Findings – It is apparent that, if the uncertainties associated with electronic project administration remain unresolved, then the practical consequences for parties using electronic project administration tools may be serious. On a more general level, these uncertainties will contribute to a reduced willingness by the construction industry to take advantage of modern communication technologies. Originality/value – This research contributes to the need for greater clarity and knowledge of the legal issues and risks of electronic project administration in the construction industry. Keywords Contract law, Risk management, Project management, Construction industry, Australia Paper type Research paper

Introduction This paper outlines the results of research conducted for the Australian Cooperative Research Centre for Construction Innovation (CRCCI) Research Project 2005-025-A, “Electronic Contract Administration – Legal and Security Issues”. The purpose of this paper is to present a review of the literature on the legal and security issues that may arise from electronic contract administration in the construction industry, to explain these issues and risks, and to suggest possible solutions for legally compliant electronic project administration in the construction industry. Information and communication technology (ICT) is increasingly used as an effective means of managing and administering construction projects (Nitithamyong and Skibniewski, 2006, p. 81). The type of technology that may be used ranges from standard e-mail communications through to sophisticated online collaboration platforms. The use of ICT has the potential to provide considerable efficiencies in the administration of construction projects by facilitating the giving of notices, variations to contracts and communications between project participants (Anumba and Ruikar, 2002, p. 270), but there has not yet been an extensive examination of the

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legal and security issues that arise from the use of ICT within the construction industry. Uncertainty about the legal efficacy and security of ICT in project administration has the potential to inhibit the use of these technologies (Nitithamyong and Skibniewski, 2004, p. 505). A range of legal and security issues have been identified in connection with the administration of construction projects within an electronic environment. The key issues that emerge from the literature are: . whether electronic communications can have the effect of varying the contract between the parties; . whether notices under a construction contract can be given electronically; . whether electronic communications meet evidentiary requirements so that they will be admissible in court in the event of a dispute between the parties; and . whether electronic communications and records can be managed in a way that not only satisfies legal document retention and archiving requirements, but also in a manner that facilitates the efficient discovery of documents in the event of litigation. Hassan et al. (2003, p. 1) argue that the effective use of collaboration systems is vital in the construction industry. Increasingly, online collaboration platforms are being adopted in the construction industry as a means of administering construction projects (Taylor, 2005; Nitithamyong and Skibniewski, 2006, p. 81). Accordingly, this paper specifically targets the issues that arise from electronic project administration in the context of online collaboration platforms. Can electronic communications have the effect of varying the contract between the parties? Usually a construction contract will require any variations to the contract to be in writing and may require the writing to be signed. The question that arises is whether an agreement to vary a construction contract constituted wholly by electronic communications will constitute an agreement that is in “writing”, and if relevant, “signed” in accordance with the construction contract? The analysis of whether or not an agreement evidenced only in electronic form can be said to be in “writing” and “signed” will vary depending on the relevant legislation and judicial decisions in the jurisdiction governing the construction contract. Courts in Australia (McGuren v. Simpson [2004] NSWC 35), England (Hall v. Cognos Ltd, Industrial Tribunal Case No. 1803325/97), the USA (Dow Chemical Company v. G.E., 2005 US Dist. LEXIS 40866 (E.D. Mich. 2005)) and Singapore (SM Integrated Transware Pty Ltd v. Schenker Singapore (PTE) Ltd [2005] 2 SLR 651) have readily accepted that electronic communications, such as e-mails, which are available in printed form, satisfy a requirement for a document to be “in writing”. It is unclear, however, whether a document that is available only in electronic form will be granted the same status by a court. Resolution of this question is important to the uptake of electronic collaboration tools, which are premised on keeping all communications between parties in electronic form. Whether a purely electronic document constitutes “writing” may depend upon the meaning of “writing” adopted in the relevant jurisdiction. “Writing” is generally defined to include any mode of representing or reproducing words in a visible form.

Competing arguments have emerged in the literature. Commentators in Australia and Canada have argued that electronic documents fulfil the requirement of writing if they are capable of retrieval and representation in a visible form (Christensen et al., 2002, p. 44; Beale and Griffiths, 2002, pp. 471-2). In the UK, Edwards and Waelde (1997, p. 139) argue that electronic communications stored on a recipient’s computer will not be capable of meeting such a definition as the electronic impulses representing their contents are not visible. Very little judicial consideration of this issue has occurred, mainly due to the fact that electronic communications produced as evidence have been produced in printed form. However, dicta in judicial decisions such as the US case of Bazak International Corp. v. Tarrant Apparel Group, 2005 US Dist. LEXIS 14674 (S.D.N.Y 2005) point to the likelihood that courts will accept that e-mails and other forms of electronic communications are writing, because they are either represented in a visual form or are retained in a tangible form capable of being read (at pp. 383-4). Given the uncertainty on these issues, it will be vital for contracting parties to expressly address the legal status of electronic communications in their contract documents. However, as discussed further below, careful consideration must be given to any such provisions as there may be particular types of communications under the contract, including but not limited to contractual variations, which the parties may still prefer to take place in paper form (Briggs and Brumpton, 2001, p. 30). Can notices under a construction contract be given electronically? Construction contracts typically contain obligations on parties to communicate with one another by way of formal notices given under the contract (Hassan et al., 2004, p. 2). Where the contract requires notices to be given in writing and signed the same considerations as discussed above in relation to contractual variations will apply. It has been suggested that if the parties specifically allow for electronic notices in their contract, then it is likely that the courts will interpret this strictly and hold the parties to their intention (Mallesons, 2003). For example, in the Canadian decision in Kanitz v. Rogers Cable Inc. (2002) 21 BLR (3d) 104, a court held that the plaintiffs were obliged to continually inspect the defendant’s website for updates to a user agreement, as the user agreement made specific provision for this to occur (Mallesons, 2003). If a construction contract does not contain a specific provision for notices to be sent electronically, it is unclear whether in the absence of an express legislative provision, an electronic notice will be found to be valid. If a party is purporting to rely on electronic transaction legislation, such as legislation based upon the UNICITRAL Model Law for Electronic Commerce 1996, an additional issue will be whether the party receiving the notice has consented to service of the notice by electronic means. In light of the importance of contractual notices (and depending on the circumstances of the parties and the security of their communication systems), it has been suggested that as a general rule e-mail should not be used for the delivery of contractual notices, as opposed to day-to-day correspondence (Mallesons, 2003). If the parties wish to contractually avail themselves of effective electronic communications for some, but not all contractual notices, any notices that are intended to remain paper-based should be clearly excluded by appropriate contractual provisions (Briggs and Brumpton, 2001, p. 30).

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To avoid the legal uncertainties about the status of electronic notices, construction contracts should contain clear provisions setting out the parties’ agreement as to how valid notices may be given under the contract. Evidentiary considerations General evidentiary issues The rules as to the admissibility of electronic records as evidence vary, and in some jurisdictions are quite complicated. In common law jurisdictions (those based on the UK legal system, including Australia and Canada) the key issues are whether or not the electronic record will be considered to be hearsay and whether the electronic record produced in court will be considered to be authentic. The hearsay rule applies when the electronic record contains a statement made by a person and the record is sought to be admitted as proof of the truth of the statement. If the record contains a statement made by a person then generally the hearsay rule will mean that the record will not be admissible unless an exception to the hearsay rule applies. Authenticity means that the document is what it purports to be. In civil jurisdictions the hearsay rule does not apply. As a result, any electronic record or communication will be admissible in court (Hassan et al., 2004, p. 2). The key issue in civil jurisdictions will be establishing the authenticity of the electronic record. Hearsay rule The hearsay rule will apply where the electronic record contains a statement made by a person. In that case the record will not be admissible unless it comes within one of the exceptions to the hearsay rule. Accordingly the hearsay rule may impact on the admissibility of e-mails and project records which are used significantly in the construction industry and will be relied upon extensively in construction litigation (Cassimassima and Caplicki, 2003, p. 16). E-mail and project records are likely to be admissible as business records which are usually exempt from the hearsay rule. Where documents are used in evidence to prove the terms of a contract, or that a notice has been given under a contract, the hearsay rule does not apply. Accordingly, such documents will be admissible even in common law jurisdictions. Authenticity Authenticity may impact on whether or not an electronic record is admissible, or if it is admissible, the weight that should be attached to it. While an electronic record may be admissible as evidence, it may be given less weight by the court than its non-electronic equivalent. The court may not necessarily believe or act on the evidence (National Archives of Australia, 2004). The weight that will be given to electronic evidence will be dependant upon the security and management of the electronic storage system (Department of Public Works and Services, 2000, p. 26). The key issue is whether or not the integrity of the record can be established, i.e. whether the document produced in court is the same as the original document. Doubts can arise as to the integrity of electronic records because they may be easily altered and such alterations may not be detectable. The reliability of electronic data may be impacted by viruses, data corruption, hackers and computer malfunctions (Laryea, 1999). Thompson (2004, p. 133) argues that an e-mail that is insecure in the

sense that it is not authenticated and not encrypted is likely to have little or no probative value. Consideration should also be given as to whether the integrity of the metadata associated with an electronic record is guaranteed. Metadata may include information such as the origin and date of creation of the electronic record. The metadata may reveal critical information without which the evidentiary value of the electronic record is reduced (Williams, 2005). Other evidentiary issues Apart from the admissibility and reliability of electronic records, other evidentiary issues identified by the literature are: . How can the source of an electronic document be established? Authentication of the origin of a document is particularly an issue in relation to e-mail where it is necessary to prove that the e-mail was actually sent by the purported author (Mallesons, 2003). . How may the time of dispatch and receipt of an electronic communication be proved? Computer clocks may be inaccurate or may be manually altered and accordingly, there is no guarantee that the recorded date of a document’s creation or communication is accurate (Department of Public Works and Services, 2000, p. 44). Document retention and archiving requirements Obligations to retain and archive electronic records are found in various legislative requirements. In addition, in most cases organisations should keep electronic records for the limitation period (usually at least six years in the case of contract claims in Australia and the UK) to defend or bring proceedings in relation to breach of contract or possible tort claims arising from the construction project. The literature reveals that the key technological issues regarding the retention of electronic records are: . Durability of storage media – A potential problem in storing records electronically is that the storage medium may break down over time. The most common medium for archiving electronic records is the CD ROM format which is considered more resistant to degradation than magnetic tapes and disks (National Office for the Information Economy, 2002, p. 52). Environmental factors such as light, humidity and magnetic fields may also affect the durability of the storage medium (National Office for the Information Economy, 2002, p. 52). . Readability of records – As technology changes it may be impossible to access documents stored on an outdated storage device. For example, back up storage tapes previously used larger spooling devices and older tape backups are not readable without specialised equipment (White, 2001, p. 46). Accordingly, good maintenance procedures are required to ensure that both the hardware and software by which electronic records are stored do not become superseded. Generally, parties will not have satisfied their obligation to preserve records if the mechanism on which it is stored has broken down or if the record is saved in a format that is no longer able to be read by contemporary computer systems.

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Discovery Obligation to make discovery of electronic records In common law jurisdictions parties are required to disclose relevant documents after commencement of a claim and prior to the trial. The aim of disclosure is to provide parties to litigation with access, prior to trial, to all relevant documentary evidence in each other’s possession (White, 2001, p. 47). Each party produces a list of documents in its possession verified by affidavit and must produce the documents for the other party’s inspection unless they can claim privilege (White, 2001, p. 47). Construction projects generate large numbers of project records that are relevant to litigation and which must be disclosed. In England and Wales the process is known as disclosure (Civil Procedure Rules 1998 Part 31) and in jurisdictions such as Australia, New Zealand, Canada and the USA it is known as discovery. The following discussion is based primarily on the relevant law in Australia with examples taken from other jurisdictions. Retrievability and identifiability The discovery process in relation to electronic records may be complex and expensive in light of the quantity and variety of electronic records that may be discoverable (White, 2001, p. 46). Electronic records may be stored on a variety of devices including the author’s computer hard drive, the file server and router and the recipient’s hard drive as well as on any back-up media, laptops, home computers, personal digital assistants and removable storage devices such as CD ROMs (Naismith, 2003, p. 188). Some copies of electronic records may be created by computers without the knowledge of the operator, and these documents may not be recoverable without significant technical expertise. There is an obligation to discover all copies of documents; therefore, all of these multiple versions of electronic records will be discoverable (White, 2001, p. 46). As a result, compliance with electronic discovery obligations can be expensive and time-consuming. It is therefore essential that a party’s system for management of electronic records enables documents to be easily identified and retrieved. It is also advisable that where there is an electronic records management system in place, employees should be trained to use that system rather than relying on alternatives such as personal e-mail or file directories. Recovery of deleted documents If electronic records have been deleted in the usual course they may not be discoverable. However, where deleted documents are retrievable because the data itself has not yet been deleted from the computer or is still available on back-up storage media, then those documents are discoverable (Naismith, 2003, p. 188; Givens, 2003/2004, p. 2). If a company routinely deletes its e-mail back up tapes and the tapes are destroyed prior to the company becoming aware of potential litigation, then those documents will be unavailable. If an electronic record is not obtainable from back-up media then the existence of the electronic document should be noted in the list of documents as a record once but no longer in the company’s possession (Gorry, 1997, p. 62). White (2001, p. 49) argues that organisations in litigation prone industries should have established procedures to delete electronically stored documents from back-up media. The purpose of such a policy is to reduce the burden of discovery rather than to destroy possibly incriminating evidence. As discussed below, organisations should beware of falling foul of their obligations to preserve evidence. However, it is unlikely

that records destroyed in accordance with a valid disposal authority would be considered to be destroyed with the intention of spoiling a litigant’s case (National Archives of Australia, 2004).

Duty to preserve evidence In addition to the obligation to make discovery, parties have a duty to preserve information that they know is relevant to ongoing or potential litigation (Naismith, 2003, p. 186). Electronic records can be inadvertently destroyed by normal practices such as routine maintenance. As soon as litigation has commenced parties have a duty not to destroy relevant evidence (White, 2001, p. 48). The duty may also extend to preserving documents even though litigation has not yet commenced. To comply with the duty to preserve evidence, parties have a duty to preserve back-up media, make mirror images of hard drives and implement other steps to ensure that discoverable and relevant documents are preserved (Walters and Wright, 2005). Failure to preserve information relevant to litigation may result in prejudicial orders against a party in relation to costs or factual matters, or in the party being guilty of the tort of spoliation of evidence. Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence, in pending or future litigation (Ballon, 1998, p. 9). The tort of spoliation exists in the USA and Canada (Geiger, 1999), and arguably also in Australia (Naismith, 2003, p. 186). An electronic records management system must include procedures to be followed in the event that litigation is anticipated (Naismith, 2003, p. 187). Such procedures would include the suspension of disposal practices and may also include saving a back-up at the commencement of litigation.

Online collaboration platforms The construction industry has begun to adopt online collaboration platforms as a means of administering construction contracts (Nitithamyong and Skibniewski, 2006, p. 81). An online collaboration platform is an electronic network linking different organisations for the purpose of exchanging information electronically. Documents are stored on an electronic database that contains all the information relevant to the particular project. The database can be accessed by any project participant at any time and from any place (Wilkinson, 2005, p. 7). Different organisations or individuals may have different levels of access to different documents within the database (Briggs and Brumpton, 2001, p. 29). The database is generally maintained by an external service provider who will have a contractual arrangement with at least one of the participants in the project (Kamara and Pan, 2004, p. 57). The use of online collaboration platforms in construction projects can result in significant benefits to industry (Tuma and Ward, 2000; Anumba and Ruikar, 2002, p. 270). Hassan et al. (2004, p. 1) argue that the “[e]ffective use of collaborative systems is vital in the construction industry because of the large number of project participants, often being geographically dispersed”. The literature reveals a number of issues in connection with the use of online collaboration platforms in the construction industry.

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Disruptions to service Disruptions may occur if the service provider is unable to maintain the service due to either technical difficulties or the cessation of the service provider’s business. The agreement with the service provider should contain provisions regarding times when the system may be unavailable to users and the notification that is required to be given to users in the event of unscheduled down-time. The agreement should also be clear as to what will happen if the project extranet crashes (Wilkinson, 2005, p. 115). Project participants should consider whether their interruption to business insurance policy covers them for liability in the event that they suffer loss as a result of the collaboration platform being unavailable (Berning and Diveley-Coyne, 2000). The agreement between the service provider and the customer should include provisions that apply in the event the service provider becomes insolvent. These may include a right to transfer the contract to an alternative service provider (Wilkinson, 2005, p. 117). Contractual arrangements Agreement between the service provider and customer. The agreement between the service provider and the customer should contain provisions including (Wilkinson, 2005, p. 111): . the grant of a licence to the customer to access and use the collaboration service in relation to the project; . the parameters governing the use of project data by the service provider and the project participants; . the terms of the end-user licence agreements that will be entered into between the service provider and the other project participants; . ownership of copyright in the collaboration platform technology; . the service provider’s use of the customer’s branding and data; . indemnification of the service provider against unauthorised use of the collaboration platform; . confidentiality, including the security of user names and passwords; . the termination of the project including storage of data when the project is complete; . any limitations upon the service provider’s liabilities; and . the levels of service to be provided by the service provider including specifications as to security, backup systems, integrity of data, audit trails, access controls, technical specifications, system availability, software upgrades, customer support and end-user training. End user licence agreement. Ideally, the agreements entered into between the service provider and the various project participants should be identical and there is a strong argument that such an agreement should be annexed to contracts appointing any consultants who will use the collaboration platform (Wilkinson, 2005, p. 111). The end user licence agreements should include provisions similar to those contained in the agreement between the service provider and the customer (Wilkinson, 2005, p. 116).

Agreement between project participants. The contract between the head contractor and any sub-contractors who will use the collaboration platform should also contain specific provisions to take into account the electronic management of the construction project. Where a shared database is used for the storage of documents such as plans, there will be a greater possibility for there to be intellectual property infringements. As a consequence, the contract should deal with issues of design copyright, database ownership, confidentiality and commercial advantage (Briggs and Brumpton, 2001, pp. 30-1). The contract should also include a provision that electronic records that comply with specified archiving and authentication procedures are deemed to be admissible as evidence and prima facie accurate (Reed, 2001, p. 91). Project protocols The service provider should establish a project protocol document setting out the rules of operation for project participants working on the collaboration platform (Wilkinson, 2005, pp. 114-5). The project protocol document sets out common protocols describing how users publish, retrieve and manage information. The ownership of documents and intellectual property Architects and designers may be concerned that their intellectual property rights in drawings are more likely to be infringed where they are submitted in their original electronic format and stored on the collaboration platform. Practical means of protecting copyright in drawings are to (Wilkinson, 2005, p. 121): . include a disclaimer and statement of permitted use of all drawings; . include the architect’s name and logo and copyright statement on all drawings; and . watermark the drawings with the architect’s name or logo. Contracts should also include explicit confidentiality and copyright licensing provisions. Contracts with designers usually provide that the designer retains copyright in the design and grants a licence to the client and other project participants to use the design in relation to the project (Wilkinson, 2005, p. 121). Even if the contract does not contain such a licence, there would be an implied licence to use the plans for the purposes of the project (Gruzman Pty Ltd v. Percy Marks Pty Ltd (1989) 16 IPR 87). The use of a collaboration platform would not normally change the legal position with regard to the ownership of designs. Wilkinson (2005, p. 121) notes, however, that it is possible that if designs are amended extensively by online collaboration it may be that the authorship of the design can no longer be said to rest with the original designer. Contracts should include provisions to deal with this possibility. Archiving Upon completion of the construction project the database may continue as an online facility which continues to be able to be updated. In this case the software would also continue to be updated so that the customer need not be concerned with the continued readability and availability of the data (Wilkinson, 2005, p. 122). Alternatively, the data can be stored in an off-line archive. In this case it may also be possible to produce a

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copy of the project for project participants on CD ROM or DVD (Wilkinson, 2005, p. 122). The parties should agree contractually before the project begins how the project data will be archived and what data will remain available to each project participant (Berning and Diveley-Coyne, 2000). Evidentiary considerations and audit trails The evidentiary considerations that arise will vary depending upon the evidentiary requirements in the relevant jurisdiction. Particular issues in relation to collaboration platforms are: . The service provider should ensure that a rigorous audit trail is kept logging the time of creation of a document, by whom it was created, when it is sent and received and when and by whom changes to the document are made (Wilkinson, 2005, p. 119). . The collaboration platform must ensure that the integrity of the electronic records can be proven so that a court can be satisfied that an electronic record produced in court is unaltered from the original document. Compliance with recognised codes of practice and standards dealing with electronic record keeping would assist in satisfying the court that the integrity of the electronic records has been maintained (Wilkinson, 2005, p. 110). . Where a collaboration platform is used, the cost and time involved in the document discovery process in the event of a dispute can be significantly reduced (Wilkinson, 2005, p. 119). This is because a complete record of the construction project is maintained by the collaboration platform rather than documents being stored in various formats (paper and electronic) and in various locations. This advantage will be lost if participants in the project also use alternative means of communication and document storage such as private e-mail and paper documents. Security One of the most serious concerns that the construction industry has in relation to the use of collaboration platforms is the security of confidential information that is made available via the platform (Berning and Diveley-Coyne, 2000). To alleviate concerns about the security of data, web collaboration platforms should be designed so that parties have limited access to data, depending on their role within the project (Berning and Diveley-Coyne, 2000). The rights to view and alter data should be controlled by an access control system that involves the identification, authentication and authorisation of the user. The type of access control system used will depend on the level of security required. Alternatively an application may use Extensible Access Control Markup Language (XACML). When XACML is used, where organisations use browser-based access to portals that aggregate resources such as web pages, applications and services, the server must determine whether the client is authorised to use a particular resource. A further issue arises in keeping the data secure from unauthorised access whether by a party to the project or an outsider. A security policy determines who will have access to different types of data and whether or not they have a right to alter the data. The method by which the security policy is implemented is referred to as a security model (Gollmann, 1999).

It is recommended that in the context of electronic contracting, one or more security models be used which ensure both the integrity of data and confidentiality between different projects with which an organisation is involved. Ensuring the use of collaboration platforms While it is apparent that there are several advantages to industry in the use of collaboration platforms in construction contract administration, there is a strong resistance from industry participants to adopt these new technologies in their full capacity, and to change how work has traditionally been done in the industry (Becerik, 2004, p. 1). If participants use alternative communication and storage methods then the discovery benefits that flow from the use of a collaboration platform will be lost. Accordingly, it is essential that project participants adopt clear policies in relation to the types of communications and documents for which the collaboration platform should be used and that staff members are encouraged to use the collaboration platform in accordance with those policies. It may be possible to include a provision in agreements between the head contractor and subcontractors requiring that the collaboration platform be used for all communications between the parties (Wilkinson, 2005, p. 111). However, as noted above, any contractual notice provisions would need to be carefully drafted to ensure that they accurately reflect the parties’ intentions on the use and validity of electronic communications. Conclusion This purpose of this paper was to review the literature on the legal and security issues that may arise from electronic contract administration in the construction industry. It has explained the relevant legal issues and risks and suggested possible solutions for legally compliant electronic project administration in the construction industry. While the use of ICT in the management of construction projects can lead to considerable efficiencies and cost savings, our research has revealed that a range of legal and security issues may arise. It is essential that the evidentiary value of electronic records be maintained and that a document management system is used that facilitates the retention and retrievability of electronic records to satisfy legal and discovery requirements. Contractual documents should address the use of electronic communications and other ICT project management tools so that uncertainty does not arise as a result of their use. Where an online collaboration platform is used as the contract administration tool, the additional issues raised are the contractual arrangements between the parties, including any third-party service provider, the ownership of intellectual property, the security of the platform and practical considerations relating to the extent to which the platform is used by the parties. It is apparent that if the uncertainties associated with electronic contracting remain unresolved, then the practical consequences for contracting parties may be serious. On a more general level, these uncertainties will contribute to a reduced willingness by business to take advantage of modern communication technologies. Our research has formed the basis of a case study into the use of a commercially provided online collaboration platform by a major Australian construction company in a significant infrastructure project and will inform a further report for the CRC CI on the legal and

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security issues in electronic project administration in the construction industry. The research will contribute to advanced knowledge of these issues by industry partners in the CRC CI “Electronic Contract Administration – Legal and Security Issues” project. References Anumba, C.J. and Ruikar, K. (2002), “Electronic commerce in construction – trends and prospects”, Automation in Construction, Vol. 11, pp. 265-75. Ballon, I.C. (1998), “How companies can reduce the costs and risks associated with electronic discovery”, The Computer Lawyer, Vol. 15 No. 7, pp. 8-13. Beale, H. and Griffiths, L. (2002), “Electronic commerce: formal requirements in commercial transactions”, Lloyd’s Maritime and Commercial Law Quarterly, Part 4, pp. 467-84. Becerik, B. (2004), “Critical enhancements for improving the adoption of online project management technology”, PMI Global Congress Proceedings – North America, Anaheim, CA, 23-26 October. Berning, P.W. and Diveley-Coyne, S. (2000), “E-commerce and the construction industry: the revolution is here”, available at: www.constructionweblinks.com/Resources/ Industry_Reports__Newsletters/Oct_2_2000/e-commerce.htm (accessed 15 December 2005). Briggs, I. and Brumpton, S. (2001), “Embrace e-construction with care!”, Australian Construction Law Bulletin, Vol. 13 No. 4, pp. 25-31. Casamassima, T.J. and Caplicki, E.V. (2003), “Electronic evidence at trial: the admissibility of project records, e-mail and internet websites”, The Construction Lawyer, Vol. 23 No. 3, pp. 13-49. Christensen, S., Duncan, W. and Low, R. (2002), “Moving Queensland property transactions to the digital age: can writing and signature requirements be fulfilled electronically?”, available at: www.law.qut.edu.au/files/digital.pdf (accessed 6 December 2005). Department of Public Works and Services (2000), “Risk management in electronic procurement”, Department of Public Works and Services New South Wales, available at: www.cpsc.nsw. gov.au/e-procurement/docs/Risk-Chapter2.pdf (accessed 7 December 2005). Edwards, L. and Waelde, C. (Eds) (1997), Law and the Internet: Regulating Cyberspace, Hart Publishing, Oxford. Geiger, D.R. (1999), “Failure to preserve email and discovery”, Internet Law Bulletin, Vol. 2 No. 6, p. 81. Givens, J.S. (2003/2004), “The admissibility of electronic evidence at trial: courtroom admissibility standards”, Cumberland Law Review, Vol. 34 No. 1, pp. 95-126. Gollmann, D. (1999), Computer Security, Wiley, New York, NY. Gorry, S. (1997), “Electronic records and the Evidence Act”, Australian Company Secretary, Vol. 49 No. 2, pp. 60-3. Hassan, T.M., Shelbourn, M.A. and Carter, C.D. (2003), “Collaboration in construction: legal and contractual issues in ICT application”, Loughborough University, Loughborough. Hassan, T.M., Shelbourn, M.A. and Carter, C.D. (2004), “Legal and contractual framework for the virtual organisation”, Virtual Organisations, Systems and Practices, Springer Science, available at http://e-pub.uni-weimar.de/volltexte/2004/206/pdf/icccbe-x_257.pdf (accessed 8 December 2006). Kamara, J. and Pan, D.Y.H. (2004), “Virtual collaborative design”, Construction Information Quarterly, Vol. 6 No. 2, pp. 56-61.

Laryea, E.T. (1999), “The evidential status of electronic data”, National Law Review, No. 3, p. 6. Mallesons (2003), “Email and contractual notices”, available at: www.mallesons.com/ search-hithighlight.cfm?hitURL ¼ /publications/Asian_Projects_and_Construction_Update/ 6497970W.htm&keyword ¼ electronic%20transactions%20act (accessed 4 May 2006). Naismith, P.G. (2003), “The discovery of electronic evidence”, Journal of Judicial Administration, Vol. 12 No. 4, pp. 180-201. National Archives of Australia (2004), “Digital recordkeeping – guidelines for creating, managing and preserving digital records (exposure draft May 2004)”, available at: www.naa.gov.au/ recordkeeping/er/guidelines/DigitalRecordkeeping.pdf (accessed 19 December 2005). National Office for the Information Economy (2002), “National Electronic Authentication Council report on liability and other legal issues in the use of PKI digital certificates”, available at: www.security.iia.net.au/downloads/pki_legal_report_may2002.pdf (accessed 28 February 2007). Nitithamyong, P. and Skibniewski, M.J. (2004), “Web-based construction project management systems: how to make them successful?”, Automation in Construction, Vol. 13 No. 1, pp. 491-506. Nitithamyong, P. and Skibniewski, M.J. (2006), “Success/failure factors and performance measures of web-based construction project management systems: professionals’ viewpoint”, Journal of Construction Engineering and Management, Vol. 132 No. 1, pp. 80-7. Reed, C. (2001), “Legally binding electronic documents: digital signatures and authentication”, The International Lawyer, Vol. 35 No. 1, pp. 89-106. Taylor, C. (2005), “Web-based collaboration tools for the construction industry: the John Holland experience”, paper presented at CRC CI International Conference, Surfers Paradise, 25-27 October. Thompson, S. (2004), “E-commerce, e-security and contracting”, Australian Business Law Review, Vol. 32 No. 2, pp. 132-9. Tuma, S.E. and Ward, C.R. (2000), “Contracting over the internet in Texas”, Baylor Law Review, Vol. 52 No. 2, pp. 381-415. Walters, M.D. and Wright, N. (2005), “Electronic evidence update: how to help clients meet their duty to preserve evidence in the computer age”, Washington State Bar News, Vol. 59 No. 7, pp. 16-19. White, S. (2001), “Discovery of electronic documents”, Computers & Law, Vol. 44, pp. 46-50. Wilkinson, P. (2005), Construction Collaboration Technologies: The Extranet Revolution, Taylor & Francis, London. Williams, N. (2005), “Outsourcing considerations for electronic records archiving”, available at: www.ecominfo.net/arts/777_legato_outsourcing.htm (accessed 6 December 2005). Further reading Chan, S. and Leung, N. (2004), “Prototype web-based construction project management system”, Journal of Construction Engineering and Management, Vol. 130 No. 6, pp. 935-43. Corresponding author Judith McNamara can be contacted at: [email protected] To purchase reprints of this article please e-mail: [email protected] Or visit our web site for further details: www.emeraldinsight.com/reprints

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M.M. Tuuli Taysec Construction Ltd (a Taylor Woodrow Company), Accra, Ghana, and

B.K. Baiden and E. Badu Department of Building Technology, Kwame Nkrumah University of Science and Technology, Kumasi, Ghana Abstract Purpose – The enforcement of liquidated and ascertained damages (LADs) can be problematic when the amounts are poorly assessed and there are lapses in the administration of contracts. This paper seeks to investigate the relevance of LAD clauses in construction contracts in Ghana, as well as the methods employed in their assessment and enforcement. Design/methodology/approach – A parallel survey method was adopted. Three sets of similar questionnaires (slightly modified) were administered to professionals in client, consultant and contractor organisations in contract administration roles, to explore their experiences in the assessment and enforcement of LADs. Findings – LADs are not serving their purpose in construction contracts in Ghana. Clients have created situations that render LADs unenforceable. LAD amounts are also not genuine pre-estimates of expected loss to be incurred, as assumptions and guesses rather than genuine calculations on a case-by-case basis are adopted in their assessment. Originality/value – This research indicates that the enforcement of LADs can be enhanced if clients become more diligent in their contractual, mostly financial, obligations. Since a purposive sampling procedure was adopted, the findings and conclusions of this research are only tentative, but nevertheless raise serious issues regarding contract administration practices in Ghana. Keywords Damages, Contracts, Construction industry, Ghana Paper type Research paper

Structural Survey Vol. 25 No. 3/4, 2007 pp. 204-219 q Emerald Group Publishing Limited 0263-080X DOI 10.1108/02630800710772809

Introduction The construction industry in Ghana, like that of many developing countries, plays an important role in the national economy, through its contribution to gross national product and employment. Despite this important role, the industry is still largely inefficient, especially regarding contract management, as characterized by lengthy payment delays, cost and time overruns and poor project implementation (World Bank, 2003). Recent measures, such as the passage of the Public Procurement Law (Act 663, 2003), are signs of change for the better. Key industry players such as clients, contractors and consultants are thus bracing themselves for the challenges of the new era. The authors gratefully acknowledge the members of the Ghana Institution of Surveyors (GhIS) for their generous collaboration and participation in this research survey.

Traditionally, the contractor carries the risk of completing construction works on time. This arises from the responsibility the contractor has for scheduling the work, managing sub-contractors and developing the means and methods of construction (Lynch, 2003). Shortcomings that may result in delay or added costs are thus considered non-excusable (Thomas et al., 1995). These factors make liquidated and ascertained damages (LADs) a common feature in construction contracts. In Ghana, the most common form of contract for building works is the Articles of Agreement and Conditions of Contract for Building Works (1988), commonly called the “Pink Form”. The Pink Form (Ministry of Works and Housing, 1988) provides for the payment of LADs for delays in the completion of works beyond the completion date stipulated in the conditions of contract or a substituted date following the grant of an extension of time (Ministry of Works and Housing, 1988, 1988, Article 18). LAD clauses guarantee that a predetermined amount will be paid to the client in the event of inexcusable project delays for which the contractor is responsible. It therefore reduces costs that will be associated with litigating and proving damages, as the use of lawyers, witnesses and experts to recover losses through a long and costly process is avoided (Loulakis and Santiago, 1997; Lynch, 2003). LAD clauses also provide contractors at the tender stage with a measure of delay risks in the contract so that appropriate provisions can be made in the tender (Rumgay, 2003a). LAD clauses are particularly necessary in construction climates such as in Ghana, where time overruns in construction projects are commonplace. In his study of causes of delays and cost overruns in groundwater projects in Ghana, Frimpong (2000) discovered that 33 out of 47 groundwater projects completed between 1988 and 1998 were delayed, while 38 overran their initial cost estimates. A recent analysis by the World Bank shows that 53 percent of 291 contracts for goods, works and services completed between 1997 and 2002 suffered completion delays (World Bank, 2003). Time and cost overruns are pervasive in the construction industries of many developing countries, and this is reflected in the array of studies aimed at finding the causes, and of mitigating them (e.g. Dlakwa and Culpin, 1990; Mansfield et al., 1994; Assaf et al., 1995; Kaming et al., 1997). The enforcement of the LAD clause in construction contracts in Ghana is problematic partly due to lapses in contract administration practices (cf. Seidu, 2001; World Bank, 2003). Anecdotal evidence also suggests a lack of understanding of the purpose of LADs in construction contracts. The problem is further aggravated by the pervasiveness of delayed payments, perpetuated especially by the major client, the Ghana Government, without any form of compensation to contractors (Addo-Abedi, 1999). Delayed payment without compensation is particularly problematic in two ways. First, it renders the deduction of LADs by clients who perpetuate delayed payments unjustified. Contractors are also generally reluctant to seek redress in courts regarding delayed payments for fear of being blacklisted and denied the chance of participation in future tenders. Second, the lack of express provision for extension of time due to delayed payments creates time at large scenarios (explained later) that render LADs unenforceable. From the foregoing, the following research questions were asked in this study: (1) Is the LAD clause relevant in construction contracts in Ghana? (2) If not, are there viable alternatives to mitigate the shortcomings?

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(3) What methods are employed in the assessment of LADs in Ghana? (4) How are LADs enforced? In the following sections LADs and their assessment methods are explained further in the context of construction contracts. This is followed by a description of the research method employed in this study. The results of the study are then discussed and conclusions drawn, with suggestions for further research. LADs in construction contracts Traditionally, litigation is the route to recovering costs incurred by a client due to late completion. The inclusion of LAD provisions in construction contracts therefore avoids delays inherent in the use of litigation and its associated costs (Thomas et al., 1995; Loulakis and Santiago, 1997; Furst and Ramsey, 2001). The enforcement of such a clause can, however, be problematic and clients must ensure that the LAD amount is not a penalty. For a sum inserted as LAD to be enforceable it must be a genuine pre-estimate of damages. In many building and civil engineering contracts, however, LADs are not a genuine pre-estimate of the damages to be suffered by the client, but are often related to amounts included in previous contracts of a similar nature (Seeley, 1997). The essential differences between LADs and a penalty have become contentious. In the absence of relevant case law in Ghana, cases from English law can be drawn upon to explain LADs since the legal system in Ghana is based on English common law. English common law, equity and statutes of general application were received into the legal system of Ghana through the Courts Ordinance (Cap. 4, section 83) on 24 July 1874 (Uche, 1971; Elias, 1990; Dupont, 2001). The Courts Act of 1971 (section 111) and subsequent constitutions after independence including the current 1992 constitution have all upheld the common law as part of the laws of Ghana (The Constitution of the Republic of Ghana, 1992, Section 11 (1)). Of direct relevance to the discussion here is Dunlop Pneumatic Tyre Co. v. New Garage & Motor Co. Ltd (1915) A.C. 79, a classic in illustrating the differences between LADs and a penalty. In the House of Lords, Lord Dunedin stated: Though the parties to a contract who use the words penalty or liquidated damages may prima facie be supposed to mean what they say, yet the expression used is not conclusive. The court must find out whether the payment stipulated is in truth a penalty or liquidated damages.

Thus, stating explicitly in the contract that the sum is not a penalty, as happened in Kemble v. Farren (1829) All ER 641, does nothing to persuade the courts from determining the true nature of the stipulated payments. Lord Dunedin then differentiated a penalty from LADs, stating: The essence of a penalty is payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage.

He went on further to define a test for identifying what constitutes a penalty: If the sum is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed the breach, it will be regarded as a penalty and unenforceable.

The Society of Chief Quantity Surveyors in Local Government (1993), set up to investigate the procedures adopted for the assessment of LADs on local authority contracts in the UK, concurred with this view and summarised the precedent set by the courts for a valid assessment of damages as follows: . If the parties make a genuine attempt to pre-estimate the loss likely to be suffered, the sum stated will be liquidated damages and not a penalty, irrespective of actual loss. . The sum will be a penalty if the amount is extravagant having regard to the greatest possible loss that could be caused by the breach. In the recent case of Alfred McAlpine Capital Projects Ltd v. Tilebox Ltd (2005) EWHC 281 (TCC), Jackson J made four pertinent observations which further clarify the issue of LADs versus penalty clauses. In this case, Alfred McAlpine applied for a declaration that the LADs specified in their building contract with Tilebox were excessive and thus an unenforceable penalty. In dismissing Alfred McAlpine’s claim, his lordship first referred to two strands of authority, stating: In some cases judges consider whether there is an unconscionable or extravagant disproportion between the damages stipulated in the contract and the true amount of damages likely to be suffered. In other cases the courts consider whether the level of damages stipulated was reasonable.

He then concluded that: A pre-estimate of damages does not have to be right in order to be reasonable. There must be a substantial discrepancy between the level of damages stipulated in the contract and the level of damages which is likely to be suffered before it can be said that the agreed pre-estimate is unreasonable.

Secondly, he observed that: Although many authorities use or echo the phrase “genuine pre-estimate”, the test does not turn upon the genuineness or honesty of the party or parties who made the pre-estimate. The test is primarily an objective one, even though the court has some regard to the thought processes of the parties at the time of contracting.

Thirdly, he argued that there is a predisposition of the courts to uphold contractual terms between two parties of comparable bargaining power and more so where the level of damages for breach is fixed (also see Philips Hong Kong v. Attorney-General of Hong Kong (1993) 61 BLR 41 on this point). Lastly, his lordship observed that there are four case law authorities where LADs were struck down as a penalty, noting that: In each of these four cases there was, in fact, a very wide gulf between (a) the level of damages likely to be suffered, and (b) the level of damages stipulated in the contract.

Essentially then, the issue of what constitutes reasonableness of a pre-estimate borders on the disparity between the stipulated damages and the level of damages which is likely to be suffered if a breach actually occurs. The test of genuineness of a pre-estimate has been clarified, as bordering on objective rather than the honesty of the parties. This case also adds the dimension of the disparity of the bargaining power of the parties and whether a level of damages is fixed as a further test of whether a clause is a penalty or LADs.

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In determining whether an LAD clause is legally enforceable, the US courts apply a three-pronged test: (1) The intent test, which essentially assesses whether the parties intended to liquidate damages in advance of the parties’ acts and words (Farnsworth, 1990; see also Bethlehem Steel Corporation v. City of Chicago (1965) 234 F. Supp. 726). (2) The difficulty test, which places great weight on the ascertainment of the contractual damages regarding the degree of uncertainty involved in the estimate (Corbin, 1964). The greater the degree of difficulty in calculating the likely future damages accurately, the more valid the LAD clause becomes in the eyes of the court and vice versa (see Osceola County, Fl v. Bumble Bee Construction (1985) 479 So.2d 310). (3) The reasonable test, which assesses LAD amount in view of the actual damages suffered due to the breach. Should the court construe the proposed damages as significantly greater than actual damages, then the LAD provision generally is determined to be a penalty and ruled invalid (Corbin, 1964; see also Wise v. United States (1919) 249 U.S. 361). From the foregoing, some similarities can be drawn from English law and the US system regarding LADs and penalties, albeit some differences as well. The intent test of the US system is similar to Jackson J’s observation of the primary test of genuine pre-estimate being an objective one. The reasonableness tests in the two systems are essentially the same. Evidence of the difficulty tests can also be drawn from Clydebank Engineering and Shipbuilding Company Limited v. Don Jose Ramos Ysquierdo-y-Castaneda and Others (1905) AC 6, in which Halsbury LC dismissed the claim that the likely damages were extremely difficult to quantify and may in some scenarios be nil. He expressed the view that the LAD clause served a useful purpose, precisely because the true amount of damages was uncertain and difficult to assess in this case. Different jurisdictions have therefore established standards as to what constitutes LADs and what does not and courts will generally enforce an LAD clause if the amount bears a reasonable relation to the probable loss and the damages are difficult or impossible to determine (Wallace, 1995; Loulakis and Mclaughlin, 2004). LAD amounts For many clients, early completion of a project can have profound effect on to the return on their investments, and the delayed delivery of a project will cause loss of business opportunities and potential profits, or for public projects, create social/public problems (Shen et al., 1999). However, LAD amounts specified in construction contracts must also not be disproportionate so as to over compensate, profit, or unjustly enrich the injured party (Thomas et al., 1995). High LAD amounts increase the reluctance of contractors to bid for projects or increase the contingency amounts in their bids to cover the possibility of paying damages. High LAD amounts compared with the likely damages may also be considered a penalty and render the clause unenforceable. Low LAD amounts on the other hand, also do not fully compensate clients for delays (Thomas et al., 1995). LAD amounts must therefore be reasonable and consistent with the costs that an owner is likely to incur in the event of late completion (Carty, 1995), and the courts will enforce LAD provisions when they are fair and reasonable

estimates of anticipated losses and delays considered inexcusable. There are, however, circumstances when the costs cannot be calculated or the damages are impossible to calculate, and this is particularly the case in non-commercial projects such as public works. The impact on follow-on contracts and loss of interest on the cost of land are examples of cost that are difficult to assess (Society of Chief Quantity Surveyors in Local Government, 1993; Thomas et al., 1995). In such circumstances an arbitrary amount may be selected but such an amount must still be reasonable in the eyes of the courts (Osceola County, Fl v. Bumble Bee Construction (1985) 479 So.2d 310). Indeed, the SCQSLG report highlighted the difficulty in the assessment of LAD amounts and concluded that only the loss of interest on cost of contract work can be genuinely pre-estimated to a high degree of certainty. According to Thomas et al. (1995), typical LAD amount factors include: . lost of revenue or rental value; . user costs, engineering and administrative costs; . additional wages; . moving costs; and . interest and extended management and overhead fees. In addition to the above factors, the Society of Chief Quantity Surveyors in Local Government (1993) suggested that, lost of use of building, lost of business profit, lost of interest on the cost of the land and lost of interest on the cost of contract works should also be taken into account. The calculated LAD amount should then be expressed as a weekly or daily figure for the entire contract. Research method This study was designed to explore the extent to which LAD provisions in construction contracts in Ghana protected clients from contractors’ poor time performance. It also sought to examine the assessment methods of LAD amounts and the enforcement modes in view of the need to balance the adequate protection of clients, while ensuring that contractors are not also penalised by over compensating clients. The methods employed were therefore cognisant of these aims. Data for this research were collected through a questionnaire survey targeting construction professionals practising with construction client (private and public), consultant and contractor organisations, with contract administration roles, in Ghana. A parallel sampling survey method was therefore adopted where three similar questionnaires (slightly modified) were designed, one for professionals in each organisation category to seek specific information. Modifications were generally in terms of reference. For example, on the question of whether the enforcement of LADs has ever been contested, the question for professionals in client and consultant organisations read “Has the enforcement of the LAD clause ever been contested by a contractor?”. That for contractor organisations read “Have you ever contested the enforcement of an LAD clause?”. Judgemental or purposive sampling procedure was employed to ensure that views were solicited from professionals with adequate experience in contract administration practice to obtain meaningful responses. This was partly undertaken at a seminar organised by the Ghana Institution of Surveyors (GhIS) in November 2004.

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Fifty professionals with contract administration roles in client, consultant and contractor organisations were targeted. For many of these organisations in Ghana, contract administration roles are often performed by quantity surveyors. One hundred Certified Quantity Surveyors[1] registered with the Ghana Institution of Surveyors (GhIS) were contacted at this seminar and agreed to participate in this survey, and were duly served copies of the questionnaire. An additional 30 questionnaires were mailed, while 20 electronic version of the questionnaire were emailed to ensure that 50 organisations in each category were covered. The questions sought to establish the extent of awareness and application of LADs in construction contracts in Ghana. Perceptions of the relevance of LAD clauses in construction contracts were also explored and alternatives sought where they were perceived as irrelevant. Questions also sought the methods used to assess LAD amounts, as well as the modes of enforcement. Response Seventeen responses were received from client organisations, 29 consultant organisations responded and 35 responses were received from contractor organisations. Overall, 81 out of the 150 questionnaires administered were returned, representing a response rate of 54 percent. The response distribution is illustrated in Figure 1. The professionals who actually responded to the questionnaires included quantity surveyors, engineers, architects and professionals from non-construction backgrounds. The distribution of the professional affiliation of respondents is illustrated in Figure 2. The average length of practice in contract administration duties was seven years. It is also worth noting that out of the 20 questionnaires sent by e-mail only three were returned. This represents a 15 percent response rate from e-mails. Although this is not very high it indicates the potential of conducting surveys by e-mail in construction research in Ghana, where ICT infrastructure is poorly developed and internet/e-mail services are only available in selected cities. Results and discussion The questionnaire was divided into five sections: (1) general issues; (2) relevance of LADs;

Figure 1. Summary of response

Liquidated damages in Ghana 211 Figure 2. Professional affiliation of respondents

(3) assessment practices; (4) enforcement practices; and (5) alternative suggestions. The results are presented and discussed under these headings as follows. General issues This part of the questionnaire covered demographic information and also sought to determine respondents’ understanding of the basic principles governing the application of LADs in construction contracts. Level of understanding was assessed by asking respondents to select from four options the statement that best describes their opinion of LADs. These options were: (1) “penalty for non-performance”; (2) “payment to client for late completion”; (3) “payment to client for non-performance”; and (4) “agreed amount payable to client for inexcusable late completion”. Adequate understanding was demonstrated if “agreed amount payable to client for inexcusable late completion” was selected. Respondents from client organisations generally demonstrated adequate understanding of the principles of LADs and also indicated that the LAD clause is always part of contracts they commission. The high understanding of LADs in client organisations is not surprising as all the questionnaires were completed by Certified Quantity Surveyors. About 26 percent of the responses from contractor organisations did not demonstrate adequate understanding of LADs, and about 44 percent of these responses were administered by officials who were from non-construction backgrounds. This lack of understanding of the basic principles of LADs may partly explain why most contractors consider the deductions of LADs unjustified. This adds to Eggleston’s (1992) assertion that contractors generally view the deduction of LADs as unjustified, either because of the circumstances in which the contract has been formed or some perceived legal flaws in the contractual provisions for LADs. Responses from

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consultants revealed that only about 14 percent do not understand LADs adequately, but all the organisations have used LADs in their contracts. Relevance of LADs This part of the questionnaire sought respondents’ perception of the relevance of LAD provisions in construction contracts in Ghana. Relevance was assessed by asking respondents directly whether they perceived LADs as relevant or not and whether LAD provisions have been successful in protecting the interest of clients. If LADs were perceived as irrelevant or not protecting clients, reasons were sought. Respondents from private client organisations generally felt that LADs were still relevant and protected their interest. However, this was not the case with respondents from public-sector client organisations. They indicated that although LADs were relevant, prevailing circumstances such as delayed payments without compensation suffered by many contractors on public projects results in some reluctance in the enforcement of the clause when the same contractors are liable for the deduction of LADs. It therefore appears that sympathetic reasons account for the lack of enforcement of LADs by public clients in Ghana. About 86 percent of respondents from consultant organisations felt LADs were relevant. And regarding protection of clients’ interest, about 34 percent felt the client was being protected. There was a similar trend in the results from contractor organisations. About 77 percent agreed that LADs were relevant, and on protection of clients only about 11 percent thought clients were being protected. From the above, therefore, although there seems to be consensus on the relevance of LADs, there appears to be disagreement on whether they are serving their intended purpose. This therefore raises a lot of issues and challenges to professionals and clients, especially public clients, to rethink and propose alternatives to address the situation. It also brings to light the fact that, for LAD clauses to serve clients better (especially public clients), practices regarding delayed payments need to be examined so that LAD clauses can be enforced without fear or favour. Assessment of LAD amounts This section of the questionnaire sought to determine responsibility for the assessment of LAD amounts, what factors are taken into account in the calculation, the assessment methods in use and whether respondents consider LAD amounts as genuine pre-estimates of loss or not. The survey revealed that consultants are usually responsible for the assessment and determination of LAD amounts in consultation with clients. It also emerged that about 14 percent of respondents from contractor organisations surveyed have raised issues in the past, during the contract signing stage, that the LAD amounts in the contracts were too high. On these occasions the LAD amounts were re-assessed and agreed upon before the contracts were signed. This is a very useful intervention that can prevent future disputes regarding the enforcement of LADs. Factors for calculating LAD amounts will differ for a number of reasons. The factors will depend on the client type, the project and the use to which the facility is being commissioned. In responding to what factors should be considered in calculating LAD amounts the opinions of respondents were therefore unsurprisingly varied. The results are summarised in Table I.

Factors Lost rent Lost profit Lost of use of facility Professional fees Transaction cost Interest on cost of land Administrative cost Statutory fees Interest on cost of works

Contractors Number Percent 22 9 31 9 9 4 9 9 4

63 26 89 26 26 11 26 26 11

Consultants Number Percent 20 16 25 5 4 – 2 4 2

69 55 86 17 14 – 7 14 7

Clients Number Percent 17 13 17 9 13 9 9 13 9

100 76 100 53 76 53 53 76 53

Loss of use of the building/facility and loss of rent emerged as the most recurrent factors, often considered in LAD amount calculations across the three groups surveyed. It can also be inferred that clients tended to include every cost factor in their calculations. As shown in Table I, on average about 72 percent of clients indicated they include all the factors listed in their calculations of LAD amounts. Clients therefore appear to adopt a conservative attitude towards cost. It is also interesting that, although the loss of interest on cost of works was considered the only factor capable of being genuinely pre-estimated to a degree of certainty by the SCQSLG report, it emerged the least recurrent factor considered in calculating LAD amounts. Four methods of assessing LAD amounts emerged which were often employed by the respondents from consultant organisations surveyed. These methods were: (1) use of LAD amounts from previous contracts (34 percent); (2) rule of thumb/guesses from experience (31 percent); (3) percentage of contract sum (24 percent); and (4) SCQSLQ method/first principle calculations (10 percent). LAD amounts from previous contracts and rule of thumb methods are widely used (about 66 percent) in assessing LAD amounts. These two methods are very much similar, and considering that about 32 percent of the previous contract’s LAD amounts are themselves guesses, they end up the same. Expressing LADs as a percentage of contract sum was also relatively popular (about 24 percent). This method is only partly acceptable if the amount was adequately assessed from first principles before expressing as a percentage of the contract sum. However, the variable nature of the contract sum in many projects renders this method unsuitable as variations can lead to an increase or decrease in the contract sum and hence the LAD amount, which could then be an unrealistic reflection of any conceivable loss. The three most popular methods of assessing LADs as shown above are thus inappropriate and are a recipe for disputes in the enforcement of LADs. They also predispose clients to greater risks in the event that they suffer delays and the LAD amount proves inadequate. Examples exist, though isolated, where contractors are faced with the option of accelerating work to finish on time or finishing late and paying LADs. On such occasions contractors are known to carry out some assessments to ascertain if it is cheaper to finish late and pay LADs or to accelerate the works.

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Contractors will then opt to finish late and pay LADs if the amount proves to have been highly underestimated. Just as the client is entitled to deduct LADs even when no loss has been suffered (as shown in BFI Group of Companies Ltd v. DCB Integration Systems Ltd (1987) CILL 348), so will he be obliged to deduct the same even when a greater actual loss has been suffered. Thus in Temloc v. Errill Properties (1987) 39 BLR 30, where the LADs where stated as nil, the court nevertheless held that the stated damages were exhaustive of the damages due the claimant. Indeed, no inquiry into the actual loss suffered is necessary, unless the contractor makes a claim that the agreed amount is unenforceable for being a penalty or for any such reasons that may be cited (Furst and Ramsey, 2001). If the contractor succeeds in establishing such a claim, the client’s only remedy will be to resort to the courts to prove his entitlement to general damages or unliquidated damages for the period of culpable delay (Furst and Ramsey, 2001; Rumgay, 2003b). Only about 10 percent of respondents were aware of the existence of the SCQSLG method (Society of Chief Quantity Surveyors in Local Government, 1993) for calculating LADs and actually use it or calculate LADs from first principles. The use of the SCQSLG or first-principles methods of assessing LADs must therefore be encouraged as it currently receives the least patronage. Consultants must be encouraged to calculate the LAD amounts on a case-by-case basis with reference to the expected damages that may be incurred in the event of a delay in completion. Indeed, in J.F. Finnegan v. Community Housing (1993) 65 BLR 103, a pre-estimate which was the product of a formula was held as a reasonable estimate of likely damages. The use of a formula is a particularly sensible approach where it is obvious that substantial loss will be incurred in the event of a delay, but where it is virtually impossible to calculate precisely in advance such loss (Chappell et al., 2005). It is therefore not surprising that respondents to this survey admitted that LAD amounts in contracts are not genuine pre-estimates of loss to be suffered if late completion occurs. Only about 7 percent of respondents from consultant organisations and 18 percent from client organisations thought they are genuine pre-estimates. No respondent from contractor organisations surveyed considered LAD amounts as genuine pre-estimates. Enforcement practices When delay in completion occurs and it is certified that the delay is due to non-excusable reasons on the part of the contractor, the payment of LADs becomes due. The Pink Form (Ministry of Works and Housing, 1988) empowers the client in such circumstances to deduct the LADs from any moneys payable to the contractor under the contract (Ministry of Works and Housing, 1988, Article 18). This method of recovery was confirmed in the case of Token Construction Co. Ltd v. Charlton Estate Ltd (1973) 1 BLR 48 CA and is applicable where the contract expressly gives that right, and this is the case under the Pink Form in Ghana. Clause 18 of the Pink Form (Ministry of Works and Housing, 1988) states (inter alia) that when LADs become due: . . . the contractor shall pay or allow to the employer a sum calculated at the rate stated as Liquidated and Ascertained Damages [. . .] for the period during which the said work shall so remain or have remained incomplete, and the employer may deduct such damages from any moneys otherwise payable to the contractor under the contract.

Respondents from consultant and client organisations were asked if they have had to enforce LADs. If they did not enforce on any occasion they were due, reasons were sought. Respondents from contractor organisations were also asked if their organisations have been affected by LADs, and if they contested the enforcement on any occasion. The grounds for any contest were sought. All the respondents were also asked if they consider LADs as contentious in Ghana or not. About 89 percent of respondents from consultant and client organisations combined, have had occasion to enforce LADs. They also indicated that generally the success rate of enforcement of LADs was 1 in 15 cases. This low success rate was attributed to the high rate of success by contractors in contesting the enforcement of the clause. Contractors contested LADs on the grounds of insufficient or no extension of time, mostly due to delayed payments or late possession of site. This brings to the fore the issue of time at large in the enforcement of LADs. According to Rumgay (2003a, p. 67) this “occurs where there is no agreed time for completion or where a previously agreed time has been rendered inoperable usually by there being no express provision to extend time as a consequence of prevention by the employer”. Under the Pink Form (Ministry of Works and Housing, 1988), no express provision exists for extension of time for delays attributable to delayed payment or for late possession of site. Contractors can therefore usually contest the enforcement of LADs on the basis of time at large in the event that any of these occur. The validity of enforcing the LAD clause under conditions of time at large particularly arose in Peak Construction (Liverpool) v. McKinney Foundations Ltd (1970) 1 BLR 111, and Phillimore LJ in his judgment referred to the implicit link between an LAD provision and the extension of time provision: . . . when the parties agree that if there is delay the contractor is to be liable, they envisage that the delay shall be the fault of the contractor [. . .] if part of the delay is due to the fault of the employer, then the clause becomes unworkable if only because there is no fixed date from which to calculate that for which the contractor is responsible [. . .] the problem can be cured if allowance can be made for that part of the delay caused by the actions of the employer [. . .] If there is a clause which provides for extension of the contractor’s time in the circumstances which happen, and if the appropriate extension is certified by the architect, then the delay due to the fault of the contractor is disentangled from that due to the fault of the employer and a date is fixed from which the liquidated damages can be calculated.

Therefore to guarantee his right to LADs the client must allow the contractor extensions of time for all delays caused by him, otherwise the contractor can have the LAD clause declared invalid or unenforceable on the basis of time at large (Lynch, 2003). A related case law authority is Rapid Building Group Ltd v. Ealing Family Housing Association Ltd (1984) 29 BLR 5, where possession of site was delayed beyond the due date. The works were subsequently delayed and the client deducted LADs for the period of delay. Since the form of contract in use was JCT 1963, which had no provision for extension of time due to the employer’s failure to give possession, the court held that the employer was not entitled to the deduction of LADs. A similar judgment on the basis of time at large was also made in the case of Inserco v. Honeywell Control Systems Ltd (1996) EWCA Civ 959. Two other reasons came up for the non-enforcement of LADs when they are due. It was argued that culturally many Ghanaians are unable to separate business from personal relationships. The extended family system in Ghana makes it possible to trace

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or prove some kind of relation between people, and this weakens the ability to be firm in the enforcement of laws. It must be emphasised, however, that for businesses to survive such “business culture” must stop. The second reason, which is close to the first, is that some “sympathetic clients” have often ignored or overlooked LADs when they are due. When respondents were asked whether they considered LADs as contentious, about 94 percent of respondents from client organisations said that they were. About 96 percent from consultant organisations also agreed, as did 97 percent from contractor organisations. Although LADs are perceived as so contentious, no contractor surveyed has ever been compelled to go to court to contest their enforcement and no client sought the assistance of the courts in their enforcement. An interview with the Judicial Secretary of the High Court in Accra, Ghana, confirmed that there were no records, at least within the last 15 years, of any cases regarding enforcement of LADs that have come before the courts. The absence of court cases, especially from contractors, may be attributed to the fact that contractors are mindful of being blacklisted as litigants by clients and excluded from future contracts. Indeed, construction reviews on Ghana reveal the fear of losing tendering opportunities as being the primary reason claims are not pursued in court. The recent setting up of the Ghana Arbitration Centre to promote the use of alternative dispute resolution mechanisms may encourage the use of arbitration and mediation to resolve some of the contentious issues in the construction industry in an amicable manner. Alternatives Respondents were asked to suggest alternatives that can address the deficiencies and difficulties associated with the application of LADs in the Ghanaian construction industry or interventions to strengthen what is in place. The following were the suggested interventions most recurrent in the responses: . commitment by clients to prompt payment to contractors (66 percent); . establishment of a form of security, insurance or guarantee for the payment of LADs (52 percent); and . an adequate performance bond to protect clients against deficient work (49 percent). LADs are only due to clients if delays in completion are attributable to contractors and are non-excusable. As long as clients continue to fail woefully in their contractual duty of paying contractors on time they will not be due any LADs for delays under the Pink Form contract. In Ghana, it is commonplace to find projects funded by the central government in arrears of several years, and the possibility of the affected contractors receiving interest on those payments is unlikely (cf. Owusu, 1987; Seidu, 2001; Stiedl and Tajgman, 2003). It will be unjustifiable for such clients to deduct LADs from contractors who are victims of delayed payments from the same clients. In such instances, clients would also grapple with the issue of time at large discussed earlier on, in the absence of express provisions for extension of time for delayed payments or late possession of site in the contract forms they employ. The suggestion of the provision of a security or insurance for LADs is justified for a number of reasons. LADs cannot be deducted in advance of their due date even if it is apparent that completion will not be achieved on time (Eggleston, 1992). The value of

completed works together with retention and any other moneys payable to contractors are sometimes insufficient to cover LAD deductions at their due date. A security or insurance would therefore guarantee the payment of LADs if they are due and the contractor has no outstanding moneys with the client to cover them. A cue could be taken from the construction industry in Singapore where a somewhat similar security of payment scheme operates that guarantees contractors payment for work done through the Security of Payment Act that became law in 2005 (Building & Construction Authority, 2005). On the matter of an adequate performance bond, it is argued that merely completing works late or the possibility of delay occurring may not be sufficient grounds to invoke the performance bond. This is because a performance bond is based on the broader picture of performance in terms of executing the contract according to plans and specifications, within the time allowed and at the agreed price (Russell, 2000). Many clients are also not comfortable with the process of invoking the performance bond, which may include determining the contract and re-awarding it to another contractor. The use of performance bond in place of the LAD clause is thus considered unsuitable. Conclusions Clients have created situations that render LADs unenforceable. In particular the pervasiveness of delayed payments without monetary compensation or extension of time creates time at large situations that render LADs unenforceable. LADs have therefore become ineffective in their traditional role of protecting clients from inexcusable delays by contractors since clients, especially public clients, are reluctant to deduct LADs even when they are due on equity and sympathetic grounds. LADs can however be effectively enforced if clients become more diligent in their contractual, mostly financial, obligations. A specific clause for extension of time for delayed payments and late possession of site may also suffice as a remedy in contracts, by way of an amendment to the Pink Form. Although most respondents generally demonstrated adequate understanding of the principles governing LADs, there is a lack of awareness and use of proven methods for calculating LADs such as the SCQSLG method or first principle calculations, especially among the respondents from consultant organisations surveyed. This is confirmed by responses that LADs are not genuine pre-estimates of possible losses. Insurance or security bond for LADs is a viable alternative in guaranteeing clients that, if they are genuinely due, LADs payments will be met and this should be pursued by the industry. As long as the law does not permit deduction of LADs in advance a form of security bond for LADs appears to be a viable means of guaranteeing payment of LADs. This research has highlighted some lapses in contract administration practices in Ghana and has thus set the pace for further research in this area. Since a purposive sampling procedure was adopted it will be interesting to conduct a nationwide survey to establish how widespread the lack of understanding of LADs is and also to establish the extent to which guesses rather than calculation of LAD amounts on a case-by-case basis is used. The suggestion for the use of some form of security bond for LADs is an area that could be explored in future research to test its practical viability in construction contracts in Ghana.

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Note 1. Certified members of the Ghana Institution of Surveyors have a recognised degree or equivalent and a minimum of three years of relevant industry experience under the supervision of a senior surveyor of the status of “Fellow” of the Institution. They are also certified after the passing of a qualifying exam conducted by the Institution.

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References Addo-Abedi, F.Y. (1999), “Sustainable development of the local contracting industry in a developing country”, Proceedings of the 2nd International Conference on Construction Industry Development, and 1st Conference of CIB TG 29 on Construction in Developing Countries, Singapore. Assaf, S.A., Al-Khalil, M. and Al-Hazmi, M. (1995), “Causes of delay in large building construction projects”, Journal of Management in Engineering, Vol. 11, pp. 45-50. Building & Construction Authority (2005), “Security of payment legislation”, Building & Construction Authority, available at: www.bca.gov.sg/securitypayment/security_ payment_legislation.html (accessed 25 April 2006). Carty, J.G. (1995), “Construction”, Journal of Construction Engineering and Management, Vol. 121, pp. 319-28. Chappell, D., Powell-Smith, V. and Sims, J. (2005), Building Contract Claims, 4th ed., Blackwell, Oxford. Corbin, A.L. (1964), Corbin on Contracts: A Comprehensive Treatise on the Working Rules of Contract Law, West Publishing Co., St Paul, MN. Dlakwa, M.M. and Culpin, M.F. (1990), “Reasons for overrun in public sector construction projects in Nigeria”, International Journal of Project Management, Vol. 8, pp. 237-41. Dupont, J. (2001), The Common Law Abroad: Constitutional and Legal Legacy of the British Empire, F.B. Rothman Publications, Littleton, CO. Eggleston, B. (1992), Liquidated Damages and Extensions of Time in Construction Contracts, Blackwell Scientific, Oxford. Elias, T.O. (1990), Judicial Process in the Newer Commonwealth, University of Lagos Press, Lagos. Farnsworth, A. (1990), Contracts, Little Brown, Boston, MA. Frimpong, Y. (2000), “Project management in developing countries: causes of delay and cost overruns in construction of groundwater projects”, unpublished Master’s research project, University of Technology, Sydney. Furst, S. and Ramsey, V. (2001), Keating on Building Contracts, 7th ed., Sweet & Maxwell, London. Kaming, P.F., Olomoliaye, P.O., Holt, G.D. and Harris, F.C. (1997), “Factors influencing construction time and cost overruns on high-rise projects in Indonesia”, Construction Management Economics, Vol. 15, pp. 83-9. Loulakis, M.C. and Mclaughlin, L.P. (2004), “Enforcing liquidated damages: how much is too much?”, Civil Engineering, Vol. 74, p. 96. Loulakis, M.C. and Santiago, S.J. (1997), “Successfully challenging liquidated damages claim”, Civil Engineering, Vol. 67, p. 35. Lynch, B.G. (2003), “The employer’s risk?”, Building Journal Hong Kong, China, June, pp. 66-9. Mansfield, N.R., Ugwu, O.O. and Doran, T. (1994), “Causes of delay and cost overruns in Nigeria construction projects”, International Journal of Project Management, Vol. 12, pp. 254-60.

Ministry of Works and Housing (1988), Articles of Agreement and Conditions of Contract for Building Works-Ghana (Pink Form ), 5th ed., Assembly Press, Accra. Owusu, K. (1987), “Delays, suspension and abandonment of projects: causes and effects on firms”, unpublished BSc dissertation, Department of Building Technology, Kwame Nkrumah University of Science and Technology, Kumasi. Rumgay, P. (2003a), “Challenges to liquidated damages: part one”, Building Journal Hong Kong, China, February, pp. 64-8. Rumgay, P. (2003b), “Challenges to liquidated damages: part two”, Building Journal Hong Kong, China, March, pp. 78-81. Russell, J.S. (2000), Surety Bonds for Construction Contracts, ASCE Press, Reston, VA. Seeley, I.H. (1997), Quantity Surveying Practice, Macmillan, London. Seidu, I.A. (2001), “Causes and effects of delayed payments on contractors: case study, Upper West region”, unpublished BSc dissertation, Department of Building Technology, Kwame Nkrumah University of Science and Technology, Kumasi. Shen, L., Drew, D. and Zhang, Z. (1999), “Optimal bid model for price-time bi-parameter construction contracts”, Journal of Construction Engineering and Management, Vol. 125, pp. 204-9. Society of Chief Quantity Surveyors in Local Government (1993), Assessment of Liquidated and Ascertained Damages on Building Contracts, Society of Chief Quantity Surveyors in Local Government, London. Stiedl, D. and Tajgman, D. (2003), “Labour clauses in public contracts in Ghana: recent experience in the roads sector”, Report of the International Labour Organisation commissioned study on the assessment of social dimensions of labour standards, available at: www.ilo.org/public/english/bureau/dwpp/download/ghana/lcpc.pdf (accessed 7 March 2007). Thomas, R., Smith, G.R. and Cummings, D.J. (1995), “Enforcement of liquidated damages”, Journal of Construction Engineering and Management, Vol. 121, pp. 459-63. Uche, U.U. (1971), Contractual Obligations in Ghana and Nigeria, Frank Cass & Co., London. Wallace, D. (1995), Hudson’s Building and Engineering Contracts: Including the Duties and Liabilities of Architects, Engineers and Surveyors, 11th ed., Vol. 2, Sweet & Maxwell, London. World Bank (2003), Country Procurement Assessment Report: Ghana, Report No. 29055,Vol. 2, World Bank, Washington, DC. Corresponding author M.M. Tuuli can be contacted at: [email protected]

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An investigation of evaluative and facilitative approaches to construction mediation

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Penny Brooker School of Legal Studies, University of Wolverhampton, Wolverhampton, UK Abstract Purpose – The paper seeks to examine the debate on mediator style and provide empirical evidence on mediator orientation, which has implications for party choice and the development of professional standards for construction mediators in the UK. Design/methodology/approach – This paper analyses the theoretical arguments and distinctions in mediator style and assesses the available evidence relating to the utilisation of evaluative or facilitative mediator approaches in the UK and US construction industry. The paper reports on data from qualitative interviews with construction lawyers experienced in using mediation in the UK to assess the level of evaluative conduct experienced. Findings – The findings suggest that interviewees had experienced a mix of evaluative and facilitative interventions by mediators. The data support the contention that construction mediation in the UK mirrors the experience of the USA and is becoming “lawyer-driven” and adversarial, with mediators utilising evaluative techniques which some members of the legal profession prefer. Research limitations/implications – The qualitative data are based on a small sample of mediation users in the UK construction industry. However, interviewees were selected from respondents to a randomly conducted large-scale postal survey of commercial and construction lawyers. All interviewees were repeat users of the process and all but one had received training in mediation or are practising lawyer-mediators. Practical implications – The data provide evidence of different mediator techniques currently utilised in the UK construction industry and the practices of lawyers in the mediation process. The findings have implications for party choice and should inform the development of professional standards in construction mediation practice. Originality/value – The paper provides original data on the practices of mediators and lawyers in construction mediation. Keywords Construction industry, Alternative dispute resolution, Legal profession, United Kingdom, United States of America Paper type Research paper

Structural Survey Vol. 25 No. 3/4, 2007 pp. 220-238 q Emerald Group Publishing Limited 0263-080X DOI 10.1108/02630800710772818

Introduction There was a high expectation that the emphasis placed on alternative dispute resolution (ADR) in the civil justice reforms (Woolf, 1995, 1996) and the subsequent Civil Procedure Rules (CPR) would engender a change in adversarial litigation culture and increase mediation usage in the UK (Brooker and Lavers, 2000). Notwithstanding the seminal Court of Appeal decision in Dunnett v. Railtrack plc (2002) C.P. Rep. 35, whereby a cost sanction was awarded against a successful party for unreasonably refusing an offer of ADR, subsequent case law provides measured guidelines for using mediation (Halsey v. Milton Keynes General NHS Trust (2004), EWCA Civ. 576 para. 16) and, in some judicial quarters, a decline in confidence in mediation’s fitness for all disputes (Allen v. Jones (2004) EWCH 1189 (QB); Grainger, 2004; Shipman, 2006;

Tronson, 2006). CPR is, perhaps, only supporting a niche group of mediators in the commercial sector of which the construction industry is reputedly one of its principal users (CEDR Statistics 2004[1], CEDR 2nd Mediator Audit, 2005[2]; Genn, 2005; Peysner and Seneviartne, 2005). Although available figures suggest restricted expansion, there is an ever-increasing corpus of mediation providers, affiliated mediators, and an emergent profession concerned with developing standards to regulate practice (Fry, 2006; Evans, 2006). Less transparent in the ADR literature in the UK is the style mediators adopt in mediation and the theory underpinning the development of professional standards. Definitions ADR is a broad definition incorporating a variety of processes, which are alternative to the formal litigation system, where the parties prove their arguments in court through an adversarial system of examination, cross-examination and challenge (Jacobs, 1985; Jolowicz, 1996). The UK construction industry has a long history of employing other procedures outside the formal system of litigation. It is beyond the scope of the paper to describe every ADR technique utilised in the UK construction industry and other jurisdictions (For more detailed expositions, see, for example, Gaiskell, 2005a, b; Kendall, 2000; Stipanowich, 1996, 1997; Lurie, 2002; Chan et al., 2005.) This paper is primarily concerned with evaluative and facilitative techniques adopted by mediators in a non-binding mediation process. The following definitions are confined to the processes referred to by interviewees in the study, when discussing the benefits of engaging in non-binding mediation, namely mediation, statutory adjudication, early neutral evaluation (ENE) and arbitration, or other specific procedures such as expert determination, expert appraisal or conciliation, which may cause misconceptions for readers from other jurisdictions. CEDR, one of the leading ADR providers in the UK, defines mediation as “a flexible process conducted confidentially in which a neutral person actively assists parties in working towards a negotiated agreement of a dispute or difference, with the parties in ultimate control of the decision to settle and the terms of resolution”[3]. Different “variants” of mediation are further characterised as “facilitative mediation”, which is also known as “interest based mediation” where “the neutral aids or assists the parties” own efforts to formulate a settlement. The mediator is in charge of the process but the parties are in charge of the content”[3]. CEDR identifies “evaluative mediation” as a process where the neutral adopts a more “active or interventionist role, making suggestions or putting forward views about the merits of the case or particular issues between parties”[3]. However, in some UK construction literature “evaluative mediation” is recognized as a “hybrid system” of conciliation, which is utilised by the Institution of Civil Engineers and involves the conciliator making a recommendation in the event of non-settlement at the end of the mediation stage (Gaitskell, 2005a, para 5.1; see also Kendall, 2000 p. 84). In order to avoid confusion in terminology this paper avoids the use of “evaluative mediation”, referring instead to evaluative techniques within mediation or an evaluative approach adopted by the mediator such as predicting court outcomes or evaluating the strengths and weakness of a partys’ case (see below.) Another area of potential confusion in terminology is “adjudication”. In this paper “statutory adjudication” will be used to describe the procedure governed by the Housing Grants, Construction and Regeneration Act 1996 (HGCRA), which provides a

Approaches to mediation

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statutory right for the parties in construction contracts (Part II of the Act) to elect a third-party neutral to give a decision, which may be binding on the parties until the end of practical completion of the contract (Section 108). The term “arbitration” is used in this paper to describe a private tribunal chosen by the parties and governed by statute, which provides a binding decision enforceable at law. (Arbitration Act 1996) Early neutral evaluation (ENE) is procedure where the parties jointly select an expert neutral to give a non-binding decision on the issues in dispute. Gaitskell (2005a, para 6.2) notes that judges may also offer ENE but in the event of non-settlement, they remove themselves from the case (White Book Para 2A, 101:92.1, G2.1). (It is noted that following the implementation of a pilot scheme in the Technology and Construction Court (TCC), judges with specialist training, are now able to offer a “Court Settlement Process” to assist the parties to reach settlements of their disputes.) Expert determination describes a procedure which is reportedly built into construction contracts and provides for an appointed third party to give a binding determination on specific issues (Gaitskell, 2005a, para. 4.2). In contrast, expert appraisal is a process where the third party provides a non-binding opinion on the issues in dispute, which the parties may be able to use in later negotiations to help reach settlement (Kendall, 2000, p. 84). Mediator style Mediation in the USA is commonly defined as a process where a third-party neutral facilitates the parties’ “communication” to reach a resolution of their dispute. (Uniform Mediation Act 2003, US) In its “purest form” (Menkel-Meadows, 1993, p. 372) the mediator encourages the parties to explore alternatives and create solutions through compromise and agreement rather than by relying on “strict” legal rights (Folberg and Taylor, 1984, p. 7). In the USA, the activities some mediators employ to help the parties reach agreement has given rise to an intense debate on mediator style. In essence, this centres on whether mediators should use evaluative interventions to encourage settlement, such as providing assessments on the merits of each party’s case, making settlement recommendations and predicting court outcomes, or whether the process ought be the preserve only of facilitative techniques, whereby the third-party neutral enables the parties to focus on underlying issues and explore the strengths and weaknesses of their case (Hensler, 2003, pp. 189-190). Supporters of “pure” mediation would like to confine the mediator’s role to facilitating the parties’ own efforts to reach resolution, thus enshrining mediation’s ideology of party self-determination (Kovach and Love, 1996, 1998; Stulberg, 1997). The significance of the discourse concerns not only the parties’ right to an informed choice on mediator style, but also the ethical practice and standards of mediators and their neutrality in the process (Menkel-Meadows, 1993; Kovach and Love, 1996, 1998; Stulberg, 1997, Riskin, 1996). This paper first analyses the theoretical arguments and distinctions in mediator style and assesses the available evidence relating to the utilisation of evaluative or facilitative approaches in mediation in the UK and US construction industry. The paper then reports on data from qualitative interviews with UK lawyers who responded to a large-scale postal survey and who had used construction mediation to analyse the level of evaluative mediator conduct experienced. Finally, conclusions are drawn from the study and recommendations made for future research.

Background Finding accurate mediation figures for both the UK and the USA is difficult, particularly in the private setting (Stipanowich, 2004). It is estimated between 2,500-2,700 mediations were undertaken in the UK in 2005: an increase of 35 percent over the previous two years. (CEDR 2nd Mediator Audit 2005[2]; CEDR Statistics 2004[1]) Such statistics as exist suggest the main increase to be in court-connected mediation and that the majority of mediations in both the commercial and the court arena is in the hands of a few experienced mediators. (CEDR 2004[1]; CEDR 2nd Mediators Audit, 2005[2]) The market share in construction mediation does not seem to have grown appreciably, which is attributed to the provision and growth of statutory adjudication under the Housing Grants, Construction Regeneration Act (HGCRA) (Brooker and Lavers, 2005b; Gaitskell, 2005a, b; Norman, 2006). Despite limited activity in the UK, a developing profession and a healthy industry associated with training mediators or lawyers to represent clients in mediation are both in existence (CEDR 2nd Mediator Audit, 2005[2]; Fry, 2006; Evans, 2006). In comparison, during the 1990s, the USA experienced a significant growth in mediation following the implementation of court schemes, which are now estimated to provide access to ADR in nearly all federal courts and over half of the state courts. (Hensler, 2003) This accessibility to mediation has been found to bring about improved attorney attitudes to the process. Before the expansion of court connected mediation, lawyers were believed to be inhibiting use because of a lack of knowledge, concerns about loss of earnings and negative perceptions that proposing or using mediation implies a “weakness in case” (Stipanowich, 1996; Wissler, 2004). However, studies found the major resistance for utilising mediation is lawyers’ lack of familiarity with the process, which is surmounted when mediation is experienced (Wissler, 2004; Rogers and McEwen, 1998). A similar growth pattern occurred in the US construction industry, with attorneys’ negative attitudes diminishing with escalating involvement in the process (Stipanowich, 1996, pp. 108-109; 2004) The construction industry in the USA is recognised as one of the leading users of mediation. It is estimated that respondents to an American Bar Association (ABA) survey of the construction forum had participated in 10,000-15,000 mediations (Thomson, 2001) and a Deloitte & Touche survey found nationally that over 66 percent of contractors in construction had employed mediation (Fullerton, 2005, p. 54). In conjunction with expansion in use, appraisals of US court schemes found a corresponding growth in mediators using evaluative techniques in mediation, with lawyers dominating the process, minimal involvement by the parties and some attorneys employing adversarial practices or using mediation as a “litigation tool” (McAdoo and Hinshaw, 2002, p. 530; Wissler, 2004; Thompson, 2004; Hensler, 2001, 2002; Welsh, 2001a, b; Menkel-Meadows, 1997; Nolan-Haley, 1998, 2002; Brad Reich, 2002) This phenomenon is not confined to court programmes (McDermott and Obar, 2004): A multi-disciplinary survey in the US construction industry found mediation to be predominately in the hands of lawyers and the type of mediation “at variance with the purist facilitative model taught in most mediator training programs” (Stipanowich, 1998, p. 367). The majority of construction mediators gave their opinions on both “factual and legal issues” and over three-quarters of attorney-respondents agreed mediators should be “authorized to convey their personal opinions” (Stipanowich, 1996, p. 105).

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The escalation of mediators employing evaluative techniques in the USA gave rise to a number of concerns in academic circles about the practice of mediators. Mediators are reported to advertise their orientation as either “facilitative” or “evaluative” or an “eclectic” mix (Stemple, 2000, p. 394). Mediation literature began to suggest that the preference for mediators with an evaluative orientation was “market driven”, which led writers to insist that clients should be made aware of differences in style, in order to support choice (Riskin, 1996; Baruch Bush and Pope, 2002; Stemple, 2000; Lowry, 2000; Lande, 2000). However, some research led to scepticism that mediators are aware of their orientation and that “training” or “direction” is necessary to effect changes in style (Kressel and Pruitt, 1989, p. 25, cited by Riskin, 1996). Further, Golann (2000) established, in a role-play study, that it is routine for mediators to transfer between techniques throughout the process and during the caucus, and that changes in style are influenced by the parties’ personalities as well as by the mediator’s inclination. The facilitative/evaluative debate was galvanised when Riskin (1996) introduced his mediator orientation grid, which he contended would “enhance” clients’ awareness of style and aid the training and evaluation of mediators (pp. 48-9). His framework focuses on two continua. One relates to mediation “goals”, ranging from a narrow approach such as seeking a financial settlement to a broader approach, which might consider the parties’ business needs. The second characterises the activities used by mediators to reach these goals from “extreme” evaluative conduct, such as “pushing” the parties to accept particular settlements, to milder interventions, such as encouraging the parties to assess their case. Mediation purists, however, censure Riskin for situating an evaluative orientation in a mediator’s framework because it “legitimises” the practice (Stulberg, 1997; Kovach and Love, 1996, 1998). Detractors of evaluative interventions believe that when mediators give opinions or assess cases they reduce the parties’ own efforts at resolving the dispute, thus undermining self-determination of the dispute by the parties (Kovach and Love, 1996, 1998; Stulberg, 1997). Kovach and Love (1996) argue that, when mediators use evaluative techniques, they risk their neutrality if their appraisal “favours” one participant. Further, when mediators have an evaluative orientation, the parties transfer their energies from problem solving to positional arguments, thus propagating adversarial behaviour as each side attempts to “persuade” the mediator (Kovach and Love, 1996, p. 31): The central characteristic of mediation is facilitated negotiation, and the use of evaluative techniques both endangers the neutrality of the mediator and perpetuates an adversarial culture. “Evaluative” mediation is an oxymoron. It jeopardizes neutrality because a mediator’s assessment invariably favours one side over the other. Additionally, evaluative activities discourage understanding between and problem solving by the parties. Instead, mediator evaluation tends to perpetuate or create an adversarial climate. Parties try to persuade the neutral of their positions, using confrontational and argumentative approaches. In some cases, the party whose position the mediator disfavoured will simply leave the process.

Stipanowich (2001) observes that mediators are afforded a “type of quasi-immunity”, particularly in court-connected programmes in the USA, to protect them from undue influence and to limit review by the judicial system (p. 877). However, critics contend that many evaluative-orientated mediators are not sufficiently trained to make appraisals or recommendations, and the rules of mediator immunity do not protect the

parties against “erroneous” mediator evaluations. (Kovach and Love, 1998 p. 104; Menkel-Meadows, 1997; Stipanowich, 2001; Stemple, 2000). Kovach and Love (1998) argue that, if mediators give legal advice, they should be legally trained, which has the effect of both “reducing the mediator pool” and “depriving the field of non-lawyers” (Kovach and Love, 1998, p. 105). Further concerns focus on the need for “uniformity” and for a delineation of ADR processes, where neutrals either adjudicate (in the sense of providing a binding decision) or proffer appraisals (non-binding) because the skills and training necessary for evaluation are conceptually and philosophically different from those required for facilitating within mediation. (Kovach and Love, 1996, 1998; Menkel-Meadows, 1997) Kovach and Love maintain that participants in mediation should be able to expect a consistency in style across states and mediation programmes. Further, they believe that programmes should not combine different mediation approaches because a failure to draw clear distinctions obscures the development of standards and the evaluation of mediators, mediation effectiveness, and mediator programmes (p. 31). Riskin’s grid is further objected to because of a lack of “explanation and justification on ‘why’ mediators change orientation” (Stulberg, 1997, p. 989). Mediation theorists maintain that the debate goes deeper than classifying activities: Theory should explain both the “why” and “when” of mediator interventions (Noce et al., 2002; Lowry, 2000; Oberman, 2005; Stulberg, 1997). Additionally, Oberman (2005) argues that, until this theoretical work has been undertaken, neither mediation nor a profession can develop. Noce et al. (2002) observe that mediation policy in the USA, which dictates who can mediate, mediator styles, certification and the rules governing mediation practice, has been developed using a “generic” understanding of mediation, which fails to “sufficiently” reflect the ideologies in different mediation style (p. 61). They contend policy decisions should not be taken until theoretical frameworks for different models exist, which enable them to be compared and assessed (p. 63). A review of the mediation literature in the UK indicates that the debate on mediator style has not been fully articulated, apart from a few notable exceptions (Roberts, 2000; Dolder, 2004; Genn, 1998; Mulcahy, 2001a). It is difficult to ascertain with certainty which style predominates, but ADR providers give some guidance on their websites. CEDR suggest commercial mediation is a “blend” of facilitative and evaluative approaches[3]. The Academy of Experts states that “basic teaching” concentrates on the “purists facilitative model” but provides advanced training for experienced mediators to examine how to “mix and match and switch models seamlessly”[4]. Various professional bodies have developed codes of practice which either require the mediator to explain differences in style[5], or advise the parties to ask the mediator what their style is[6]. The Civil Mediation Council’s (CMC)[7] pilot scheme to accredit mediation providers expects them to adopt the European (EU) Mediators Code of Practice (2004)[8], which was introduced to encourage uniformity but is silent on the matter of mediator style. The available evidence suggests that evaluative techniques in mediation have materialized in the UK virtually without theoretical debate and that professional bodies and recognized institutions are developing standards of practice, which incorporate both evaluative and facilitative approaches of mediation practice. The following sections describe the methodology of the study and explore the data from qualitative interviews that relate to the style of mediation experienced by lawyer-interviewees in construction mediation. .

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Methodology Thirty qualitative interviews were conducted with experienced users of mediation during March to May 2002. Interviewees were selected from respondents to a postal survey of commercial and construction lawyers (Brooker and Lavers, 2001, 2002). Twenty-three interviewees reported working 100 percent in construction or in both fields of practice. A further three revealed experience with construction mediations during the interviews. The postal survey had established that 30 percent of construction mediations had not reached full settlement (Brooker, 2002). Therefore, the interview objective was to explore perceptions about the benefits of mediating other than achieving settlement. The interview data revealed that lawyers believe mediation offers a range of ancillary benefits, such as financial savings, if settlement is achieved early in the dispute or the opportunity is given to “reality check” or narrow issues, but some lawyers had reported tactical uses being made of mediation, for example for testing evidence or sending messages to their opponents. The data suggest that the benefits that mediation offers make it an attractive option even in the event of a failure to resolve the dispute (Brooker and Lavers, 2005a, b). However, it was concluded that the option of statutory adjudication under the HGCRA may be restricting mediation activity in the construction industry. Construction interviewees preferred to recommend statutory adjudication to their clients when the dispute involved payment issues and was financially small, because it provides an enforceable decision in a short time frame (Brooker and Lavers, 2005a). Although the chief objective of the interviews was to explore the interviewees’ perceptions about the benefits achieved by mediating, participants commented on the techniques mediators used during the process to enable the parties to reach an outcome or, in some instances, mediator actions they believed had frustrated reaching settlement. The data relating to mediator activity was analysed in order to establish whether specific interventions could be characterised as evaluative or facilitative. Coding of data Academic literature reveals a lack of agreement on the demarcation of mediator actions into facilitative or evaluative techniques (McDermott and Obar, 2004, pp. 77-8). Arguments are made that some of the interventions Riskin categorises as evaluative are legitimate facilitative tools if used to enable “consensual decision-making” by the parties (Stulberg, 1997, pp. 1003-4; Kovach and Love, 1998; Love, 1997). Thus, agenda setting, making proposals, questioning the strengths and weaknesses of the case and reality testing have all been declared acceptable facilitative techniques if the mediator does not decide or opine on what the settlement should be (Kovach and Love, 1998, pp. 78-9). After considering the literature, content analysis was undertaken using the following classifications of evaluative conduct to establish whether lawyers in the study had experienced or used any of the designated evaluative techniques: . making decisions or recommendations; . predicting likely court or arbitral outcomes; . giving an opinion on the merits of the party’s case or proposing settlement options; and . pressuring the parties to accept proposals.

Interview findings Mediator style. Only two interviewees explicitly mentioned the debate on mediator styles, although the majority indirectly discussed activities, which demonstrate mediators employing either facilitative or evaluative techniques. One experienced construction mediator, who had undertaken training in the USA, believed that many mediators are too “touch-feely” and need to be “braver” in “offering a choice of styles” to “sophisticated clients”: I’ve heard a lot of people say that mediators are a bit too facilitative and not evaluative enough. So in my view what you do is you offer the parties a choice of style. Now you can only do that if the parties are very sophisticated. If they are unsophisticated, you have to work it out for yourself. And I think you have to start on the facilitative side and see how it goes.

Facilitative techniques. Seven interviewees made specific comments about mediation being a facilitative process. In addition, when describing the benefits of mediating such as enabling the parties to focus or narrow the issues or assess the merits of their case (Brooker and Lavers, 2005a, b), interviewees commented on the particular role mediators performed in enabling the parties to reach settlement. For example: . to “keep the lines of communication open”; . to be “facilitative and trying to be a lateral thinker outside of that”; . to “help broker a deal”; . to “oil the proceedings”; . to help resolve parties’ differences, reach agreement or settle; . to “listen and be receptive” to the parties; . to enable the parties to assess the “strength and weakness” of their case; . to help reality check; . to defuse “aggression” or party intransigence; . to enable people to change the way they look at things; and . to separate the dispute into “issues”. It is likely that “skilled” mediators can achieve these outcomes through adopting either a facilitative or evaluative approach, but Kovach and Love (1998) contend that facilitation is more effective in “enriching the information base” because it encourages openness compared to using evaluative interventions, where the parties are more likely to be selective about the information they present, in order to influence the mediator. Proponents of pure facilitative mediation do not believe that such an approach indicates “weakness” because mediators can be “assertive, firm, forceful, imaginative, creative, active or focussed” whilst utilising facilitative interventions that encourage “consensual decision-making” (Stulberg, 1997, p. 1002). Evaluative techniques. Analysis found that only five interviews did not contain explicit data relating to evaluative techniques. Numerous incidents of evaluative actions by the mediator were described, but not all interviewees were supportive

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because such behaviour was perceived to nullify the process or disaffect the parties. As a newly trained mediator commented: You know, if I sat for an hour with my client and then the mediator arrived and said, “Right, I’ve spoken to the other side. Your case is absolutely pointless.” I don’t see how the process would then work.

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The following section reviews specific experiences or opinions on evaluative techniques commented on in the interviews. Decisions or recommendations Interviewees articulated that the mediator’s role is not to decide the settlement outcome. However, two related issues were raised. First, when a quick decision is needed and disputes come under the HGCRA, statutory adjudication is often recommended in preference to mediation (Brooker and Lavers, 2005b). Second, the flexibility of mediation offers the parties the option of selecting a mediator who will provide a decision or a recommendation in the event of non-settlement. (As noted earlier, this type of ADR process has been defined either as “evaluative mediation” or conciliation, in some UK construction literature; Gaitskell, 2005a; Kendall, 2000.) A keen advocate of statutory adjudication took the standpoint that mediators should be prepared to give recommendations because they provide a “milestone”, which the parties can subsequently refer to. Mediation may offer flexibility in process design (Stephens, 1992) but critics believe mediators are not trained adequately for “decision-making functions” and the safeguards afforded in the formal systems such as litigation, arbitration or statutory adjudication are not present (Kovach and Love, 1998, p. 104; Fiss, 1974; Guill and Slavin, 1989). Predicting court or tribunal outcomes Most mediation literature assigns the prediction of court or other tribunal outcomes as evaluative conduct (Riskin, 1996; Kovach and Love, 1998; McDermott and Obar, 2004; Thomson, 2001; Stulberg, 1997). Mediators with an evaluative orientation use this tool in the caucus session as a method of encouraging the parties to assess the strength or weakness of their case or to create movement when there is an impasse or party intransigence (Riskin, 1996, p. 27). Only three interviewees reported incidents of the mediator predicting a court outcome. In one case, both legal representatives had purposely chosen a leading lawyer-mediator, who would challenge their clients by giving them a realistic assessment of what they might achieve in court and would say: “I’m sorry, I just don’t think you’re going to get that if you go to court, or do you realise how much you are running up in costs for the sake of £X?” (the dispute was not in construction but the interviewee was experienced in both commercial and construction mediation). A remark in another interview disclosed that a client had received “bad news” from the mediator. Detailed questioning revealed that the solicitor stated unequivocally that mediators do not give advice yet during the caucus an indication had been given on the likely court outcome: Therefore, in your private session with the mediator, you can tell him whatever you want. I think the question went along the lines of, “What do you think of that?” And his response was, “Well I could see a judge in the court taking this particular view.” So, it’s as loose as that. But it’s never, “I am advising you”.

One barrister-mediator emphasised that a “pure mediator” is a facilitator: He’s not there to put anything in himself, it’s to oil the proceedings and put lubricant into the system so that things can start moving and sort themselves out.

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However, the interviewee maintained mediators might have to give the following legal advice: According to the law books you’ve got a good case but no judge is going to like this one. Judges don’t like this sort of case.

The barrister did not believe mediators have to be lawyers but they might need to know the “principles of liability” in order to assess the case and give advice on the correct legal interpretation. However, the dangers of legal opining was highlighted by an enthusiastic supporter of evaluative techniques in mediation, as this intervention changes the mediator’s relationship with the parties and can require a thorough investigation of the case: Interviewer: What about mediators giving their opinion? Interviewee: Well it’s very dangerous because, first of all, you change your relationship with the parties and second you may not be able to do that without doing an enormous amount of work, which is actually, I think, a bigger problem. Because generally in mediations you float about on the surface and you only delve into the commercial issues. Now the legal issues, you may have to spend a whole day in the library reading all the papers and working out what you think, so it’s not very practical in certain cases.

Mediation theorists who support the facilitative ideology believe that, when mediators make court predictions, it distorts settlement towards that outcome: . . . it minimizes party participation, skews outcomes towards the predicted court result, and lessens party commitment to self-developed solutions because outcomes flow more from the neutral than from the parties (Kovach and Love, 1998, p. 99).

However, the findings from this study do not suggest that this technique occurred frequently. Opinions and evaluating strength and weakness of cases A technique that some mediators who adopt an evaluative approach make use of is giving their “opinion” on elements of the case. This technique might include the merits of the case, or opining on how the case should settle, or reality testing by the mediator. Mediators responding to the CEDR’s 2005 audit believe the skills that contribute most to settlement are creative problem solving and reality testing by the mediator[2]. The benefits of mediation when mediators provide an analysis of case was explained by an interviewee: I think another advantage of mediation is that it helps a party to understand, maybe in a way that wasn’t previously the case, what the strengths and weaknesses of its case are. Because in the process you can talk privately to the mediator, you can ask the mediator, “What do you think?”.

Seven interviewees had experienced mediators giving opinions about their client’s case but there was no consensus on whether mediators should engage in such activity. One solicitor expressed disappointment that the chosen mediator had not given any

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indication of the merits of the client’s dispute because this could be a valuable technique when an experienced specialist is appointed. However, interviewees were alive to the potential costs of employing leading lawyer-mediators and mediation itself is often no longer perceived to be an inexpensive choice (Brooker and Lavers, 2005a, b). Critics suggest that there are inherent dangers of alienating or losing the trust of the parties when the mediator gives advice or offers opinions on the strength of a case (Kovach and Love, 1996, 1998). This was illustrated in a reported mediation where the mediator had furnished personal views resulting in the client refusing to allow information to be transferred to the other party: My client took a view that this mediator was biased against him. And therefore, as soon as the trust fell down, my client would refuse to give me instructions to release information to the mediator to take back to the other side, because he was concerned that it was a one-way process.

Pressurising parties to accept proposals Thomson (2001) grades the most evaluative technique in US construction mediation to be when a mediator will not let the parties leave until a settlement proposal has been accepted. Only one mediator admitted using a similar approach in a three-party construction dispute when the mediation had gone on late into the evening and had not settled: “Well I think I had been the one keeping them there. I was going for the ‘you don’t get out of here till you’ve done it’”. No other interviewee described such extreme hard-hitting tactics but nearly a third indicated a preference for mediators to take a “stronger” approach in mediation. Interviewees made comments that mediators need to be “frank with clients”, or in one case that the mediator had taken the other party “by the throat metaphorically”. Others disclosed that the appointed mediator could have “taken a more forceful line” or had not been “proactive” or could have done more “to persuade the parties to come up with some monies”. This data is analogous to Genn’s (1998) research in the London County Court Mediation Scheme, which found that some lawyers preferred a more “directive approach” by the mediator[9]. The desire for mediators to be directive may relate to legal interviewees’ attitudes rather than their clients’ views, but lawyers control the gateway to mediation (Genn, 2005, p. 6) not only in court-connected schemes but also in the private sector. Mediation may provide a new way for the parties to interact in order to resolve conflict (Baruch Bush and Pope, 2002); however the process is complicated by the presence of lawyers, who are in attendance to represent their clients’ interests (Mulcahy, 2001b) and who might believe this is best achieved through appointing mediators with an evaluative orientation. The next section provides insight on interviewees’ perceptions of legal representation in mediation. Adversarialism in mediation The majority of the interviewees were enthusiastic supporters of mediation and the benefits it has to offer dispute resolution in the construction industry (Brooker and Lavers, 2005a, b), but nearly half expressed disquiet about the role of lawyers in the process. The involvement of some barristers was particularly condemned because advocacy training was believed to be “counter-productive” or “inhibiting”. Interviewees either admitted or blamed other lawyers for using “legalistic” practices, which included:

. . . . . .

using the opening session to present legal arguments; citing cases; “tooling up” with legal counsel; “acting to the mediator to make him convey messages”; adopting aggressive attitudes; and being entrenched in legal positions.

These practices can be summarised by one mediator’s complaint about the approach taken in mediation by UK lawyers, which is to treat the process as if it is litigation: The majority of British lawyers tend to approach mediation as if it was a piece of litigation. So, they are there to prove their case; often they are not there to look for a constructive settlement. They are there to lay out their stall to say, “We’ve got a jolly good case. The other side’s case is lousy.” There is not a lot of positive, creative thinking about, “How can we do a deal which gets a sort of ‘win-win’ situation?” It’s more, “Our defence is sound.” Or, “Our claim is fine and their defence is lousy. And they haven’t done their homework. And they don’t realise what a problem they’ve got”.

This research suggests, similarly to the US experience, that some lawyers in the UK are approaching mediation as if engaging in litigation and have not yet adapted to the different skills required for mediation (Menkel-Meadows, 1997; McAdoo and Hinshaw, 2002, p. 530; Wissler, 2004; Thompson, 2004; Hensler, 2001, 2002; Welsh, 2001a). Many disputes in the construction industry are complex and financially large and when these conditions prevail, parties are likely to both seek legal advice before embarking on mediation and to opt for legal representation in the process (Brooker, 1999; Brooker and Lavers, 2005a). The involvement of legal personnel may inevitably lead to the selection of mediators who provide settlement recommendations, give opinions, or predict legal outcomes, which will provide the setting for the parties’ lawyers to have a vested interest in using tactics to “persuade” mediators of the strength of their case (Kovach and Love, 1996, 1998). The history of arbitration highlights the “juridification” process whereby lawyers gained control over non-lawyers by converting disputes into legal arguments, which resulted in it becoming procedurally bound and adversarial (Flood and Caiger, 1993; Kovach and Love, 1998). Evidence from the US construction industry and court schemes show mediation is experiencing a similar phenomenon as the parties surrender control, or have it taken from them by attorneys, who progressively incorporate their traditional adversarial practices into the process (Stipanowich, 1996; McAdoo and Hinshaw, 2002, p. 530; Wissler, 2004; Thompson, 2004; Hensler, 2001, 2002; Welsh, 2001a). The legal profession has been closely involved in mediation since its inception in the UK (Roberts, 1992, 1993, 2000; Robertshaw and Segal, 1993) and recent auditing of practising mediators in the commercial sector suggests that the majority have a legal background. (CEDR’s Mediator Audit 2005[2] reports that 57 percent of its respondents have a legal background.) Lawyers are currently involved in developing standards and regulating mediation through their own professional bodies and through association with the Civil Mediation Council and ADR providers interested in standardising practice (Fry, 2006; Evans, 2006). Such activity demands awareness of research involving the theoretical debate on mediator style and of empirical evidence on the effectiveness of different mediator approaches relating to evaluative and facilitative techniques.

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Effectiveness of mediator style for construction disputes The evidence from this study is that evaluative interventions have been used in UK construction mediations experienced by the interviewees and some legal advisors endorse this activity. The question of the validity of mediators utilising an evaluative approach is, perhaps, less pressing than whether the parties have sufficient information on the effectiveness of different mediator styles on mediation outcome (see Stipanowich, 1996, pp. 105-6; Stipanowich, 1997). However, this data is currently unavailable for construction mediations. Although researchers have used different outcomes to evaluate the efficacy of mediation such as party satisfaction, fairness of procedure or post-dispute climate (Kressel and Pruitt, 1989, cited by Stipanowich, 1996, p. 119) construction mediation has been measured in terms of reaching settlement (Stipanowich, 1996; Henderson, 1996; Brooker, 2002). Research in both the UK and the USA indicates there are relatively few determinants that negatively effect settlement outcome in construction disputes (Stipanowich, 1996; Henderson, 1996; Brooker, 2002). A UK survey found that settlement was not significantly affected by categories of dispute or the relationship of the parties, but failure was most often due to the uncompromising attitudes of the parties (Brooker, 2002). Henderson (1996, p. 44) did not find that delay, type, payment, complexity, nor number of issues in dispute in a US construction study reduced the likelihood of mediation reaching settlement. The most important factors identified as affecting settlement related to the source of the rules, the quality of the mediator and the number of mediator interventions such as site visits or reviewing documents. Construction mediations were more likely to settle when the parties developed their own rules rather than those prescribed by ADR providers or the court and when the mediator employed a “diversity of interventions” (Henderson, 1996, pp. 144-5). However, Stipanowich (1996, p. 123) provides evidence that when US construction mediators expressed their opinions on “pertinent facts or law”, mediation settled more often than when they did not give their views: 71.5 percent of mediations reached full or partial settlement, when mediators employed these evaluative techniques, compared to 55.2 percent, when they did not. Conversely, it is noted that Henderson (1996, p. 145) reports that “mediator views” did not statistically affect outcome for construction disputes. Nevertheless, Stipanowich (1996, pp. 105-6) contends that mediator “opinion giving” can be useful in construction mediation and legal advisors should consider the “timing and scope” of such activity. For example, should the mediator only give his opinion during the caucus or jointly at the end of the mediation, and has sufficient information been provided for evaluative interventions? The evidence from various studies suggests that relatively few features of construction disputes affect the parties reaching settlement in mediation but evaluative interventions by the mediators often do take place and may increase the likelihood of the parties settling. Until empirical data is produced on the effectiveness of different mediators’ styles on mediation outcome of construction disputes, party selection can only be based on broad guidelines. Before selecting a mediator, it is recommended that the parties consider what outcome they wish to achieve from mediation and what activities or actions they wish the mediator to carry out. If they desire a mediator who will provide “tough probing questions”, then Stipanowich (1997) maintains that this “indirectly” leads the way to mediators giving their views. If the parties require advice on the parameters of settlement based on “law, industry practice, or technology”,

Riskin (1996) advocates the appointment of suitably qualified mediators with an evaluative orientation (see also Cheung et al., 2002, who identify “knowledge of industry” as one of the ten most important factors in selecting an ADR neutral). Conversely, if the parties, or their advisors, believe that they themselves are better placed to develop creative outcomes, then a mediator with a facilitative orientation who can assist communication may be preferred (Riskin, 1996, pp. 46-7). Although some supporters of “pure” facilitative techniques maintain that “process expertise” is more important than subject expertise (see, for example, Baruch Bush, 1996), others maintain that if the parties opt for a mediator with an evaluative style, then knowledge in “construction, architecture, engineering or other fields” is more likely to be a key consideration (Fullerton, 2005; Bickerman, 2005; Hart, 1992). Conclusion The data in this study indicate that an “eclectic” (Stemple, 2000) approach to mediator style was experienced, or practised by interviewees. Although the use of facilitative techniques is recognised as producing many benefits in helping the parties to reach settlement, a number of interviewees seek a more “evaluative” orientation particularly from experienced or specialist mediators. However, the research provides evidence of substantial complaint that some lawyers are approaching mediation in the same way as litigation, by using adversarial techniques within the process. If the parties relinquish their autonomy in choosing the way mediation is conducted, then it is likely that evaluative techniques will eventually pervade as has occurred in the USA. Mediation may in the long term not provide a “true” alternative to litigation, as was the case with arbitration, which was an early alternative process to the formal system of litigation (Flood and Caiger, 1993; Kovach and Love, 1998, pp. 90-2). A stealthy introduction of procedural conventions, increasing adversarial conduct and rising mediation costs are, perhaps, an inevitable downside of evaluative mediator practice as, parties select leading lawyer-mediators (Brooker and Lavers, 2005a, b). If the construction industry is to ensure that it maximises the potential benefits mediation offers to dispute resolution and lawyers are to avoid future censure for initiating adversarial practices as they take control, then party self-determination must be safeguarded both by raising awareness of mediator style and by protecting the parties’ choice of mediator. At present, the parties decide on the mediator best suited for their dispute but in many cases they will seek their lawyers’ advice. If they are to be offered a bona fide choice, then selection should be supported by information formed on the basis of transparent standards of practice and training, which are grounded in theory and empirical research. To address the limited research in construction mediation in the UK, it is recommended that future investigation should focus on the practices of construction mediators, which reviews governing codes of practice, the training of mediators and the training of lawyers to represent their clients in mediation. Further research, based on delineated theoretical frameworks of mediation practice, should examine mediators’ orientation and interventions to provide data on the effectiveness of different styles. Notes 1. See www.cedr.co.uk/index.php?location ¼ /library/articles/Statistics_2004.htm (accessed 28 September 2006).

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2. See www.cedr.co.uk/congress2005/TheMediatorAudit2005_exec_sum.pdf (accessed 6 October 2006). 3. See www.cedrsolve.com/index.php?location ¼ /services/mediation/process/variations.htm (accessed 28 September 2006). 4. See www.academy-experts.org/courses/uk/medmod.htm (accessed 28 September 2006). 5. See www.lawsociety.org.uk/documents/downloads/panelsccmpnotesv12004.pdf#code (commentary section 4, p. 22 (accessed 28 September 2006). 6. See www.drs-ciarb.com/ADHOC/pdf/Mediation_Guidance_Notes.pdf, p. 2 (accessed 28 September 2006). 7. See www.civilmediation.org/application-forms.php (accessed 28 September 2006). 8. See www.adrgroup.co.uk/docs/european-code-of-conduct-for-mediators.pdf-search ¼ %22european%20code%20of%20practic (accessed 6 October 2006). 9. See www.dca.gov.uk/research/1998/598esfr.htm (accessed 26 September 2006). References Baruch Bush, R. (1996), “What do we need a mediator for? Mediations ‘value added’ for negotiators”, Ohio State Journal on Dispute Resolution, Vol. 12, pp. 1-36. Baruch Bush, R. and Pope, S. (2002), “Changing the quality of conflict interaction: the principles and practice of transformative mediation”, Pepperdine Dispute Resolution Journal, pp. 67-96. Bickerman, J. (2005), “Don’t guess who’s coming to the table: organising the mediation process”, Federation of Defence and Corporate Counsel (FDCC) Quarterly, Spring, pp. 321-31. Brad Reich, J. (2002), “Attorney v. client: creating a mechanism to address competing process”, Southern Illinois University Law Journal, Winter, pp. 183-222. Brooker, P. (1999), “The juridification of alternative dispute resolution: legal professionals’ involvement in ADR in the UK construction industry”, Anglo-American Law Review, pp. 1-36. Brooker, P. (2002), “Construction lawyers’ attitudes and experience with ADR”, Construction Law Journal, Vol. 18 No. 2, pp. 97-116. Brooker, P. and Lavers, A. (2000), “Issues in the development of ADR for commercial and construction disputes”, Civil Justice Quarterly, Vol. 19, pp. 353-70. Brooker, P. and Lavers, A. (2001), “Commercial and construction ADR: lawyers’ attitudes and experience”, Civil Justice Quarterly, Vol. 20, pp. 327-47. Brooker, P. and Lavers, A. (2002), “Commercial lawyers’ attitudes and experience with ADR”, Web Journal Current Legal Issues, Vol. 4, available at: http://webjcli.ncl.ac.uk/2002/issue4/ brooker4.html Brooker, P. and Lavers, A. (2005a), “Mediation outcomes: lawyers’ experience with mediation”, Pepperdine Dispute Resolution Journal, Vol. 5 No. 2, pp. 161-213. Brooker, P. and Lavers, A. (2005b), “Construction lawyers’ experience with mediation post-CPR”, Construction Law Review, No. 1, pp. 19-46. Chan, E., Chan, K. and Hills, M. (2005), “Construction industry adjudication: a comparative study of international practice”, Journal of International Arbitration, Vol. 22 No. 5, pp. 363-74. Cheung, S., Suen, H. and Lam, T. (2002), “Fundamentals of alternative dispute resolution processes in construction”, Journal of Construction Engineering and Management, September/October, pp. 409-17.

Dolder, C. (2004), “The contribution of mediation to workplace justice”, Industrial Law Journal, Vol. 33 No. 4, pp. 420-42. Evans, G. (2006), “Elements of confusion: education and training supplement”, New Law Journal, Vol. 156 No. 7215, pp. 404-5. Fiss, O. (1974), “Against settlement”, Yale Law Review, Vol. 93, pp. 1073-90. Flood, J. and Caiger, A. (1993), “Lawyers and arbitration: the juridification of construction disputes”, Modern Law Review, Vol. 56, pp. 412-40. Folberg, J. and Taylor, A. (1984), Mediation, Jossey-Bass, San Francisco, CA. Fry, E. (2006), “It’s good to talk”, New Law Journal, Vol. 156 No. 7209, pp. 132-3. Fullerton, R. (2005), “Searching for balance in conflict management: the contractor’s perspective”, Dispute Resolution Journal, Vol. 48, February-April, pp. 48-60. Gaitskell, R. (2005a), “Current trends in dispute resolution: focus on Dispute Resolution Board”, paper presented at the Society of Construction Arbitrators’ Annual Conference, May. Gaitskell, R. (2005b), “Current trends in dispute resolution”, Arbitration, Vol. 71 No. 4, pp. 288-99. Genn, H. (1998), “Central London County Court Pilot Mediation Scheme: evaluation report”, Research Series No 5/98, July, Lord Chancellor’s Department, London. Genn, H. (2005), “Solving civil justice problems: what might be best?”, paper presented at Scottish Consumer Council Seminar on Civil Justice, January 19, available at: www.asauk.org.uk/ fileLibrary/pdf/ADR_Update_15_May_2005.pdf#search ¼ %22Genn%20Scottish%20 consumer%20council%20seminar%202005% Golann, D. (2000), “Variations in mediation: how and why legal mediators change styles in the course of a case”, Journal of Dispute Resolution, Vol. 41, pp. 41-61. Grainger, I. (2004), “The costs consequences of a failure to mediate”, Civil Justice Quarterly, Vol. 23, October, pp. 244-7. Guill, J. and Slavin, E. (1989), “Rush to unfairness: the downside of ADR”, The Judges Journal, Vol. 28, pp. 8-11. Hart, R. (1992), “Improving your chance of success during construction mediation”, Arbitration Journal, December, pp. 14-20. Henderson, D. (1996), “Mediation success: an empirical analysis”, Ohio State Journal on Dispute Resolution, Vol. 11, pp. 105-47. Hensler, N. (2001), “Making deals in court connected mediation: what’s justice got to do with it?”, Washington University Law Quarterly, Vol. 79, pp. 787-861. Hensler, N. (2002), “Suppose it’s not true: challenging mediation ideology”, Journal of Dispute Resolution, pp. 81-91. Hensler, N. (2003), “Our courts, ourselves: how the alternative dispute resolution movement is re-shaping our legal system”, Penn State Law Review, Summer, pp. 165-97. Jacobs, J. (1985), “Justice between man and man. Towards a code of civil procedure”, Current Legal Problems, Oxford University Press, Oxford. Jolowicz, J.A. (1996), “The Woolf Report and the adversary system”, Civil Justice Quarterly, Vol. 15, July, pp. 198-210. Kendall, J. (2000), “Choosing a system for resolving commercial disputes”, International Company and Commercial Law Review, pp. 82-6. Kovach, K. and Love, P. (1996), “Evaluative mediation in an oxymoron”, Alternatives to High Cost Litigation, Vol. 14, pp. 31-2.

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Kovach, K. and Love, L. (1998), “Mapping mediation: the risks of Riskin’s grid”, Harvard Negotiation Law Review, Vol. 3, pp. 71-109. Kressel, K. and Pruitt, D. (1989), Mediation Research: The Process and Effectiveness of Third-Party Intervention, Jossey-Bass, San Francisco, CA. Lande, J. (2000), “Towards a more sophistication mediation theory”, Journal of Dispute Resolution, pp. 321-31. Love, P. (1997), “The top ten reasons why mediators should not evaluate”, Florida State University Law Review, Vol. 24, pp. 937-48. Lowry, R. (2000), “Training mediators for the 21st century: to evaluate or not? That is not the question!”, Family and Conciliation Courts Review, Vol. 38, pp. 48-58. Lurie, P. (2002), “Factors influencing a successful mediation”, Construction Law, Vol. 22, pp. 18-21. McAdoo, B. and Hinshaw, A. (2002), “The challenge of institutionalising ADR: attorneys’ perspectives on the effect of Rule 17 on civil litigation in Missouri”, Missouri Law Review, Vol. 67, pp. 473-572. McDermott, P. and Obar, R. (2004), “What’s going on in mediation? An empirical analysis of the influence of mediator’s style on party satisfaction and monetary benefit”, Harvard Negotiation Law Review, Spring, pp. 75-113. Menkel-Meadows, C. (1993), “Lawyer negotiation: theories and realities – what we learn from mediation”, Modern Law Review, Vol. 56, pp. 362-79. Menkel-Meadows, C. (1997), “When dispute resolution begets disputes of its own: conflicts among dispute professionals”, UCLA Law Review, Vol. 44, pp. 1871-932. Mulcahy, L. (2001a), “The possibility and desirability of mediator neutrality – towards an ethic of partiality?”, Social and Legal Studies, Vol. 10 No. 4, pp. 505-27. Mulcahy, L. (2001b), “Can leopards change their spots? An evaluation of the role of lawyers in medical negligence mediation”, International Journal of the Legal Profession, Vol. 8 No. 3, pp. 203-24. Noce, D., Baruch Bush, R. and Folger, F. (2002), “Clarifying the theoretical underpinnings of mediation: implications for practice and policy”, Pepperdine Dispute Resolution Law Journal, Vol. 3, pp. 39-50. Nolan-Haley, J. (1998), “Lawyers, clients and mediation”, Notre Dame Law Review, Vol. 73, pp. 1369-90. Nolan-Haley, J. (2002), “Lawyers, non-lawyers and mediation: rethinking the professional monopoly from a problem-solving perspective”, Harvard Negotiation Law Review, Vol. 7, pp. 235-99. Norman, P. (2006), “Another string to the bow? The Court Settlement Process”, Construction Law Journal, Vol. 22 No. 6, pp. 424-8. Oberman, S. (2005), “Mediation theory vs. practice: what are we really doing? Resolving a professional conundrum”, Ohio State Journal on Dispute Resolution, Vol. 20, pp. 775-822. Peysner, J. and Seneviartne, M. (2005), “The management of civil cases: the courts and post-Woolf landscape”, Research Series 9/05, November, Department of Constitutional Affairs, London. Riskin, L. (1996), “Understanding mediators’ orientations, strategies and techniques: a grid for the perplexed”, Harvard Negotiation Law Review, Vol. 1, pp. 7-51. Roberts, S. (1992), “Mediation in the lawyers’ embrace”, Modern Law Review, Vol. 55 No. 2, pp. 58-264.

Roberts, S. (1993), “ADR and civil justice: an unresolved relationship”, Modern Law Review, Vol. 56 No. 3, pp. 452-70. Roberts, S. (2000), “Settlement as civil justice”, Modern Law Review, Vol. 63, pp. 739-47.

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Robertshaw, P. and Segal, J. (1993), “The milking of ADR”, Civil Justice Quarterly, Vol. 12, pp. 23-8. Rogers, N. and McEwen, C. (1998), “Employing the law to increase the use of mediation and to encourage direct and early negotiations”, Ohio State Journal on Dispute Resolution, Vol. 13, pp. 831-41. Shipman, S. (2006), “Court approaches to ADR in the civil justice system”, Civil Justice Quarterly, Vol. 25, April, pp. 181-218. Stemple, J. (2000), “Identifying real dichotomies underlying the false dichotomies: 21st mediation in an eclectic regime”, Journal Dispute Resolution, pp. 371-94. Stephens, R. (1992), “Civil litigation: arbitration and ADR: will ADR take over?”, International Construction Law Review, Vol. 3, pp. 89-92. Stipanowich, T. (1996), “Beyond arbitration: innovation and evolution in the United States construction industry”, Wake Forest Law Review, Vol. 31 No. 1, pp. 65-182. Stipanowich, T. (1997), “At the cutting edge: conflict avoidance and resolution in the US construction industry”, Construction Management and Economics, Vol. 15, pp. 505-12. Stipanowich, T. (1998), “The multi-door contract and other possibilities”, Ohio State Journal on Dispute Resolution, Vol. 13, pp. 303-404. Stipanowich, T. (2001), “Contract and conflict management”, Wisconsin Law Review, pp. 831-917. Stipanowich, T. (2004), “ADR and the vanishing trial: the growth and impact of alternative dispute resolution vanishing trial”, Journal of Empirical Legal Studies, Vol. 1, pp. 843-912. Stulberg, J. (1997), “Facilitative versus evaluative mediator orientations: piercing the grid”, Florida State University Law Review, Vol. 24, pp. 985-1005. Thompson, P. (2004), “Enforcing rights generated in court-connected mediation – tension between the aspirations of a private facilitative process and the reality of public adversarial justice”, Ohio State Journal of Dispute Resolution, pp. 510-72. Thomson, D. (2001), “A disconnect of supply and demand: survey of forum members’ mediation preferences”, Construction Law, Fall, pp. 17-21. Tronson, B. (2006), “Mediation orders: do the arguments against them make sense?”, Civil Justice Quarterly, Vol. 25, July, pp. 412-18. Welsh, N. (2001a), “Making deals in court connected mediation: what’s justice got to do with it?”, Washington University Law Quarterly, Vol. 9, pp. 787-861. Welsh, N. (2001b), “The thinning vision of self-determination in court connected mediation: the inevitable price of institutionalisation?”, Harvard Negotiation Law Review, Vol. 6, pp. 1-96. Wissler, R. (2004), “Barriers to attorneys’ discussion and use of ADR”, Ohio State Journal on Dispute Resolution, Vol. 19, pp. 460-508. Woolf, (The Right Honourable the Lord Woolf, Master of the Rolls) (1995), Access to Justice: The Interim Report, HMSO, London. Woolf, (The Right Honourable the Lord Woolf, Master of the Rolls) (1996), Access to Justice: The Final Report to the Lord Chancellor on the Civil Justice System in England and Wales, HMSO, London.

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Further reading Baruch Bush, R. (2002), “Substituting mediation for arbitration: the growing market for evaluative mediation and what it means for the ADR field”, Pepperdine Dispute Resolution Law Journal, Vol. 3 No. 1, pp. 111-28. Cheung, S. and Suen, H. (2002), “A multi-attribute utility model for dispute resolution strategy selection”, Construction Management and Economics, Vol. 20, pp. 557-68. Wissler, R. (2002), “Court-connected mediation in general civil cases: what we know from empirical research”, Ohio State Journal on Dispute Resolution, Vol. 17, pp. 641-703. Corresponding author Penny Brooker can be contacted at: [email protected]

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Common sense applied to the definition of a dispute

Definition of a dispute

Angus Reid Entec UK Ltd, Newcastle upon Tyne, UK, and

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Robert C.T. Ellis Leeds Metropolitan University, Leeds, UK Abstract Purpose – The paper seeks to examine how the existence of a “dispute” for the purpose of construction adjudication has been determined and to consider whether direct application of the often cited Halki Shipping Corporation v. Sopex Oils Ltd could lead to a breach of natural justice. Design/methodology/approach – The paper analyses construction adjudication enforcement judgments since 2000 and considers the different approaches taken by the various judges. Cases are considered chronologically and are grouped into distinct phases to demonstrate the development of the law in this area. Findings – There is no definitive meaning of “dispute” and the existence of a dispute in construction adjudication is a subjective issue requiring a practical common-sense approach relying on the facts, the law and policy considerations. If a strict application of Halki is used in such cases, a breach of natural justice may arise whereas a common-sense application of the Halki test, taking cognisance of time-related issues and the original intent of construction adjudication, offers scope to establish a universal policy. Practical implications – The paper provides a historical summary which should encourage parties to adjudication to recognise that many of the court challenges which arise could be prevented, or could be more easily resolved if a reasonable, common sense approach was adopted. Originality/value – The paper provides a comprehensive review of construction adjudication case law relating to the existence of a “dispute” and indicates how the law has developed in this area. Keywords Justice, Dispute resolutions, Construction industry Paper type General review

Introduction In October 2004 Toulmin J gave judgment in the adjudication case of CIB Properties Limited v. Birse Construction[1] and cited the case of Halki Shipping Corporation v. Sopex Oils Ltd[2] as authority for deciding the question of what is a dispute. This was the latest[3] such citation of Halki in a series of adjudication enforcement cases questioning the existence of a “dispute”. Since then, the Court of Appeal has again considered Halki, as well as a number of adjudication cases, as authority for the definition of a dispute in relation to arbitration[4] and it is timely to review the application of this authority in adjudication cases. It is a prerequisite of both adjudication and arbitration that a dispute must exist before such proceedings commence. If there were no dispute, then an appointed adjudicator or arbitrator would have no jurisdiction to decide the matters referred. Provided that a valid appointment exists, the only routes for challenge to enforcement It is with regret that Angus Reid has to announce that Professor Ellis passed away before this Issue was published.

Structural Survey Vol. 25 No. 3/4, 2007 pp. 239-252 q Emerald Group Publishing Limited 0263-080X DOI 10.1108/02630800710772827

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of that decision are to demonstrate lack of jurisdiction or breach of natural justice. Since the first jurisdictional challenge in January 2000, the court has, on a number of occasions, had to consider the existence of alleged disputes including questions as to the definition of the word “dispute” itself. Between 2003 and 2004, there have been similarly based challenges in complex cases where the grounds for challenge developed to include issues of natural justice. In CIB Properties, the primary question for consideration was again whether a dispute had crystallised at the time of referral to adjudication. Since statutory adjudication is relatively recent, the court has applied arbitration judgments as authority in adjudication cases and, despite perceived procedural and temporal differences between adjudication and arbitration, this has become generally accepted. The arbitration case of Halki is accepted as the leading authority for deciding the existence of a dispute but its application in construction adjudication cases has led to considerable debate due to its wide definition of “dispute”. The debate stems from the definition of “dispute” provided by Halki and stated as: . . . there is a dispute once money is claimed unless and until the defendants admit that the sum is due and payable[5].

A significant question relating to this strict application of Halki is its apparent conflict with a fundamental requirement of natural justice, which provides that every party to a dispute must be given a fair opportunity to present its case and to answer the case of its opponent. The “Halki Principle” also appears to conflict with an earlier Court of Appeal judgement in Monmouthshire County Council v. Costelloe & Kemple Ltd[6], where it was held that: There must be both a claim and a rejection of it in order to constitute a dispute[7].

This issue is important for adjudication since these conflicting dicta give rise to uncertainty in the outcome of enforcement proceedings which could adversely affect the perceived efficacy of such court proceedings and be to the detriment of statutory adjudication as a whole. It raises the following question: does the Court of Appeal judgment in Halki provide valid authority for deciding the existence of a construction dispute for the purposes of adjudication, and could its strict application in such proceedings give rise to a breach of natural justice? The application of Halki in adjudication cases A review of the application of Halki in adjudication cases reveals four phases in the development of the law. Phase 1: Fastrack to Watkin Jones In Fastrack Contractors Ltd v. Morrison Construction Ltd, Imreglio UK Ltd[8], a challenge to the adjudicator’s decision on grounds that a claim referred to adjudication was not in fact a “dispute” was rejected. In his reasoning, Thornton J identified “The Requirements of a Dispute”[9] and established a foundation for the application of Halki in such cases. He also considered Monmouthshire and, referring to both, he stated: These cases help in showing that a claim and its submission do not necessarily constitute a dispute, that a dispute only arises when a claim has been notified and rejected, that a rejection

can occur when an opposing party refuses to answer the claim and a dispute can arise when there has been a bare rejection of a claim to which there is no discernable answer in fact or in law[10].

Fastrack was seen as an important case since it provided a basis for the definition of “dispute” for the purposes of adjudication under the Housing Grants, Construction and Regeneration Act 1996 (HGCRA). Lloyd J considered Fastrack in deciding Ken Griffin & John Tomlinson, t/a K & D Contractors v. Midas Homes Ltd[11]. He held that the adjudicator did not have jurisdiction for that part of a referral for which the respondent had had less than ten days to consider material correspondence preceding the Notice of Adjudication. This period was held to be insufficient to allow the respondent “time to consider the claim [and] [. . .] to discuss and to resolve it by agreement”[12]. In Sindall Ltd v. (1) Abner Solland, (2) Grazyna Solland, (3) Solland Interiors (a firm), (4) Solland Interiors Ltd[13], Lloyd J held that a seven-day period was not sufficient time for the Contract Administrator to respond to certain documentation, and his reasoning upheld the decision in Fastrack. Lloyd J stated that: For there to be a dispute for the purposes of exercising the statutory right to adjudication it must be clear that a point has emerged from the process of discussion or negotiation has ended and that there is something which needs to be decided[14].

This judgment was consistent with the development of the law and appeared to establish the need for opposing parties to discuss matters between themselves until a point was reached where the dispute had properly crystallised. This phase ended, however, with Moseley J’s decision in Watkin Jones & Son Ltd v. Lidl UK Gmbh[15], in which the enforcement of an adjudicator’s decision depended on express provisions in a contract under which a claim for payment was considered to be closely analogous to the issue in Halki. The claimant’s argument was upheld on that basis, but Moseley J also stated that: . . . paragraph 28 of Judge Thornton’s decision in Fastrack is irreconcilable with the ratio of Halki and defines the word “dispute” too narrowly. [. . .] I am bound by Halki to find that it is not necessary either to refuse to answer or to reject a claim. Passive failure to admit suffices to constitute a dispute[16].

Phase 2: Nuttall to Costain In Edmund Nuttall Ltd v. R.G. Carter Ltd[17], it was accepted that a dispute existed and that a valid Notice of Adjudication had been served; however, the subsequent Referral Notice was supported by a new report which presented the claim differently. In dismissing the application for enforcement, Seymour J considered Thornton J’s “Requirements for a Dispute”[9] and followed the rationale of Monmouthshire and Cruden Construction Ltd v. Commission for the New Towns[18] without expressly referring to Halki. Later the same year in Hitec Power Protection BV v. MCI Worldcom Ltd[19], Seymour J heard arguments from the parties based upon Halki on the one side and Nuttall, Monmouthshire and Fastrack on the other. He preferred the latter argument and held that the adjudicator had exceeded his jurisdiction. As expected, Seymour J’s definitions of “dispute” in Hitec and Nuttall are similar and consistent with the earlier judgments of Thornton J and Lloyd J.

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Towards the end of 2002, Kirkham J considered the existence of a dispute in Cowlin Construction Ltd v. CFW Architects[20] and, following Lord Denning’s guidance in Monmouthshire, concluded that a dispute did exist at the time a given deadline had expired. She also considered Halki and stated: In my judgment, the approach in Halki is to be preferred. I am guided by the straightforward analysis in that case[21].

Kirkham J’s consideration of Monmouthshire and Halki led to the same conclusion but the direct comparison of these cases was significant since, by emphasising two apparently independent tests, the divergence between Monmouthshire and Halki was highlighted. Carillion Construction Ltd v. Devonport Royal Dockyard Ltd[22] was heard shortly after Cowlin and, despite the availability by then of adjudication precedents, Bowsher J chose to consider arbitration cases for guidance. No direct reference was made to Halki or Monmouthshire, although Bowsher J arrived at his conclusion on the basis of similar arguments to those adopted in the preceding adjudication cases. In Costain Ltd v. Wescol Steel Ltd[23], the respondent sought a declaration that no dispute existed, but Havery J held, “taking a common sense view of the matter”[24], that a dispute did in fact exist. He referred to Fastrack and, possibly in an attempt to reconcile the two schools of judicial thought, identified in Halki four “different meanings, or nuances of meaning” of the word “dispute”[25]. This judgment is valuable for re-establishing the link between Fastrack and Halki and for Havery J’s detailed analysis of the word “dispute” as defined by the latter. Phase 3: Beck Peppiatt to Lovell Beck Peppiatt Ltd v. Norwest Holst Construction Ltd[26] is significant because of the efforts made to reconcile the allegedly conflicting definitions of “dispute”. Before considering the parties’ arguments, Forbes J addressed a question from counsel as to the “unsatisfactory state”[27] of the law with regard to what constitutes a “dispute” for the purposes of adjudication. He refuted the allegation, asserting that the law was satisfactorily stated by Lloyd J in Sindall in a manner which was “easily understood and [. . .] not in conflict with the approach of the Court of Appeal in Halki”[28]. Applying the rationale of Sindall to the facts, he concluded that a dispute did exist for the purposes of adjudication. In Orange EBS Ltd v. ABB Ltd[29], it was argued that because Christmas holidays had intervened between submission of the claim and the Notice of Adjudication, there had been insufficient time to consider the claim. Kirkham J gave significant weight to Forbes J’s decision in Beck Peppiatt. She considered herself “bound by the decision in Halki”[30] and, applying the “simple test in Halki”[31] to the fact that the claim had neither been admitted nor paid, concluded that a dispute had arisen. In view of Forbes J’s approval of the test in Sindall, Kirkham J also considered the question in relation to that test and arrived at the same conclusion. In Lovell Projects Ltd v. Legg and Carver[32], enforcement of an adjudicator’s decision was considered under the provisions of the JCT MW Standard Form, which had similar effect to the HGCRA. Moseley J considered a number of authorities, including his own earlier judgement in Watkin Jones, and observed that:

The cases cited on the meaning of “dispute or difference” in the arguments appear to indicate that there is a divergent stream of modern authority on the meaning of the term . . .[33]

Definition of a dispute

and concluded: These divergent lines of authority are not at present reconcilable[34].

.Phase 4: L&A Properties, AWG and McAlpine London & Amsterdam Properties Ltd v. Waterman Partnership Ltd[35] involved a challenge to an adjudicator’s decision on grounds that there was no dispute in existence. It was contended that material information used by the adjudicator was submitted late in the adjudication proceedings, giving rise to procedural unfairness because the respondent was not given reasonable opportunity to deal with this information. Wilcox J approved the application of Halki in adjudication proceedings and, on that authority, confirmed the existence of a dispute but he subsequently considered the issues of procedural fairness and rejected the application for enforcement on the latter grounds. Similar complexity occurred in AWG Construction Ltd v. Rockingham Motor Speedway Ltd[36], where the respondent contended that the adjudicator had no jurisdiction and/or had failed to act impartially in relation to the late submission of new information. Toulmin J considered many of the earlier judgments and stated the importance of approaching “the question of what is a dispute with robust common sense which takes into account the nature of the dispute and the manner in which it has been presented”[37]. He approved the application of Halki but concluded that the respondent had been prejudiced by lack of opportunity to give a fully considered response to additional material and held that the adjudicator’s decision should not be enforced. In McAlpine PPS Pipeline Systems Joint Venture v. Transco plc[38], Toulmin J considered arguments for enforcement of an adjudication in which the respondent had complained to the adjudicator about unfairness and lack of clarity as to the details of the claim. In giving judgement to dismiss the application for enforcement, he concluded: The problem in these cases is often not whether there is a dispute, the point considered by the Court of Appeal in Halki [. . .] but what is the nature of the dispute or difference which has been referred to the adjudicator? [. . .] Each case must be considered separately[39].

Phase 4 identified new grounds of challenge by extending the arguments beyond the definition of “dispute” to that of natural justice. Nonetheless, L&A Properties and AWG both approved Halki. McAlpine distinguished Halki and considered the issues of natural justice directly. These designated phases of development have now been succeeded by Toulmin J’s judgment in CIB Properties, where the respondent challenged the adjudicator’s decision on grounds that, inter alia, there was no crystallised dispute since negotiation was ongoing at the time of referral and that the dispute was too complex for adjudication. In considering these arguments, Toulmin J referred to Halki, Sindall, L&A Properties and AWG and ruled that: (1) The test was whether, applying common sense, a dispute had crystallised [. . .] it was clear that, in all the circumstances, a dispute had in fact crystallised by the time the notice of referral to adjudication was given.

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(2) The question was not whether the dispute was too complicated for adjudication, but whether the adjudicator could reach a fair decision in the light of the time limits agreed by the parties. [. . .] In the instant case [. . .] the test [. . .] enabled the adjudicator to reach a fair conclusion after both parties had been given a proper opportunity to put their respective cases[40].

The background to Halki In Halki, the Court of Appeal considered the existence of a dispute relating to a claim for demurrage under a shipping charter party where the arguments were complicated by special circumstances affecting the claimant’s application for summary judgment following commencement of the Arbitration Act 1996. This act replaced the Arbitration Acts 1975 and 1979 and Part 1 of the Arbitration Act 1950, and the change to the provisions for stay of legal proceedings is material to discussion of Halki. Under the 1975 Act and Rules of Supreme Court, Order 14, it had been construed that: If the plaintiff to an action which the defendant has applied to stay [to arbitration] can show that there is no defence to the claim, the Court is enabled at one and the same time to refuse the defendant a stay and to give final judgment for the plaintiff[41].

The relevant provisions of s.1(1) of the 1975 Act stated that upon an application to the court to stay the proceedings: . . . the court, unless satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings[42].

This was superseded by s.9 of the 1996 Act which, in otherwise similar wording, omitted the reference to there being “not in fact any dispute between the parties”[42]. Halki therefore established that the 1996 Act removed the courts’ previous discretion under the 1975 Act, which had allowed summary judgment in cases where the lack of a competent defence had been construed as meaning that there could be no dispute. The claimant had contended that: . . . “dispute” means a genuine or real dispute, and that a claim which is indisputable because there is no arguable defence does not create a dispute at all[43]

and the defendant argued that: . . . “dispute” means any disputed claim, and therefore covers any claim which is not admitted as due and payable[43].

It was held that: . . . there is a dispute once money is claimed unless and until the defendants admit that the sum is due and payable[44].

In Halki, the Court of Appeal considered the facts and the arguments in the light of the then new 1996 Act. The essential question was whether there could be a dispute where there was no arguable defence and, in answering that question, the resulting definition of “dispute” must have been influenced by the statutory background, the relevant facts and, particularly, the presentation of the arguments. The above dictum, the “Halki Principle”, must be construed in this light.

Notwithstanding their very different factual circumstances, Monmouthshire and Cruden have also been cited as authority for the existence of a dispute in adjudication cases. This would appear to establish acceptance generally of arbitration judgments as authority for adjudication disputes, but these cases also highlight that due regard must be paid to whether application of a particular authority to factually different circumstances can affect its validity.

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245 Can the existence of a dispute be decided absolutely? Defining the point at which a dispute crystallises is fundamental to the debate. The HGCRA and its associated Scheme for Construction Contracts (England and Wales) Regulations 1998 do not include a definition of the word “dispute”, but implementation of these statutes depends upon identifying when a dispute actually arises. Gilliland J stated that “dispute” is an ordinary English word which should be given its ordinary meaning[45] and Seymour J quoted from the Shorter Oxford Dictionary in deriving the definition applied in Nuttall[46]. Keating (Furst and Ramsey, 2001; this view has now changed in Furst and Ramsey, 2004) originally cited Fastrack for its definition. In Fastrack, Thornton J attempted to create a general definition of “dispute” by combining Halki and Monmouthshire to establish a definition based wholly on Court of Appeal authority. Thornton J required notification of a claim and opportunity for an opposing party to respond. He provided for the possibility of a party’s refusal to respond but not for a claim being ignored, nor for prevarication. These omissions were identified in Watkin Jones by Moseley J, who considered that “it is not necessary either to refuse to answer or to reject a claim. Passive failure to admit suffices to constitute a dispute”[47] although, in that case, Moseley J did not consider a specific duration for passive failure to turn into a dispute. In Sindall, Lloyd J defined crystallisation by reference to a point emerging from ongoing discussion or the end of negotiation. He thereby established an objective measure by which the duration of an opportunity to respond could be identified from the facts, given that such duration must, in all the circumstances, be a “reasonable time”. It would seem, therefore, that the basis of a universally applicable definition of “dispute” may be construed from Halki and Monmouthshire together with Sindall’s objective measure of reasonable time and the provision for prevarication and passive failure to respond as addressed by Watkin Jones. Forbes J’s caution that “attempts to provide an exhaustive definition of ‘dispute’ by reference to a number of specified criteria are, in my view, best avoided”[48] must also be acknowledged, however. Is a dispute for the purposes of adjudication different from other disputes? Following enactment of the HGCRA, Dyson J had recognised that the tight timescale for adjudication had the potential to result in injustice[49]. Kirkham J later recalled that the original intent of adjudication was to provide a “quick, enforceable, interim decision [. . .] under the rubric of ‘pay now argue later’” (Kirkham, 2004, p. 191, quoting Lord Ackner), but more recently suggested that adjudication has moved on from these early ideals and that it is “now a mainstream post-contractual method of dispute resolution” (Kirkham, 2004, p. 192). She queries whether, in its present form, adjudication is appropriate for post completion dispute resolution considering “the huge difficulties which adjudicators, parties and lawyers face in trying to shoe-horn a complex and paper-heavy case into the adjudication timetable” (Kirkham, 2004, p. 192)

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and she makes reference to “ambush in the context of adjudication”[50] (Kirkham, 2004, p. 193). These comments allude to one of the major differences between adjudication and arbitration, namely, the question of timescale. The statutorily imposed timescale applied to adjudication is of fundamental importance but may inhibit the flexibility to accommodate full consideration of the arguments and the presentation of evidence. In a review of the judgment in L&A Properties, it is suggested that although Wilcox J approved the Halki test for the existence of a dispute in both adjudication and arbitration, he also acknowledged the practical differences between the two dispute resolution processes (Sheridan and Helps, 2004, p. 133). In a direct comparison with litigation, Kirkham J makes reference to the CPR rules, which provide formal pre-action protocols to prevent one party ambushing the other, and she observes: In litigation the CPR rules and the pre-action protocol for the construction and engineering industries are designed to prevent one party ambushing the other. Yet in adjudication, if one believes some commentators, ambush is not only possible, it is a frequently used tactic. If that is true [. . .] there is an undesirable mismatch between the systems (Kirkham, 2004, p. 193).

Hence these observed differences in arbitration, adjudication and litigation are attributable principally to issues of timescale and risk of ambush. It must be accepted, notwithstanding that the nature of any “dispute” may be the same, that the respective procedural differences may influence any decision as to the existence of a dispute.

What is the valid authority provided by Halki? In Halki not only did the Court of Appeal affirm the first instance decision but also queried the meaning of the word “dispute”. It has been suggested that in Halki the Court of Appeal set the threshold standard required to establish the existence of a “dispute” at a fairly low level[51]. The Halki Principle was applied in Watkin Jones by Moseley J, who rejected a counter argument based on the Fastrack definition of “dispute”, which he held to be irreconcilable with Halki. Moseley J stated that he was “bound by Halki”[52], but so too must have been Thornton J in Fastrack. Indeed, Thornton J expressly considered the authority of Halki in arriving at his definition of a “dispute”. If the suggested irreconcilability is to make sense, then either one of these judges must have misapplied the authority, or Halki must be capable of application in both cases. In Costain, Havery J revisited Halki and identified additional meanings of the word “dispute”. He observed that: [Halki ] itself supports different meanings, or nuances of meaning, of [“dispute”] as used in an arbitration clause[53]. First, as including any claim which the other party refused to admit or did not pay[54]. Second, a dispute exists where there is a claim which the defendant refuses to admit and refuses to pay[55]. Third, there is a dispute once money is claimed unless and until the defendants admit that the sum is due and payable[56]. Fourth, there is a dispute where a party has refused to pay a sum which is claimed or has denied that it is owing[57].

In the light of this judgment, it is accepted that in Halki there are several dicta that can be considered as valid authority, of which one is expressed as the Halki Principle, and that these can be applied singly or in combination as may be apposite in a given case. How is the authority of Halki applied in a construction dispute? In Fastrack, Thornton J considered both Halki and Monmouthshire to arrive at a composite definition of dispute. The need to combine these authorities suggests that Halki on its own did not adequately address the issues in Fastrack, and it is necessary to consider Thornton J’s definition in relation to Havery J’s four meanings of “dispute” in Halki. The first and second meanings in Halki are consistent with Thornton J’s finding that a dispute exists “when an opposing party refuses to answer the claim”[58] but, in Fastrack, Thornton J did not differentiate between refusing to pay and simply not paying. The third meaning, the Halki Principle, has no equivalent in Fastrack; indeed, Thornton J stated that “a claim and its submission do not necessarily constitute a dispute”[58]. By inclusion of the word “necessarily”, Thornton J appears to have contemplated that a claim and its submission could in fact constitute a dispute. It is concluded, therefore, that although his definition does not embrace Havery J’s third meaning, neither does it exclude it. The fourth meaning in Halki is addressed by Thornton J’s findings that there is a dispute “when a claim has been notified and rejected [. . .] and [. . .] when there has been a bare rejection of a claim to which there is no discernable answer in fact or in law”[58]. Two conclusions emerge: (1) under the first meaning in Halki, a dispute can arise from a party simply not paying against a claim; and (2) the third meaning in Halki is not irreconcilable with the dictum that “a claim and its submission do not necessarily constitute a dispute”[58]. If the judgments in Watkin Jones and Fastrack are both correct, then it would appear that Moseley J’s statement as to the irreconcilability of Fastrack and Halki must have been based strictly upon the Halki Principle. He appears not to have taken account of the breadth of meanings of “dispute” discussed above and had not considered fully the significance of the word “necessarily” in Thornton J’s definition. It seems highly likely that Moseley J’s statement polarised the definitions of dispute as provided by Fastrack and Halki, resulting in two separate and irreconcilable tests, the “narrow” and the “wide” definitions of dispute, as supported by the analysis of adjudication cases during Phase 2 and Phase 3. These examples reinforce a doubt as to Halki’s strict applicability in certain cases and highlight the need for care to be taken to ensure that an authority is valid in the context of its application. It may be deduced from the above analysis that Halki can be validly applied to construction disputes but that care is needed to ensure correct application of the authority. The above examples show that Halki can be validly applied in a number of ways ranging from the “strict” form as defined by a literal interpretation of the Halki Principle to the “Fastrack compatible” interpretation as identified in Costain. In each instance the facts in any given case will be relevant and, indeed, it has been suggested that it is not right to baldly apply a case called Halki to determine the existence of a

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“dispute” but to find out “what is the true range of the dispute” and to bring it all to adjudication (Bingham, 2004). What is meant by breach of natural justice in adjudication? The risks of evidential ambush, the effects of short timescales and the manner in which these issues have been addressed in court challenges to adjudicators’ jurisdiction have all been identified and analysed in the preceding sections of this paper. The initial question raised by the authors in the final paragraph of the Introduction must now be considered to assess if strict application of Halki in adjudication proceedings could give rise to a breach of natural justice. In L&A Properties, Wilcox J considered risks of evidential ambush and short timescales in a comprehensive review of earlier adjudication cases and observed that: The risks referred to there are very real. But the position of a respondent in such an adjudication which may well be procedurally unfair is safeguarded because the Court would be slow to dilute the requirements of natural justice[59].

Riches and Dancaster (2004) consider the requirements for “procedural fairness” in adjudication and conclude that “the adjudicator must be, and must be seen to be, disinterested and unbiased; every party to the dispute must be given a reasonable opportunity to present its case and to answer the case of its opponent” (p. 192). This requirement is closely aligned with Thornton J’s defined requirements for the existence of a dispute in Fastrack. Some authors take this argument further, suggesting that a “dispute argument [. . .] is [. . .] essentially a natural justice argument masquerading as an issue relating to jurisdiction” (Sheridan and Helps, 2004, p. 132). The requirements of natural justice are themselves a direct cause for court involvement in adjudication, with more than 20 (Sheridan and Helps, 2003) judgments following their own lines of authority. In general these cases relate to issues of procedural fairness based on the behaviour of the adjudicator and do not raise questions as to the adjudicator’s jurisdiction or the existence of a dispute. Wilcox J addressed both “dispute” and “natural justice” grounds of challenge to the adjudicator’s decision in L&A Properties. In response to the former he held that there was a dispute and regarding the latter, held that: . . . [the adjudicator] based his decision upon Mr Baker’s evidence without giving [the respondent] a proper opportunity to deal with it. That was a substantial and relevant breach of natural justice[60].

The finding of a substantial breach of natural justice in this case due to the respondent not having a proper opportunity to deal with the issues appears to bear close similarities to the earlier arguments on the “dispute” grounds. In AWG, Toulmin J concluded his findings on the natural justice question, stating: The injustice in the procedure lies in the justified claim of AWG that the adjudicator failed to afford AWG a proper opportunity to give a fully considered response to the additional material [. . .] AWG was clearly prejudiced by its inability to do so[61].

Toulmin J addressed these issues again in McAlpine, where he considered “whether or not Transco was prejudiced by the adjudicator permitting McAlpine to serve evidence at what was a very late stage in the procedure[62], and held that there was a real prospect of demonstrating such prejudice.

There are clear similarities in the circumstances leading to the challenge of an adjudicator’s decision on grounds of jurisdiction and procedural fairness. It is also apparent, however, that the acknowledged close relationship between the issues of “dispute” and “natural justice” did not frustrate attempts to consider each of the arguments separately. Whilst the finding as to jurisdiction varied in all three cases, a breach of natural justice was established as a result of the late submission of evidence or submission of new information without the respondent having been given sufficient opportunity to deal with it. It is this form of breach of natural justice that is material to the application of Halki. Conclusions There is no definitive meaning of the word “dispute” but, in the light of all the authorities, some guidance is available[63]. All the circumstances in a given case must be considered and, where information or evidence is to be reviewed by a party, a reasonable time period must be afforded by which to respond. Reasonableness will, inter alia, depend upon the facts, the nature of the procedure adopted and any express agreements between the parties. Subject only to practical differences in procedure, which are predominately time-related, it is clear that Halki is an accepted authority for the definition of dispute in both arbitration and adjudication. However, a number of interpretations of dispute have been identified in Halki, including that of the “Halki Principle”, which is considered the “strict” interpretation of this authority. A close relationship has been established between challenges to an adjudicator’s jurisdiction arising from the existence of a dispute and those related to procedural unfairness arising from a breach of natural justice. Timescale and risk of ambush are crucial – both parties must have reasonable opportunity to present their case and respond to counter arguments. This review indicates that for a dispute to crystallise and for the requirements of natural justice to be met, the central issue is time, particularly time for a party to respond. However, Halki does not make provision for time before a claim becomes a dispute. The Court of Appeal provided a tailored response to the facts and arguments presented, hence care must be taken if Halki is to be applied to determine the existence of a dispute in construction adjudication. What Halki did was to set a low threshold[64] for the definition of a dispute for general application to construction adjudication. It must therefore be considered in combination with an implied “reasonable opportunity to respond” or else must be combined with another authority to establish an objective measure of time. This would seem to be a common sense approach to the “dispute” argument in the absence of an absolute definition of “dispute”. A “common sense” approach is expressly identified in only three of the adjudication cases reviewed[65], however, which may explain the length and depth of the debate on this issue. Toulmin J’s recent application of a common sense approach in CIB Properties appears to relate to an argument based on a literal application of Lloyd J’s dicta in Sindall. Similarly, it was an earlier literal application of the Halki Principle by Moseley J in Watkin Jones that appeared to be the origin of the debate. In Watkin Jones, the nature of the argument was similar to that addressed by the decision in Halki and therefore, a direct, literal application of the Halki Principle was appropriate. It is submitted that

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this approach influenced Moseley J’s and others’ view of Halki’s authority and the manner in which it came to be applied to construction adjudication disputes more generally. Conversely, Lloyd J, Seymour J and others preferred the approach of Fastrack with its qualified application of Halki as the more appropriate authority in adjudication disputes. Establishing the existence of a dispute in adjudication continues to be a subjective issue requiring a practical common sense approach[66]. It relies on the facts, the law and policy considerations which arise in challenges to adjudication decisions and, in the authors’ opinion, if strict, or literal, application of Halki is applied in such cases, without a time provision, it is submitted that a breach of natural justice will almost certainly arise. What the argument shows is that a common sense application of the Halki test, taking cognisance of time-related issues and the original intent of adjudication, offers scope to establish a universal policy. A literal application of the Halki Principle in construction adjudication proceedings without any such qualification is incorrect in principle and could give rise to a breach of natural justice. Notes 1. [2005] BLR 173. 2. [1998] 1 Lloyd’s Rep. 465 (CA). 3. Based on the authors’ review of Adjudication Case Database [Internet], NADR UK Ltd, 20 December 2006, available at: www.nadr.co.uk/articles/published/AdjudicationLaw ReportsIndex/ADJUDICATIONDATEDATABASE.pdf (accessed 1 January 2007). 4. Collins (Contractors) Ltd v. Baltic Quay Management (1994) Ltd [2004] EWCA Civ 1757, and Amec Civil Engineering Ltd v. Secretary of State for Transport [2005] EWCA Civ 291. 5. Ibid., Swinton Thomas at 487 – the “Halki Principle”. 6. [1966] 63 LGR. 429 (CA). 7. Ibid., as per Denning MR. 8. [2000] BLR 168. 9. Ibid., headnote to paragraph 20, see paragraphs 20-29. 10. Ibid., Thornton J at paragraph 28. 11. [2000] WL1544681. 12. Ibid., as per Lloyd J. 13. [2001] HT-01-129. 14. Ibid., Lloyd J at paragraph 15. 15. [2002] HT-02-121. 16. Ibid., Moseley J at paragraph 9. 17. [2002] EWHC 400 (TCC). 18. [1995] 2 Lloyd’s Rep. 387. 19. [2002] WL31947437. 20. [2003] EWHC 60 (TCC). 21. Ibid., Kirkham J at paragraph 88. 22. [2002] HT-02-395.

23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50.

51. 52. 53. 54. 55. 56. 57.

[2003] EWHC 312 (TCC). Ibid., Havery J at paragraph 5. Ibid., at paragraph 6. [2003] EWHC 822 (TCC). Ibid., at paragraph 2. Ibid., Forbes J at paragraph 4. [2003] EWHC 1187 (TCC). Ibid., Kirkham J at paragraph 25. Ibid., Kirkham J at paragraph 41. [2003] BLR 452. Ibid., Moseley J at p. 464. Ibid., at p. 465. [2003] WL23014713. [2004] EWHC 888 (TCC). Ibid., Toulmin J at paragraph 144. [2004] WL 1808940. Ibid., Toulmin J at paragraph 130. CIB Properties, available at: www.nxtpresa.butterworths.co.uk Halki, Hirst LJ at 467. Arbitration Act 1975 (c.3) s.1(1). Halki at 468. Halki; Swinton Thomas at 487 citing Lord Templeman in Ellerine Bros Pty Ltd and Another v. Klinger [1982] 2 All ER 737 (CA); the “Halki Principle”. Cruden; Gilliland J at 393. Nuttall; Seymour J at 35. Watkin Jones; Moseley J at paragraph 9. Beck Peppiatt; Forbes J at paragraph 4. Macob Civil Engineering Ltd v. Morrison Construction Ltd [1999] 1 BLR 93; Dyson J at paragraph 14. The term “ambush” is here used to describe the practice whereby the referring party may carefully, over a period of time, prepare arguments which are then referred to adjudication without the matters in question being adequately explored with the responding party. This may be considered to give the claimant an advantage since the responding party will have only a limited period in which to prepare his response. Commentary to 2003 BLR 316. Watkin Jones; Moseley J at paragraph 9. Costain; Havery J at paragraph 6. Halki [1998] 1 WLR, CA; headnote p. 727. Ibid., p. 746, letter A. Ibid., p. 761, letter G. Ibid., p. 761, letter H.

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58. 59. 60. 61. 62. 63.

Fastrack; Thornton J at paragraph 28. L&A Properties; Wilcox J at paragraph 146. L&A Properties; at paragraph 181. AWG; at paragraph 170. McAlpine; at paragraph 153. Collins (Contractors) Ltd v. Baltic Quay Management (1994) Ltd [2004] EWCA Civ 1757; Clarke LJ at paragraphs 61- 63. 64. Commentary to 2003 BLR 316. 65. Costain at paragraph 5; AWG at paragraph 144; CIB Properties at paragraph 19. 66. All In One Building & Refurbishments Ltd v. Makers UK Ltd [2005] EWHC 2943 TCC; Wilcox J at paragraph 21.

References Bingham, T. (2004), “Capper’s way”, Building, 9 July, available at: www.tonybingham.co.uk/ column/2004/20040709.htm (accessed 23 October 2004). Furst, S. and Ramsey, V. (2001), Keating on Building Contracts, 7th ed., Sweet & Maxwell, London. Furst, S. and Ramsey, V. (2004), Keating on Building Contracts: First Supplement to the Seventh Edition, Sweet & Maxwell, London. Kirkham, F. (2004), “Tomorrow and tomorrow and tomorrow: Keynote Address to the Adjudication Society Conference, November 2003”, Construction Law Journal, Vol. 20 No. 4, pp. 189-96. Riches, J.L. and Dancaster, C. (2004), Construction Adjudication, Blackwell, Oxford. Sheridan, P. and Helps, D. (2003), “Construction Act Review – third annual cumulative case law subject index”, Construction Law Journal, Vol. 19 No. 8, pp. 450-76. Sheridan, P. and Helps, D. (2004), “Construction Act Review – adjudication and natural justice”, Construction Law Journal, Vol. 20 No. 3, pp. 123-36. Corresponding author Angus Reid can be contacted at: [email protected]

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The changing framework for conservation of the historic environment John Hudson and Philip James

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Research Institute for the Built and Human Environment, University of Salford, Salford, UK Abstract Purpose – The paper seeks to examine the background to the UK Government White Paper on the conservation of the built environment, and particularly to identify drivers for legislative change and possible consequences of new legislation for conservation practice. Design/methodology/approach – A critical review is undertaken of major trends in conservation and management of the historic built environment that may affect future conservation legislation. Findings – Three major trends are identified: the development of holistic landscape-based approaches to conservation; the widening of heritage values to include those of particular groups and communities as well as those based on academic disciplines; and a shift from control-based approaches to conservation towards those based on dynamic management of change. Each of these trends presents opportunities and challenges in framing of legislation and policy. Research limitations/implications – This is a wide and fast-developing field. The UK Government’s proposals for legislation are not yet in place and the framework for debate may change. Practical implications – There has been a long period of stability and consolidation in the legal framework for conservation of the historic built environment. It is likely that we are moving towards a period of accelerating change in which accepted values may be challenged and new skills may be required. Originality/value – The paper draws together a diverse set of themes that are likely to affect the future development of conservation legislation. Keywords Buildings, Conservation, Legislation, Environmental management, United Kingdom Paper type Conceptual paper

Introduction The legal framework for the protection of historic buildings in England is undergoing its first major revision since the Planning (Listed Buildings and Conservation Areas) Act 1990 and its associated planning policy guidance (Department of the Environment, Transport and the Regions and Department of National Heritage, 1994). This is part of a wider review of the UK Government’s approach to conservation practice initiated with the publication of the “Power of Place” report in 2000 (English Heritage, 2000) and subsequently developed through a series of reports and consultation papers (Department for Culture, Media and Sport, 2001, 2003, 2004a, b, 2005a, b, c; English Heritage, 2000, 2003, 2006; Beacham, 2006). A White Paper setting out the reforms is, after some delay, scheduled for publication in early 2007; although it had not been published at the time of writing the key proposals are summarised by the Department for Culture, Media and Sport (2006) as: . New unified register, bringing together the systems of listed buildings, scheduled monuments, and registered parks, gardens and battlefields.

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Unifying the listed building and scheduled monument consent regimes. Introduction of optional partnership agreements between the owners of a site, local authorities, English Heritage and local communities to be employed as alternative proactive management regimes. Give English Heritage statutory responsibility for designating at a national level. This responsibility currently rests with the Secretary of State for DCMS. Introduce a statutory right of appeal to the Secretary of State on decisions to designate or not designate a site. New overarching statutory definition of historic assets.

In part these proposals can be seen as a response to recognised weaknesses in the existing system; for example the Department for Culture, Media and Sport (2003) identified the need for greater simplicity, openness, flexibility and rigour. However, there has also been recognition that the concepts of “historic environment” and “heritage” have widened considerably since listing and conservation areas were first developed and that the current forms of statutory protection, with their focus on physical fabric, may not fully reflect this broader understanding (Turnpenny, 2004). This poses the question of whether the new proposals are radical enough to meet the demands of this changing perception of the historic environment and its value. This paper will explore some of the background to the White Paper in the context of these changes in thinking and discuss possible outcomes and their consequences. Monuments and landscapes The listing of buildings and the designation of conservation areas as being of “special architectural or historic interest” has been the primary statutory means of protecting historic buildings and areas in the UK. Buildings and other structures may also be scheduled as ancient monuments under the Ancient Monuments and Archaeological Areas Act 1979, usually when they are of great importance but have no economic use (Ross, 1991). In their essence these systems of protection have two components: (1) there is a process of selection under which certain structures or areas are identified as being of special interest and, therefore, worthy of protection; and (2) there is a process of control under which proposals for change to these structures or areas have to be authorized and enforcement action is taken against any unauthorized work. One effect of this system of heritage protection is that it makes a clear distinction between structures and areas that are afforded special protection and those that are not. Although the process of selection is not intended to imply that structures or areas that are not selected are of no interest it can unintentionally have that result; isolated protected monuments become islands in a sea of little historic interest. This tension between the protected and the unprotected has long been recognized and attempts have been made to address it. One such attempt was the former non-statutory Grade III listing that identified buildings of local interest that did not meet the criteria necessary for statutory Grade II listing; this grading drew attention to buildings that should be given special consideration under normal development control mechanisms but did not afford special protection under the heritage legislation (Ross, 1991; Mynors, 2006).

Although the use of local lists remained patchy for some time it has recently undergone something of a revival and they can now be adopted as supplementary planning documents under the Town and Country Planning (Local Development) (England) Regulations 2004. Another attempt was the empowerment of local authorities under the Civic Amenities Act 1967 and later consolidating legislation to designate conservation areas; this recognised that historic areas, rather than just individual buildings or structures might have “special architectural or historic interest” and granted them extra measures of protection (Ross, 1991; Mynors, 2006). However, this just raised the issue to one of areas rather than individual structures; conservation areas were distinguished from other areas that could be regarded as relatively unimportant. Archaeological practice has gone rather further than historic building practice in this respect with PPG 16 Archaeology and Planning setting out clear procedures by which unscheduled archaeological sites could be dealt within the normal development control system (Department of the Environment, 1990). The guidance for historic buildings and areas set out in PPG 15 (Planning and the Historic Environment) is more limited. It recognizes that the preservation of certain designated elements of the broader historic environment such as registered historic battlefields and registered historic parks and gardens should be treated as a material consideration in the determination of planning applications. However, it does not set out any processes for dealing with unregistered areas under the ordinary planning system equivalent to those contained in PPG 16. In contrast to the site-specific protection systems for historic buildings and areas, there has been the development of a school of thought that focuses on the historic dimension of the landscape as a whole. This presents a rather different view of the historic environment, which, if it is to be acted upon, may require a different type of protection from that afforded by statutory designation. An important element of this view has been the concept of a “cultural landscape”, a term that has been defined in several ways but broadly implies a landscape that has been shaped by human activity and reflects the society that created it (Fowler, 2000). Unesco, for example, defines cultural landscapes as “cultural properties” that represent the “combined works of nature and of man” that are “illustrative of the evolution of human society and settlement over time, under the influence of physical constraints and/or opportunities presented by their natural environment and of successive social, economic and cultural forces, both external and internal” (Unesco, 2005, p. 83). However, cultural landscapes, as with conservation areas, designate specific areas as being of special interest: Unesco has, for example, designated 50 cultural landscapes as World Heritage Sites (Unesco, 2006). This idea of a cultural landscape can be broadened to encompass the whole man-made environment. In Britain a seminal work in this respect was Hoskins’ (1988) The Making of the English Landscape, first published in 1955, in which he demonstrated that the whole pattern of the landscape was the outcome of a complex process of historical evolution and that everyday detail such as hedgerows and pathways could be important historical evidence. More recently an integrated, holistic approach to landscape protection and planning has emerged (Scazzosi, 2004). This is encapsulated in the Council of Europe’s (2000) European Landscape Convention to which the UK gave its signature in 2006; the Convention encompasses the historic element within an integrative approach to the economic, social and environmental

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dimensions of landscape. In technical terms this interest in the broad historical landscape has been accompanied by the development of area-based approaches that attempt to map and describe the historic character of large areas. In the UK this approach is known as historic landscape characterisation, and has developed partly as an incorporation of the historic element into the broader approach of landscape character appraisal. This uses area-based mapping methods including Geographic Information Systems (GIS). The results are maps and descriptions that can be produced to various levels of detail typically classifying areas into particular historic landscape types (Turner, 2006; Clark et al., 2004). It is intended that such maps will be used for a variety of purposes including land use planning and contextual information for development control (Fairclough, 2001; Grenville and Fairclough, 2004; Clark, 2004). The potential for historic landscape characterisation as a means to develop a broader approach to heritage conservation has been recognized in recent UK Government thinking (Department for Culture Media and Sport, 2001). It has been used as a planning tool for areas subject to major growth programmes or regeneration initiatives such as the M11 Corridor, the Milton Keynes urban expansion programme, the Pathfinder housing market renewal programmes and the Thames Gateway development. In such contexts historic landscape characterisation can be used, for example, to determine the sensitivity of particular historic areas to new development (Went, 2004). Further developments are taking place in urban archaeology (Thomas, 2004), farmsteads (Lake, 2004) and green space (Hooley, 2004). For rural settlement a further development is provided through the spatial planning system. Village Design Statements (VDS) and Parish Landscape Statements (PLS) can be integrated within broader landscape character assessment methodology and also take input from the conservation legislation system (Hooley, 2004). Early examples of VDSs and PLSs adopted into the spatial planning system as Supplementary Planning Guidance (SPG) are those for the parishes of Weaverham and Burwardsley in Cheshire (Weaverham, 2005; Burwardsley, 2005). In addition to providing a means of linking local planning decisions to landscape character appraisal, VDSs and PLSs also provide a methodology for local community involvement in the framing of spatial planning guidance and potentially also of conservation planning guidance; this point will be developed further in the next section. Since the adoption of the documents relating to Burwardsley and Weaverham the spatial planning system has undergone some reform. The Planning and Compensation Act of 2004 set up Local Development Frameworks (LDF) and Supplementary Planning Documents (SPD). SPDs form the basis for planning decisions at a local level within the broader framework of the LDF. Ongoing work within Cheshire is taking more recent VDSs and PLSs through the new procedures with a view to their adoption as SPDs. To summarise, a much broader concept of heritage is emerging, based on the historic value of whole areas rather than individual monuments or special places. The proposals for reform of the legal framework for heritage protection in the UK recognize this changing concept to some extent, particularly in the form of a unified register and an overarching statutory definition of historic assets. However, the register, as currently described, appears to be a single repository for data on different types of historic designation rather than a fundamental change in approach. Under the new proposals it seems that the system will still work largely on the basis of statutory protection of individual structures, sites and areas rather than the development of new

approaches to dealing with the historic element of the landscape as a whole. The overarching statutory definition of historic assets may help but it is unclear at this stage what this will be. The reforms may offer greater administrative convenience and perhaps help to streamline the consent process but do not appear to contain much that is different from existing practice. Inclusivity and participation The widening of the idea of built heritage from individual monuments to historic landscapes has been one aspect of recent trends in conservation thinking. Closely related has been a debate on the issues of inclusivity and participation in the historic environment. This has encompassed both an outreach to social groups who have traditionally not had much involvement in heritage issues (English Heritage, 2000; Department for Culture Media and Sport, 2001, 2002) and a need for greater involvement of those affected by the conservation legislation such as owner of listed buildings (Department for Culture, Media and Sport, 2003). This is consistent with the wider planning policies embracing the concepts of sustainable communities as embodied in recent policy planning statements (Office of the Deputy Prime Minister, 2004, 2005). The recent debate must be seen against the traditional approach in which protection of heritage has largely been the preserve of expert knowledge with criteria for designation of historic buildings and scheduled monuments being centrally determined. Lists and schedules have been compiled by specialists with the knowledge to interpret those criteria. The criteria themselves have been primarily based on architectural, archaeological and historic values as developed in relevant academic disciplines. In the case of listed buildings there has been a strong emphasis on aesthetic value. The community at large and the owners and occupiers of individual buildings have had very little input into the process. The limitations of the “expert” approach to conservation have been recognized. Lowenthal’s (1985) work has demonstrated a range of reasons for interest in the past which go well beyond those encapsulated in the designation process. In terms of practice the Burra Charter produced by ICOMOS Australia and first adopted in 1979 has been extremely influential (Marquis-Kyle and Walker, 2004). The Burra Charter for the first time set out an explicitly “values driven” approach to conservation that recognized that different individuals and groups might value the historic environment in different ways. It also laid out a conservation process that would be grounded in understanding the significance of a place as it was valued by different individuals and groups: this would lead to the development of a Conservation Plan through which the significance of a place might be maintained over time (Semple Kerr, 2000). The Burra Charter and the idea of the conservation plan have become influential internationally, including in the UK, and form an important part of the background to the discussion on inclusivity and participation. More recently the Council for Europe Framework Convention on the Value of Cultural Heritage for Society (the Faro Convention) has emphasised the relationship between cultural heritage, quality of life, sustainable development and public participation (Council of Europe, 2005). This convention is likely to have an increasing impact on conservation planning in the future. The UK Government and its agencies have recognized a need for greater inclusivity and participation in the area of the historic built environment. English Heritage’s (2000)

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“Power of Place” report, based on evidence from a MORI poll, identified that many sections of the community feel excluded from the historic environment and that decision-making processes concerning it do not take their own personal heritage into account. The report suggests a need for greater use of the historic environment in education, greater notice of the traditions of minority ethnic communities, more concern for the needs of people with disabilities, greater general participation and inclusiveness in decision making and a particular emphasis on the role of the voluntary sector. These themes were further developed by the Department for Culture, Media and Sport’s (2001) report “The Historic Environment: A Force for Our Future”. In particular it recognized the dilemma that exists between the expert approach to statutory designation and the wider and more diffuse sense of heritage in the community: We are rightly proud of the statutory designation systems which have served to protect our historic buildings, monuments and archaeological sites. Informed decision-making to identify and safeguard the most significant examples of historic fabric will always continue to be a primary responsibility across the whole of the sector. However, the designation system does serve to reinforce the sense that the historic environment can be defined precisely, quantified even, in terms of formally listed buildings or scheduled monuments. These decisions are taken by central government on the advice of professionals within a framework of national criteria but do not always take account of other factors which might be of importance to the local community. Yet the value a community places on a particular aspect of its immediate environment might be a critical factor in getting that community to engage in local planning or regeneration issues (Department for Culture, Media and Sport, 2001, p. 30).

More recently the Heritage Counts Report 2006 has argued that heritage has a key role in promoting community regeneration and identity (Historic Environment Executive Review Committee, 2006). Outside UK Government circles a more radical critique of conventional heritage conservation is emerging. Work by the Getty Conservation Institute (Avrami et al., 2000) has emphasised that conservation has been too focused on technical solutions rather than on the understanding of cultural significance and social values. Turnpenny (2004) emphasised the importance of intangible as well as tangible heritage, arguing that it is the associative values of a place that matter to people and that value is not an intrinsic property of a material asset. Legislation, however, is focused on physical fabric rather than with wider spiritual, social and traditional values. A consequence of this is that government attempts at community participation in conservation have been about explaining why places have been designated, and the consequences of this, rather than finding out why people value places. Waterton (2005), drawing on experiences of the Hareshaw Linn Community Project in Northumberland, UK, similarly emphases the importance of intangible values to communities and that the heritage management process “cannot be reduced to the technical and scientific practice it is often assumed to be”. Schofield (2005) considers the problems of considering the very recent past and its meanings to different individuals and groups in the context of the re-evaluation of the historic landscape at Twyford Down, the site of an extension of the M3 motorway in the 1980s and the subject of major environmentalist protests. The motorway project involved the removal of two scheduled monuments and a site of special scientific interest. Scofield emphasises the political nature of the subsequent re-evaluation of the historic landscape of Twyford Down and particularly the decision of the DCMS to exclude a monument to the

environmental protest against the motorway development when drawing up a schedule of the area; this decision was against the advice of English Heritage. In terms of practical actions, Common Ground (2006) has been campaigning to promote local social and environmental values. In the previous section the possibility of using VDSs and PLSs as means of enabling local communities to participate in the development of local planning guidance was discussed (Burwardsley, 2005; Weaverham, 2005). In the examples given of the VDSs and PLSs for the villages of Weaverham and Burwardsley the documents were prepared by working groups of local residents in partnership with their local communities. Village community groups were involved and open days held in which the community took part in activities describing and defining the local natural and built environment. The documents grew out of these activities and, once drafted, they were referred back to the local communities for further comment. What emerges from endeavours such as these is a methodology for making explicit the values local communities hold for their environments and incorporating these values into the spatial planning system. This could, in principle, be extended into the conservation planning system. Although the examples given in the previous paragraphs indicate a widening of heritage values and a greater degree of involvement of local agendas in conservation decision making there is also a counter trend to this. This can be seen, somewhat paradoxically, in the drive towards greater openness, transparency and accountability in the conservation planning process in the UK. The focus of this debate has been primarily on the effects of designation on the owners of historic property; this includes the initial decision to designate and the operation of statutory control systems such as listed building consent. The argument is that openness, transparency and accountability need nationally defined, and completely specified systems that will apply equally in all locations. An example of this is the Department for Culture, Media and Sport’s (2005c) “The revisions to the principles of selection for listed buildings: Planning Policy Guidance Note 15”. This document gives much greater clarity than was previously available over the criteria for listing buildings by providing selection guides for building types. However, this clarity is gained at the expense of flexibility, the historic buildings inspector responsible for listing having to use a relatively rigid, centrally defined set of criteria against which a decision to list can be made. There is a tension here between centralism and local participation. If designation can only be against predetermined criteria set by central authority then local values must either be ignored or dealt with by supplementary (and, in consequence, probably less effective) systems. Management rather than control Control over development has been at the heart of conservation legislation. Works that would affect the character of listed buildings, conservation areas and scheduled monuments requires consent from statutory authorities and an array of restorative and punitive measures are in place for those who carry out work without obtaining this consent. Whilst there seems to be agreement that the system has been relatively successful in protecting the historic built environment it has also been criticised for being over-bureaucratic and slow in its operations. The criteria against which decisions to grant consent are made are also relatively opaque. This has been regarded

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as a particular problem in the commercial sector, where uncertainty and delay over granting of consent can be seen as affecting competitiveness (Drury and McPherson, 2003). The most commonly discussed alternative to a system of consents is the use of management agreements. Such agreements could take a variety of forms but in essence they are a formal agreement between a property owner and a statutory authority that sets out how a particular site will be managed and the classes of work that can be carried out without having to go through a consent procedure (Drury and McPherson, 2003). Such systems may be of particular advantage to owners of large, complex sites and the indications are that the white paper will propose a statutory basis on which management agreements can be drawn up (Department for Culture, Media and Sport, 2006). Heritage Partnership Agreements are being piloted in a number of locations in anticipation of their being given greater prominence in the White Paper (Calladine et al., 2006). There are also a number of precedents for the use of a management-based approach to conservation. These include principles set out for the management of conservation areas (English Heritage, 2005). They also include various partnership regeneration schemes such as the Conservation Area Partnership Scheme (CAPS), the Townscape Heritage Initiative (THI) and the Heritage Economic Regeneration Scheme (HERS) that seeks to establish a co-operative, stakeholder based approach to area-based enhancement of the historic environment. The use of management agreements has come relatively late to the conservation of historic buildings; similar agreements have been used in the conservation of the natural environment for some time and include schemes for Sites of Special Scientific Interest (SSSIs), Environmentally Sensitive Areas (ESAs) and the Countryside Stewardship Scheme (Drury and McPherson, 2003). Agreements have also been used for the management of scheduled monuments; scheduling criteria are more rigorous than those for listed buildings and making a system based purely on consents very difficult to work (Drury and McPherson, 2003). The shift away from control towards managed change also fits in well with the approach developed in the Burra Charter (Marquis-Kyle and Walker, 2004), the concept of the conservation plan (Semple Kerr, 2000; Clark, 1999, 2001). This approach is, in outline, a three-stage process of understanding signficance, developing policy and managing in accordance with that policy. It recognizes that conservation is a dynamic process of managing change rather than a static one of preservation. Beyond the Burra Charter approach the management based approach to conservation also fits well with the attempts to integrate heritage conservation with the wider principles of sustainable development contained in, for example, the Faro convention (Council of Europe, 2005). Conclusions This is an important time for the development of conservation legislation in the UK. Shortcomings of the existing system have been identified and explored over a period of years and a new legal framework is likely to emerge shortly. However, there are a number of tensions underlying the debate and it is unclear whether these will be adequately resolved. The main focus of existing legislation has been the designation of structures or areas deemed to have special interest. This has led to a dichotomy between the protected “monument” and the unprotected “ordinary” environment. Developments in

such as historic landscape character appraisal are beginning to provide an alternative approach that recognizes the historic element in the whole environment. They may have a particularly important role in evaluating the impact of major development and regeneration schemes on local character. Methods of local landscape appraisal such as village design statements and parish landscape statements provide another possible means of implementing an area-based approach at the community level. These are being implemented as supplementary planning guidance within the spatial planning system but have not yet been developed within the conservation legislation. A further issue is that of heritage values and how they are incorporated into the conservation legislation; in the past the dominant values have been those of the academic disciplines such as architectural history and archaeology and these have been centrally determined. These values seem likely to remain the cornerstone of any new legislation. What is less clear is how the growing recognition that a range of heritage values are also generated within specific communities can or should be incorporated into the heritage legislation. On one hand they could be integrated into a decision to designate; this would enable a high degree of participation in the heritage planning system but would result in a loss of a single system of criteria applied across the country. On the other hand they could be incorporated into an additional system; this would ensure a national system based on well-defined and transparent criteria but would probably downgrade any locally established heritage values to a secondary consideration. Again the participatory methods being used to develop supplementary planning guidance are a possible model for incorporating local heritage values into the conservation planning system. Another likely change in conservation legislation is a shift away from statutory control towards a greater reliance on management agreements between landowners and statutory authorities, particularly for large estates. However, management agreements are only likely to apply to certain types of buildings and sites and controls based on application for consent will remain a key element of the legislative framework. The UK has gone through a long period of relative stability, consolidation and slow incremental development in its legal framework for the conservation of the historic built environment. It seems likely that this period may be coming to an end and that more turbulent times may be ahead. How radical future changes may be is still unclear and much will depend on the forthcoming white paper and the ensuing debate. However, it is clear that thinking in conservation planning and management has developed considerably since the Planning (Listed Buildings and Conservation Areas) Act of 1990 and that future legislation may require changes in outlook and new skills on the part of those involved with the historic built environment. References Avrami, E., Mason, R. and de la Torre, M. (Eds) (2000), Values and Heritage Conservation, Vol. 18, The Getty Conservation Institute, Los Angeles, CA, available at www.getty.edu/ conservation/publications/pdf_publications/valuesrpt.pdf (accessed 18 September 2006). Beacham, P. (2006), “Transforming heritage protection: English Heritage and the Heritage White Paper”, Conservation Bulletin, Vol. 52, Summer, pp. 3-4. Burwardsley (2005), Village Design and Parish Landscape Statement, The Countryside Agency, Sheffield.

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Calladine, T., Saunders, J., Murphy, K., Ashworth, M. and Holborow, W. (2006), “Heritage partnership agreements”, Conservation Bulletin, Vol. 52, pp. 20-7. Clark, J. (2004), “Historic landscape characterisation: a national programme”, Conservation Bulletin, Vol. 47, Winter, pp. 20-2. Clark, J., Darlington, J. and Fairclough, G. (2004), “Using historic landscape characterisation”, English Heritage, London, available at www.english-heritage.org.uk/upload/pdf/a4report. pdf (accessed 23 June 2006). Clark, K. (Ed.) (1999), Conservation Plans in Action, English Heritage, London. Clark, K. (2001), Informed Conservation, English Heritage, London. Common Ground (2006), “Common ground”, available at: www.commonground.org.uk/ (accessed 18 September 2006). Council of Europe (2000), “European Landscape Convention”, Council of Europe, Strasbourg, available at: www.coe.int/t/e/cultural_co-operation/environment/landscape/reference_ texts/convention_unitedkingdom.asp#P175_18722 (accessed 7 July 2006). Council of Europe (2005), “Council of Europe Framework Convention on the Value of Cultural Heritage for Society”, Council of Europe, Strasbourg, available at: http://conventions.coe. int/Treaty/Commun/QueVoulezVous.asp?NT ¼ 199&CM ¼ 8&CL ¼ ENG . (accessed 23 February 2007). Department for Culture, Media and Sport (2001), The Historic Environment: A Force for Our Future, Department for Culture, Media and Sport, London. Department for Culture, Media and Sport (2002), People and Places: Social Inclusion Policy for the Built and Historic Environment, Department for Culture, Media and Sport, London, available at: www.culture.gov.uk/NR/rdonlyres/F1C13CE1-CD0E-4E7C-A704- E64A64 E98080/0/people_and_places.pdf (accessed 18 September 2006). Department for Culture, Media and Sport (2003), Protecting the Historic Environment: Making the System Work Better, Department for Culture, Media and Sport, London, available at: www. culture.gov.uk/NR/rdonlyres/9F3B74BE-B01F-431E-BBB6-4FC4372A0E52/0/ReviewHPR. pdf (accessed 23 June 2006). Department for Culture, Media and Sport (2004a), Review of Heritage Protection: The Way Forward, Department for Culture, Media and Sport, London, available at: www.culture.gov. uk/NR/rdonlyres/FCA97675-DA33-4083-9724-49432CF9FE07/0/reviewofheritageprotection. pdf (accessed 23 June 2006). Department for Culture, Media and Sport (2004b), Protecting Our Historic Marine Environment: The Way Forward, Department for Culture, Media and Sport, London, available at: www. culture.gov.uk/NR/rdonlyres/6712D2DE-37A0-443D-A841-6C184FA0299D/0/44470DCMS completeaccess1.pdf (accessed 23 June 2006). Department for Culture, Media and Sport (2005a), “Revisions to principles for selection of listed buildings: Planning Policy Guidance Note 15”, Department for Culture, Media and Sport, London, available at: www.culture.gov.uk/NR/rdonlyres/9AC9E052-C45A-4584-910E654984383F3A/0/Listedbuildingsfinal.pdf (accessed 23 June 2006). Department for Culture, Media and Sport (2005b), The Ecclesiastical Exemption: The Way Forward, Department for Culture, Media and Sport, London, available at www.culture. gov.uk/NR/rdonlyres/09671B0A-9F77-471F-927F-7540BC1244EE/0/Ecclesiastical.pdf (accessed 23 June 2006). Department for Culture, Media and Sport (2005c), “Revisions to principles for selection of listed buildings: Planning Policy Guidance Note 15”, Department for Culture, Media and Sport,

London, available at: www.culture.gov.uk/NR/rdonlyres/6712D2DE-37A0-443DA841-6C184FA0299D/0/44470DCMScompleteaccess1.pdf (accessed 23 June 2006). Department for Culture, Media and Sport (2006), Heritage Protection Review, Department for Culture Media and Sport, London, available at: www.culture.gov.uk/historic_ environment/heritage_protection_review/ (accessed 30 June 2006). Department of the Environment (1990), Planning Policy Guidance: Archaeology and Planning (PPG 16), The Stationery Office, London. Department of the Environment, Transport and the Regions and Department of National Heritage (1994), Planning Policy Guidance: Planning and the Historic Environment (PPG 15), The Stationery Office, London. Drury, P. and McPherson, A. (2003), Streamlining Listed Building Consent: Lessons from the Use of Management Agreements, English Heritage, Swindon. English Heritage (2000), “Power of place”, English Heritage, London, available at: www. english-heritage.org.uk/server/show/ConWebDoc.42 (accessed 23 June 2006). English Heritage (2003), Consultation Paper: Protecting the Historic Environment – Making the System Work Better: The English Heritage Response, English Heritage, London, available at: www.english-heritage.org.uk/upload/pdf/EHresponse_hpr.pdf (accessed 23 June 2006). English Heritage (2005), Guidance on the Management of Conservation Areas, English Heritage, London, available at: www.english-heritage.org.uk/upload/pdf/Management_of_ Conservation_Areas_20060320130528.pdf (accessed 23 February 2007). English Heritage (2006), Conservation Principles for the Sustainable Management of the Historic Environment, English Heritage, London, available at: www.english-heritage.org.uk/ upload/pdf/Conservation_Principles_A4%5B1%5D.pdf (accessed 23 June 2006). Fairclough, G. (2001), “Boundless horizons”, Conservation Bulletin, No. 40, English Heritage, London, pp. 23-6, available at: www.english-heritage.org.uk/upload/pdf/boudless_ horizons.pdf (accessed 23 June 2006). Fowler, P. (2000), “Cultural landscapes in Britain”, International Journal of Heritage Studies, Vol. 6 No. 3, pp. 201-12. Grenville, J. and Fairclough, G. (2004), “Characterisation”, Conservation Bulletin, Vol. 47, Winter, pp. 2-3. Historic Environment Review Executive Committee (2006), “Heritage Counts; The State of England’s Historic Environment 2006”, English Heritage, London, available at: www. english-heritage.org.uk/hc2006/upload/pdf/HC_2006_NATIONAL_20061114094800.pdf (accessed 23 February 2007). Hooley, D. (2004), “Local character: village, neighbourhood and green space”, Conservation Bulletin, Vol. 47, Winter, pp. 23-7. Hoskins, W. (1988), The Making of the English Landscape, Guild, London. Lake, J. (2004), “Historic farmsteads: new approaches”, Conservation Bulletin, Vol. 47, Winter, pp. 18-19. Lowenthal, D. (1985), The Past Is a Foreign County, Cambridge University Press, Cambridge. Marquis-Kyle, P. and Walker, M. (2004), The Illustrated Burra Charter, Icomos, Burwood. Mynors, C. (2006), Listed Buildings, Conservation Areas and Monuments, 4th ed., Sweet & Maxwell, London. Office of the Deputy Prime Minister (2004), “Planning Policy Statement 7: Sustainable Development in Rural Areas”, Office of the Deputy Prime Minister, London, available at:

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www.communities.gov.uk/pub/825/PlanningPolicyStatement7SustainableDevelopmentin RuralAreas_id1143825.pdf (accessed 23 February 2007). Office of the Deputy Prime Minister (2005), “Planning Policy Statement 1: Delivering Sustainable Development”, Office of the Deputy Prime Minister, London, available at: www.communities. gov.uk/pub/806/PlanningPolicyStatement1DeliveringSustainableDevelopment_id1143806. pdf (accessed 23 February 2007). Ross, M. (1991), Planning and the Heritage, E. & F.N. Spon, London. Scazzosi, L. (2004), “Reading and assessing the landscape as cultural and historical heritage”, Landscape Research, Vol. 29 No. 3, pp. 335-55. Schofield, J. (2005), “Discordant landscapes: managing modern heritage and Twyford Down, Hampshire (England)”, International Journal of Heritage Studies, Vol. 11 No. 2, pp. 143-59. Semple Kerr, J. (2000), Conservation Plan, 5th ed., The National Trust of Australia, Sydney. Thomas, R. (2004), “Urban characterisation: improving methodologies”, Conservation Bulletin, Vol. 47, Winter, pp. 11-17. Turner, S. (2006), “Historic landscape characterisation: a landscape archaeology for research, management and planning”, Landscape Research, Vol. 31 No. 4, pp. 385-98. Turnpenny, M. (2004), “Cultural heritage, an ill-defined concept? A call for joined-up policy”, International Journal of Heritage Studies, Vol. 10 No. 3, pp. 295-307. Unesco (2005), “Operational guidelines for the implementation of the World Heritage: Annex 3”, Unesco, Paris, available at: whc.unesco.org/archive/opguide05-annex3-en.pdf (accessed 7 July 2006). Unesco (2006), “Cultural landscapes”, Unesco, Paris, available at: http://whc.unesco.org/en/ culturallandscape/ (accessed 7 July 2006). Waterton, E. (2005), “Whose sense of place? Reconciling archaeological perspectives with community values: cultural landscapes in England”, International Journal of Heritage Studies, Vol. 11 No. 4, pp. 309-25. Weaverham (2005), Village Design Statement and Parish Landscape Statement, Vale Royal Borough Council/The Countryside Agency, Winsford. Went, D. (2004), “Strategic development: sustainable communities”, Conservation Bulletin, Vol. 47, Winter, pp. 4-10. Corresponding author John Hudson can be contacted at: [email protected]

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Evolving heritage control and practice: the case of Anglican churches in English parishes John Mansfield

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School of Architecture, Design & the Built Environment, Nottingham Trent University, Nottingham, UK Abstract Purpose – As part of its broader re-evaluation of heritage policy, the UK Government has reviewed the Ecclesiastical Exemption, a long-standing system that removes certain ecclesiastical buildings from secular heritage controls. This paper aims to critically review The Future of the Ecclesiastical Exemption and subsequent The Ecclesiastical Exemption: The Way Forward. Design/methodology/approach – The paper presents a detailed overview of the Ecclesiastical Exemption and the Faculty Jurisdiction literature followed by a critical review of recent government proposals. Findings – The post-consultation evaluation of responses forced a review of the High Level Management Agreement and the introduction of voluntary Heritage Partnership Agreements. But further reviews of the Ecclesiastical Exemption are likely to be implemented in the future. Originality/value – The paper contributes to the broader appreciation of the “shadow” planning system that the Church of England enjoys. Keywords Heritage, Churches, Building conservation, Partnership, United Kingdom Paper type General review

Introduction While it is widely acknowledged that a country’s cultural built heritage provides a high degree of psychological well-being and a sense of continuity for the wider community, the protection of England’s built heritage is a largely contemporary concern and based on culturally determined attitudes (Hobson, 2004). The first legislative control for the protection of the English built heritage was introduced in 1882 and the subsequent controls have been shaped and modified by successive governments in pursuance of particular political agendas. As a general rule, in a free democracy, all persons and institutions should be subject to the same law and usually to the same procedure (Mynors, 1985). Unprecedentedly, under rights conferred to church courts following the Norman conquest and in exclusions secured from secular legislation in the early twentieth century, the Church of England operates a separate planning system for the benefit of its historic buildings. These long-standing rights have been criticised as an unjustified and anomalous anachronism (Last, 2002) that provides the Church of England with unfair advantages compared to those whose historic properties are subject to the various forms of secular protection. Both the Faculty Jurisdiction and the Ecclesiastical Exemption have been the subject of review since the 1945, and while the Exemption has been reconsidered three times since the mid-1980s (Bishop of Chichester, 1984; Hume, 1994; Newman, 1997), its composition has remained unchanged. The latest review, The Future of the

Structural Survey Vol. 25 No. 3/4, 2007 pp. 265-278 q Emerald Group Publishing Limited 0263-080X DOI 10.1108/02630800710772845

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Ecclesiastical Exemption (Department for Culture, Media and Sport, 2004) endorsed the continuance of the Exemption, but controversially proposed the introduction of quinquennial, “high-level management agreements” that would be validated and reviewed by an external body, English Heritage (EH). Before critically considering the Department for Culture, Media and Sport (DCMS) proposals and its subsequent revisions, this paper reviews the Faculty Jurisdiction and the Ecclesiastical Exemption as it relates to the Church of England, although it is recognised that the Exemption could be available to other faiths, denominations or congregational groups providing that appropriate internal systems of control are in place (Newsom and Newsom, 1993). The privileged position of the Church of England The legal and constitutional position of the Church of England is complex and unusual. As the established Church, it is afforded a special legal position within the state and is not simply a voluntary society within the eyes of the law. Prior to the Reformation, the Church had functions that, in contemporary society, would be recognised as those of government, including, for example, the power to legislate and to operate a court system. Despite the wider rejection of the authority of Rome, the post-Reformation Church of England retained many of its pre-Reformation powers. The sources of the Church authority are found in its own canons, ordinances and measures, and in civil legislation, common law and custom. Although the Church’s direct influence on the affairs of state has been diminished over the centuries, the relationship between Church and state can still best be described as one of conflict and accommodation (Last, 2002). In a more secular age, the fact that the Church of England retains some of its ancient privileges and continues to operate its own legal system could be considered to be anomalous and is something of which the public are generally unaware (Andrew, 1994). This is particularly the case with regard to the care of, and works to, its historic buildings that are under the auspices of the Faculty Jurisdiction and the Ecclesiastical Exemption. Furthermore, there are separate systems for the care and protection of churches and cathedrals. The development of secular planning controls on the cultural built heritage Genuine concern for the protection of the nation’s cultural built heritage grew throughout the nineteenth century almost as an outraged reaction to the numerous destructive restoration schemes that sought to “update” medieval cathedrals[1]. During the 1840s debate centred on the distinctions between “conservation” and “preservation” and polarized contributors as either restorers or anti-restorationists. While the debate did not attempt to advance the theoretical arguments of conservation, it positively contributed toward classifying the principles of conservation that ultimately became embedded in the philosophy that informed statutory protection and practice. An enduring consequence of debate was the establishment of a number of amenity groups such as the Society for the Protection of Ancient Buildings (SPAB) in 1877. The SPAB was a landmark in the popularising of concern for conservation and historic buildings and while its vision was largely based on William Morris’s philosophies of architectural aesthetics (Larkham, 1996), it played an important role in uniting the forces against conjectural restoration and in promoting maintenance and conservation treatment (Jokilehto, 1999). The importance of the amenity groups cannot be understated, not only because they have been an integral part of the public

participation surrounding planning applications, but also as they have become part of a small number of expert bodies that have been regularly consulted by central government (Larkham, 1996) with regard to changes in conservation policy. Unusually, Britain is the only country that operates a separate system for the protection of ancient monuments and listed buildings (Jokilehto, 1999), although the latest reforms are moving toward an integrated register. The first specific legislation, the Ancient Monuments Protection Act 1882, offered protection to ruins and monuments such as tumuli, dolmens and stone circles. The Act importantly introduced the practice of creating a comprehensive record of monuments receiving protection, and this “scheduling” approach has been subsequently adopted for the protection for buildings of particular historic, aesthetic or group value. In other ways, the 1882 Act was largely passive as there were few monuments qualifying for protection and maintenance at public expense, but more importantly, because there was no compulsion for the owners of monuments to maintain them (Larkham, 1996). The acknowledged limitations within the Act ensured that its scope would be widened beyond the protection of ancient monuments. During the preparation of the Ancient Monuments (Consolidation and Amendment) Act 1913 it was anticipated that churches and cathedrals would be brought within the statutory protection measures. This would have removed the Church’s control for the care and protection of its historic buildings, despite its historic obligations and responsibilities. Following an intervention from Randall Davidson, the Archbishop of Canterbury, the Church was able to secure a concession from inclusion for churches and cathedrals, although the concession was subject to two conditions: (1) that the Faculty Jurisdiction would be subjected to review; and (2) that the Church agreed not to seek financial assistance for the cost of repair and maintenance of its buildings (Mynors, 1999). The agreed concession – the Ecclesiastical Exemption – was, at first, merely an exemption from the scheduling of ancient monuments, but was extended later to exclude compliance with listed building consent, a series of controls that deal with buildings in use, and from conservation area controls. However, the Exemption was not the exclusive preserve of the Church of England and remains available to all denominations that have demonstrable and formalised methods for the control of works to ecclesiastical buildings. The post-1945 planning system has evolved rapidly and the provisions for the preservation of buildings of special architectural or historical interest have been strengthened considerably (Moore, 1995). While the contemporary protection regime is founded on primary legislation[2], its full detail is found in subordinate regulation[3], informal guidance detailed in Planning Policy Guidance Notes[4] and Ministerial Circulars[5] together with substantial advice of a technical nature proffered by statutory consultees such as English Heritage, for example New Works on Historic Churches: The Role of English Heritage (English Heritage, 1994). Sanctions for contravention of the planning controls is via the court system where a substantial body of case law has evolved considering many and often disparate aspects of the protection systems. Prior to the enactment of the Ancient Monuments (Consolidation and Amendment) Act 1913, the Church of England secured exemption from listing. It was axiomatic that

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that the exemption from secular control should preclude recourse to public funds and grant aid (Last, 2002). This was a particular strength of the Exemption and placed its other benefits beyond serious external criticism on financial grounds. The system for protecting the cultural built heritage evolved further in the post-1945 period. The Historic Buildings and Ancient Monuments Act 1953 widened the scope of government financial support to include historic buildings and churches were included in the definition. This led the Church of England to believe that grants for repair would be available for churches. However, government policy was not to make grants to churches at that time. During the 1960s and early 1970s, the combined effect of escalating costs of structural repairs to parish churches and the imposition of VAT on such work led to specific measures enabling state aid to be provided for ecclesiastical buildings. The broader and underlying intention was that the grant of state aid for repair would signal the automatic end for the Ecclesiastical Exemption and the need for greater accountability from those in receipt of public funds. However, that was not the effect of the Agreement on State Aid for Churches in Use 1976. Under this scheme, grant aid was made available to “outstanding” churches on the condition that proposals were submitted to the Department of the Environment for approval prior to commencement. An unintended consequence was the inequalities in the distribution of grants given the number of churches and other buildings held by the Church of England that were eligible for grant aid (Last, 2002). There are 16,500 parish churches in England, 80 per cent (13,000) of which are listed under the provisions of the various Town and Country Planning Acts. Despite the listing status, churches are exempt from all secular controls that include listed building control, building preservation notices, various restrictions on works of demolition, alterations or extensions, compulsory acquisition for buildings in need of repair, urgent preservation works undertaken by a local authority, English Heritage or the Secretary of State, or the control of demolition of buildings in a conservation area under various Sections of the Planning (Listed Buildings and Conservation Areas) Act 1990, specifically sections 60 and 75. Further reforms were made through The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994. The Order removed the Exemption from all church buildings in use except from the six stated denominations which had internal systems for approving alterations to listed churches in conservation areas. All other religious denominations and faith groups became subject to the secular controls administered by local planning authorities, an important issue given the proposals within the 2004 Review. The Faculty Jurisdiction and the Ecclesiastical Exemption: a critical assessment While England’s planning system contains some of the most comprehensive and restrictive controls in relation to the conservation of the cultural built heritage, it is in its infancy compared with the care and protection that has been exercised by the Church of England via the ecclesiastical court system since 1072. For administrative purposes, the Church of England is divided into 42 dioceses, each with a Consistory Court presided over by a Chancellor, who is a secularly qualified judge, except in the diocese of Canterbury which has a Court of Commissary and a Commissary General. Historically, the Consistory Courts have dealt with a range of ecclesiastical and secular issues and while their authority and powers have been significantly reduced over time,

one of the retained functions relates to the specialised planning controls over ecclesiastical buildings within the jurisdiction of the diocesan bishop (Harte, 1985) although, surprisingly, the Consistory Courts’ jurisdiction does not extend to cathedrals, which are subject to separate procedures provided in various Measures and Rules[6]. The Faculty Jurisdiction is part of the general responsibility that a bishop has for the provision and care of places of worship in his diocese (Bishop of Chichester, 1984). The Faculty procedure appears to fulfil two basic purposes: (1) to provide some measure of order and responsibility within the Church; and (2) secondly, to provide an external form of control (Mynors, 1985). If material alterations are proposed to any building that is subject to the Faculty Jurisdiction, a formal licence – a Faculty – sanctioning the work is required. Faculties are awarded through the Chancellor at the appropriate diocesan consistory court. It has long been recognised that in all religious traditions various artefacts and forms of iconography such as sculpture, carving, painted decoration, wall paintings and furniture may also have great cultural value in themselves and that such importance cannot be separated from the fabric without loss (Council of Europe, 2000). Indeed the absence of specific ornaments and fittings will deny the proper performance of divine service and the administration of the sacraments (Bishop of Chichester, 1984). Thus Faculties also need to be secured for alterations to a church’s internal configuration, referred to as re-ordering, or its setting. The Faculty Jurisdiction has been exercised with different emphasis and different vigour at different periods of history (Newsom and Newsom, 1993). In most circumstances, the Faculty Jurisdiction seeks to balance the opposing interests of the petitioners who are proposing some form of change with those whose focus may be more protectionist in nature, including parishioners, various heritage organisations and local planning authorities. More practically, changing patterns of worship may dictate the removal or relocation of fittings, fixtures and ornaments within a Church. Such internal re-ordering must be effected without compromising the integrity of the historically important building (Mynors, 1999) or disrupting its purpose of being a place of worship and mission. Medieval canon law contained rules about furnishings and post-Reformation canon law has continued to specify certain objects which must be provided in churches (Bishop of Chichester, 1984). For example, in the Canons Ecclesiastical of the Church of England, (1603, as amended) Canon F – Things Appertaining to Churches – stipulates that, inter alia, a holy table, a font, pews and a bell must be provided within a church. But it is not only the re-ordering of the interior that requires a Faculty, as one is also needed for the introduction of ornaments into a church (Mynors, 1985). However, the guiding principle when addressing the re-ordering of the interior of a church is that any change should be reversible (Hill, 2001). The second major benefit that the Church enjoys is the exemption from the majority of secular planning controls. The Ecclesiastical Exemption was secured in 1913 and its substance is two-fold. Firstly, churches and cathedrals have been excluded from the definition of “monument” since the 1913 Act and are thus not scheduled within the Ancient Monuments and Archaeological Areas Act 1979, and secondly, the Exemption provides that “ecclesiastical buildings which are for the time being used for ecclesiastical purposes” are not subject to the wide range of secular controls.

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While the extent of the Exemption may seem to be wide, there are some interesting anomalies. For example, the word “ecclesiastical” is not defined in either the 1979 or 1990 Acts, although the most authoritative discussion as to its scope is reported in Attorney General v. Howard URC Church Trustees [1976]. The Ecclesiastical Exemption (Listed Buildings and Conservation Areas) Order 1994 imposes some substantive limits on the Exemption (Duxbury, 1999) by restricting it to: . certain types of church buildings; . objects and structures within or fixed to the exterior of a church building; and . objects and structures within the curtilage of the church grounds, although it excludes structures or objects listed in their own right (Duxbury, 1999). Furthermore, buildings used wholly or mainly for the housing of ministers (such as parsonages, rectories or vicarages) are specifically excluded from the Exemption and thus may be subject to secular listed building and conservation area controls. In recognition of the special issues surrounding the care and presentation of cathedral churches, there are separate arrangements in the Care of Cathedrals Rules 1990, Care of Cathedrals Measure 1990, Care of Cathedrals (Supplementary Provisions) Measure 1994 and the Cathedrals Measure 1999. There are particular strengths in the Faculty system. For example, it is run on judicial lines by lawyers of considerable experience, unlike the local planning system, which is based on recommendations by planning professionals but decided by elected councillors whose decisions may be pragmatic, especially if in pursuance of a particular political agenda. In both systems, many of the decisions are necessarily based on value judgments of aesthetic and similar issues. To assist the legally qualified Chancellor, specialist advice is sought from relevant architectural and archaeological experts, the Diocesan Advisory Committees (DAC) and the Central Council for the Care of Churches, a central advisory body established in 1922 to support the work of Diocesan Advisory Committees and to foster high standards in the conservation of historic churches and their fittings (Last and Shelbourn, 2001). However, the Chancellor is guided, and not bound, by the advice of the DAC (MacKechnie-Jarvis, 2002). Furthermore, it is an established practice for consultation with the congregation, although there is no specific requirement to engage with the general public beyond the obligation of placing a notice in local papers (Campaign for Planning Sanity, 2004). In arriving at a decision, the Chancellor must also consider if the petitioner has had due regard to the role of the church as a local centre of worship and mission (Last and Shelbourn, 2001). A condition that is shared with the secular control is that the burden of proof falls on the petitioner and they are required to undertake a full exploration of arguments for and against the architectural change proposals. Although originating in 1881[7] it was only since the publication of Planning Policy Guidance Note 15 in 1994 that the clear onus is placed upon the applicant (Went, 1995). The Church provides details of “best practice” in the Care of Churches and Ecclesiastical Jurisdiction Measure Code of Practice (1993). More specifically, Rule 1 of the Faculty Jurisdiction Rules requires an application for a Faculty to be supported by: . a Statement of Needs, a document that sets out the reasons why it is considered that the needs of the parish cannot be met without making changes and the

.

reasons why changes are regarded as necessary to assist the church in its worship and mission; and a Statement of Significance, a document that summarises the historical development of the church and identifies the important features that make a major contributions to the character of the church.

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271 Reviews of the Ecclesiastical Exemption and the Faculty Jurisdiction Both the Exemption and Jurisdiction have attracted a range of criticism since their introduction. For example, it has been argued that the Exemption is exclusive in that: . it is denied to denominations, congregations and faith groups that do not have appropriate control systems (Mynors, 1999), a point reinforced by the 1994 Order; . there is a distinct bias toward the Church of England in that the churches considered to be of historical interest belonged to the Church of England (Mynors, 1999); . the system lacks transparency; and . the decisions made under the Faculty Jurisdiction are not accountable to the broader community in the way that the secular planning system is. These are constant themes in every review. Government policy toward the conservation of the cultural built environment has evolved significantly over the last three decades. From the late 1970s, broader urban policy has been characterised by systematic deregulation that was intended to lift the burden of government bureaucracy from business and to ease the financial burden to central government of what had become accepted as government responsibilities (Larkham and Barrett, 1998). In this time period the Exemption and Jurisdiction have been reconsidered on three separate occasions, although the Exemption’s composition has remained unchanged. The most recent review of the Ecclesiastical Exemption was a component part of the broader review of heritage protection that was introduced in 2002. While some of the specifics for the wider heritage protection review are set out in a number of documents, including for example The Historic Environment: A Force for Our Future (Department for Culture, Media and Sport, 2002) and Protecting Our Historic Environment: Making the System Work Better (Department for Culture, Media and Sport, 2003), its chief purpose was to align with the government’s agenda that seeks to modernize public services and effect cost savings, as detailed in documents such as the Comprehensive Spending Review (HM Treasury, 1998) and Better Government Services: Executive Agencies in the 21st Century (Prime Minister’s Office of Public Services Reform, 2002). The heritage review’s larger ambition was to provide a positive approach to managing the historic environment which will be transparent, inclusive, effective and sustainable, and central to social, environmental and economic agendas at local and national levels (Department for Culture, Media and Sport, 2004). The government feels that in order to achieve these aims, it was necessary to review the legislative framework that protects, but enables appropriate change in, the whole historic environment. An important aspect of this process was the consideration of the Ecclesiastical Exemption.

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While the DCMS recognised that the Church of England’s Faculty Jurisdiction system has operated with rigour through its Diocesan Advisory Committee system, it believed there are continuing weaknesses in the control systems in terms of external accountability and transparency in the process. While largely silent on the scope and extent of the deficiencies in the Faculty Jurisdiction and Ecclesiastical Exemption systems, the Review’s proposals aim to “iron out” differing levels of complexity between the systems of internal control currently operated, thus making the principles of operation simpler and more unified, consistent and transparent (Department for Culture, Media and Sport, 2004). The most controversial aspect of the Review was the recommendation that the Church would be required to enter into high-level management agreements (HLMA) with the government-nominated validating body, English Heritage. Under the proposals the Church of England would be operationally accountable to English Heritage, and not to local planning authorities that have responsibilities for the buildings of those denomination or faith groups not explicitly provided for in the 1994 Order. Ironically, DCMS recognised that the Church of England’s Faculty Jurisdiction system provides a level of protection which is demonstrably far greater than anything offered within the secular system of controls and is likely to remain so due, in large part, to the detailed recognition of the doctrinal importance of fixtures and fittings, positioning and movement of artefacts. It is proposed that once a HLMA is agreed, it would be operational for five years and would then be the subject of a thorough review. It was argued that this form of management agreement would offer a greater flexibility, although it seems that it exclusively favours the government position in that the HLMA system could be subject to potential comprehensive redrafting or abolition after an initial five-year period. Critique of the proposals The DCMS Consultation paper (Department for Culture, Media and Sport, 2004) was published in February 2004 and afforded respondents three months to consider and prepare responses. Given the potential impact of the proposals, this was a short consultation period, yet was in line with normal government timetables. At the date of closure of submission, the DCMS had received 150 responses from organisations and individuals. Maybe understandably some respondents specifically requested confidentiality, but this may restrict the DCMS taking full account of such comments when preparing the Response and Consideration document, which was initially scheduled to be issued by Easter 2005. While there are a number of potential areas for commentary, the substantive criticism of the Proposals can be concentrated under two heads – the high-level management agreements; and the role of English Heritage and its capacity to act as the validating body. The Consultation’s proposals for adopting HLMA is based on the experience gained in the 15 years following the Burra Charter (ICOMOS, 1979), the international conference that introduced Conservation Plans, which have become recognised as a first stage of a management plan (Clark, 1999). Conservation plans are used to analyse the special character of a building and its setting so that its significance can be understood and identified (Richards and Urquhart, 2003), allowing the fuller management of the site to be planned accordingly together with the development of appropriate policies to achieve the management objectives. The Burra Conservation

Plan became the template for the Management Guidelines for World Heritage Sites (Feilden and Jokilehto, 1998), an exemplar document that has informed English Heritage’s stewardship of its unique portfolio of internationally significant sites[8]. Furthermore a detailed Conservation Plan is a key requirement for schemes applying for Heritage Lottery Fund grant aid. Over a very short period of time, Conservation Plans seem to have been placed at the centre of the heritage protection mechanism. While it is argued that Conservation Plans are implicit in practically all legislation protection of the immoveable cultural heritage (Drury, 1999), there is no evidence to suggest that just because they have become key components of various government agencies’ approaches to managing the cultural built heritage either directly or indirectly through the grant aid system, they are necessarily appropriate in all contexts. A particular problem with the publication of detailed assessment briefs (Heritage Lottery Fund, 2004) is that templates can lead to a tick-box approach that can seriously reduce creative solutions, a barrier that is encountered elsewhere, for example in the range of design guidance promoted by the Commission for Architecture and the Built Environment (Mansfield, 2004). Despite support for Management Agreements by the DCMS and EH, they are, as yet, not proven in the secular system (Victorian Society, 2004) and despite the reporting of the outcome of recent trials (English Heritage, 2003), it may be too early to fully assess their efficacy. Given the very different and complex arrangements that surround the range of ecclesiastical buildings that are subject to the Exemption, it is difficult to see how the existing Heritage Lottery Fund’s Model Form (Heritage Lottery Fund, 2004) could be used without significant alterations. Such alterations would take the Agreement’s structure away from those that currently exist. The lack of real detail regarding the proposed Agreements was a serious flaw in the Consultation and one that was likely to undermine support for the proposal. A more fundamental criticism concerned the legal difficulty with the proposed HLMA (Church Heritage Forum, 2004). It seems that a separate formal contractual arrangement with EH would create a legal impossibility as a legal and judicial system established by Measures conferred by Parliament that has the same effect as Statute cannot be subjugated to a contract that would “monitor” and “validate” its functioning (Church Heritage Forum, 2004). Furthermore, the transfer of the full range of statutory powers to English Heritage, removing the possibility of appeal to the Secretary of State would be an unprecedented constitutional innovation (Joint Committee of National Amenity Societies, 2004). The second main area for concern was the scope and extent of the role of the validating body. It is perhaps not unusual that English Heritage had been selected as the validating body given its founding responsibilities of securing the preservation of ancient monuments and historic buildings for the benefit of future generations and to encourage its popular understanding and enjoyment (Department for Culture, Media and Sport, 2002b). Yet despite the continued Departmental support, English Heritage’s operational focus has been disadvantaged by conflicting and changing political agendas. As a consequence, English Heritage has been forced to recast itself as a regeneration agency based on its firm reputation and experience working with local authorities developers. Furthermore, it oversees various initiatives including the EH Heritage Economic Regeneration Scheme, which acts as an important catalyst for community-led renewal and as a spur to wider private and public investment

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(Department for Culture, Media and Sport, 2001). As an Executive Non-Departmental Public Body, EH is subjected to quinquennial reviews (QQR) that monitor performance against targets that reflect the government’s modernising agenda with emphasis on greater external customer and stakeholder focus and financial efficiency. In the first QQR in 2002, the DCMS considered that EH’s principal roles – lead body, regulator, enabler and delivery body – had become blurred and that it lacked strategic vision. The review proposed that EH devolve autonomy and responsibilities for conservation to a more local level in favour of a more strategic, regional role (Hobson, 2004), and to assign the lead role for the allocation of grants to the Heritage Lottery Fund, which retained EH as an advisor (Hobson, 2004). It seems that EH has needed to seek alternative avenues that harness the skill set and the proposals in the review of the Ecclesiastical Exemption may be a way of compensating for the effective erosion of authority and influence over the last few years. However it does seem to be a significant issue as in April 2005 EH assumed full responsibility for the listing of buildings in England (English Heritage, 2005), a change that is intended to add clarity and transparency to the protection of the built environment. A difficulty with proposing English Heritage as the validating body is the very apparent conflict of interest in its different roles as being an advisory, grant awarding and monitoring body (Victorian Society, 2004). This could manifest itself in a number of ways, including when considering a HLMA application, how would EH avoid the contradiction of being an advocate for conservation while retaining the powers of sanction (Church Heritage Forum, 2004) for schemes submitted under a HLMA? A further obstacle would be the equitable consideration of HLMA by EH Inspectors who themselves may advise DACs (Victorian Society, 2004). The proposed QQR must be “active” involving direct EH inspection, as opposed to “passive” that relies upon stewardship Reports, as if the Reports are not tested by a third party they could become self-serving (Joint Committee of National Amenity Societies, 2004). The Ecclesiastical Exemption is complex and often difficult to understand (Church Heritage Forum, 2004). The Diocesan Advisory Committees have developed an intimate knowledge of the physical and metaphysical significance of the fabric and iconography within its churches. Such detailed knowledge and deep levels of appreciation is unlikely to exist in a secular control body. As such it may be more appropriate to establish a partnership between and EH and the Church of England and to move toward a more mutual understanding (Church Heritage Forum, 2004) of their relative positions. More fundamentally, does English Heritage have the appropriate and requisite level of skills in place, the volume of staff to deal with a huge influx of responsibilities and if not, where would they propose to recruit this staff and over what time period? The Ecclesiastical Exemption: The Way Forward The DCMS published the results of its consultation, The Ecclesiastical Exemption: The Way Forward, in July 2005 (Department for Culture, Media and Sport, 2005). While it acknowledged the contributions received from consultees, it represented a climb-down from the HLMA and the proposed use of voluntary Heritage Partnership Agreements (HPA). In essence, this undermined the efforts to disrupt the long-established procedures for the care and maintenance of Anglican churches. Being voluntary, it seems doubtful that diocese would enter into such arrangements that would place

further restrictions on their ability to deal with the estate that has been cared for over centuries. An interesting characteristic is that the HPA are rather broader in their capture than those proposed under HLMA, such as cathedral precincts, where DCMS will encourage Chapters to develop individual HPA, but probably too even less effect.

Conclusions Since their introductions the Ecclesiastical Exemption and the Faculty Jurisdiction have been under attack partly as a matter of principle from those who do not believe that churches should have their own system of law and, maybe more significantly, from central government as part of an unconvincing line of reforming zeal. The Faculty Jurisdiction still provides a model for regulating the conservation of buildings of historic and aesthetic interest and the model’s contents can be compared favourably with listed building control (Harte, 1988). The Faculty Jurisdiction provides a laboratory for developing improved arrangements for conservation taking into account the public and individual interests involved whilst safeguarding the special needs for flexibility in the use of church buildings of a living and developing community of believers (Harte, 1988). Given the scale and financial size of the responsibility for the care of ecclesiastical buildings, it does not seem unreasonable to occasionally review the performance and the operational systems that support it. The Church of England has been in the vanguard of reviewing the fabric condition of its heritage having formalised quinquennial inspections in 1955. This demonstrates that the Church has used its powers of legislation to good effect for the heritage and has made an immense difference to the survival in good order of parish churches (Council of Europe, 2000). However as the cost of structural repairs to parish churches rose and such work became subject to VAT, Diocesan Advisory Committees have sought state aid to part fund repair works. A corollary to the funding is an increase of secular accountability, an issue recognised in the Faculty Jurisdiction Rules 2000, which require DAC that have previously received grant aid to consult with EH prior to seeking a Faculty, subject to stated exceptions in Faculty Jurisdiction Rules. It remains entirely logical that the Church should be the sole arbiter of petitions submitted for its own historic buildings given its more sophisticated internal system of control (Mynors, 1999) and the depth of knowledge and appreciation of the doctrinal significance of all aspects of the setting. Yet in order to consider whether the formal exemption from listed building control can be continued to be justified, it is necessary to examine the nature of the alternative control to see whether it is at least effective (Mynors, 1985). The dominant view in the literature is that the justification for the Exemption arose from the commitment given by the Anglican Church that it would control works to churches through its quasi-statutory Faculty Jurisdiction system and the Pastoral Measures approved by the General Synod and Parliament. However and importantly, it could be that the granting of the Exemption was an expedient political compromise due to the considerable difficulties that would have been involved in attempting to resolve the inadequacies of the Faculty Jurisdiction system alongside establishing alternative and appropriate machinery for the care of ancient churches (Last, 2002). Despite fairly regular attempts to undermine this, the situation remains.

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Notes 1. For example, James Wyatt’s work at Durham, Hereford, Lichfield and Salisbury; Lord Grimthorpe’s efforts at St Albans and Sir George Gilbert Scott’s plans for Tewkesbury Abbey. 2. Such as Ancient Monuments & Archaeological Areas Act 1979; Town and Country Planning Act 1990; Planning (Listed Buildings and Conservation Areas) Act 1990. 3. Including Ancient Monuments (Class Consents) Order 1994 SI 1994 No. 1381; Planning (Listed Buildings and Conservation Areas) Regulations 1990 SI 1990 No. 1519. 4. For example Planning Policy Guidance 15: Planning and the Historic Environment, 1994; Planning Policy Guidance 16: Archaeology and Planning 1990. 5. Such as DETR Circular 14/97 Planning and the Historic Environment – Notifications and Directions by the Secretary of State. 6. Care of Cathedrals Measure 1990, Care of Cathedrals Rules 1990, Care of Cathedrals (Supplementary Provisions) Measure 1994, Cathedrals Measure 1999 and Care of Cathedrals (Amendment) Measure 2005. 7. Peek v. Trower 7 PD 21, and subsequently used in Re St Mary’s Banbury (1987) Fam 136, and Re All Saints Melbourn (1990) 1 WLR 833. 8. Including Stonehenge, Dover Castle, Lindisfarne Priory, Hadrian’s Wall and Iron Bridge.

References Andrew, D. (1994), “The Ecclesiastical Exemption”, Context, p. 44. Bishop of Chichester (1984), The Continuing Care of Churches and Cathedrals: Report of the Faculty Jurisdiction Commission (The Chichester Report), CIO Publishing, London. Campaign for Planning Sanity (2004), “Church Planning Law”, available at: www. planningsanity.co.uk/forums/masts/html/church.php Church Heritage Forum (2004), Response to The Future of the Ecclesiastical Exemption Consultation Paper, Church Heritage Forum, London. Clark, K. (1999), Conservation Plans in Action: Proceedings of the Oxford Conference, English Heritage, London. Council of Europe (2000), Forward Planning: The Function of Cultural Heritage in a Changing Europe, Council of Europe, Strasbourg. Department for Culture, Media and Sport (2002a), The Historic Environment: A Force for Our Future, Department for Culture, Media and Sport, London. Department for Culture, Media and Sport (2002b), English Heritage Quinquennial Review: Stage One Report, Department for Culture, Media and Sport, London. Department for Culture, Media and Sport (2003), Protecting Our Historic Environment: Making the System Work Better, Department for Culture, Media and Sport, London. Department for Culture, Media and Sport (2004), The Future of the Ecclesiastical Exemption, Department for Culture, Media and Sport, London. Department for Culture, Media and Sport (2005), The Ecclesiastical Exemption: The Way Forward, Department for Culture, Media and Sport, London. Drury, P. (1999), “Benefits of assessment – conservation plans and statutory bodies”, in Clark, K. (Ed.), Conservation Plans in Action: Proceedings of the Oxford Conference, English Heritage, London.

Duxbury, R. (1999), Telling and Duxbury’s Planning Law and Procedure, 11th ed., Butterworths, London. English Heritage (1994), New Works on Historic Churches: The Role of English Heritage, English Heritage, London. English Heritage (2003), Streamlining Listed Building Consent – Lessons from the Use of Management Agreements, English Heritage/Office of the Deputy Prime Minister, London. English Heritage (2005), Listing is Changing, English Heritage, London. Feilden, B. and Jokilehto, J. (1998), Management Guidelines for World Cultural Heritage Sites, ICCROM, Rome. Harte, J.D.C. (1985), “Church v state in listed building control I and II”, Journal of Environmental Planning and Law, September/October, pp. 611-21, 690-7. Harte, J.D.C. (1988), “Doctrine, conservation and aesthetic judgment in the Court of Ecclesiastical Causes reserved”, Ecclesiastical Law Journal, Vol. 1 No. 2, pp. 22-32. Heritage Lottery Fund (2004), Repair Grants for Places of Worship in England 2005 to 2007, Heritage Lottery Fund, London. Hill, M. (2001), Ecclesiastical Law, 2nd ed., Sweet & Maxwell, London. HM Treasury (1998), The Comprehensive Spending Review, HM Treasury, London. Hobson, E. (2004), Conservation and Planning: Changing Values in Policy and Practice, Spon Press, London. Hume, E. (1994), Heritage and Renewal: The Report of the Archbishops’ Commission on Cathedrals, Church House Publishing, London. ICOMOS (1979), Charter for the Conservation of Places of Cultural Significance – The Burra Charter, ICOMOS, Burwood (as amended). Joint Committee of National Amenity Societies (2004), Response to The Future of the Ecclesiastical Exemption Consultation Paper, Joint Committee of National Amenity Societies, London. Jokilehto, J. (1999), A History of Architectural Conservation, Elsevier Butterworth-Heinemann, Oxford. Larkham, P.J. (1996), Conservation and the City, Routledge, London. Larkham, P.J. and Barrett, H. (1998), “Conservation of the built environment under the Conservatives”, in Allmendinger, P. and Thomas, H. (Eds), Urban Planning and the British New Right, Routledge, London. Last, K.V. (2002), “The privileged position of the Church of England in the control of works to historic buildings: the provenance of the Ecclesiastical Exemption from listed building control”, Common Law World Review, Vol. 31 No. 3, pp. 205-32. Last, K.V. and Shelbourn, C. (2001), “Caring for places of worship? An analysis of controls over listed buildings in England and Scotland”, Art, Antiquity and Law, Vol. 6 No. 2, pp. 111-37. MacKechnie-Jarvis, J. (2002), “Hoops and hurdles: a guide to the consent process”, Church Extension and Adaptation, 2nd. ed, Church House Publications, London. Mansfield, J.R. (2004), “Developments in conservation policy: the evolving role of the Commission for Architecture and the Built Environment”, Journal of Architectural Conservation, Vol. 10 No. 4, pp. 50-65. Moore, V. (1995), A Practical Approach to Planning Law, 5th ed., Blackstone Press, London. Mynors, C. (1985), “Render unto Caesar . . . the Ecclesiastical Exemption from Listed Building Control”, Journal of Planning and Environmental Law, pp. 59-61.

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Mynors, C. (1999), Listed Buildings, Conservation Areas and Monuments, Sweet & Maxwell, London. Newman, J. (1997), A Review of the Ecclesiastical Exemption from Listed Building Consent, Department for Culture, Media and Sport, London. Newsom, G.H. and Newsom, G.L. (1993), Faculty Jurisdiction of the Church of England: The Care of Churches and Churchyards, 2nd ed., Sweet & Maxwell, London. Prime Minister’s Office of Public Services Reform (2002), Better Government Services: Executive Agencies in the 21st Century, HM Treasury, London. Richards, R. and Urquhart, M. (2003), Conservation Planning, Planning Aid for London Publications, London. Victorian Society (2004), Response to The Future of the Ecclesiastical Exemption Consultation Paper, Victorian Society, London. Went, S. (1995), “Church and state”, Context. Corresponding author John Mansfield can be contacted at: [email protected]

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Improving curriculum theory and design for teaching law to non-lawyers in built environment education

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Robert J. Morris Department of Building and Real Estate, Hong Kong Polytechnic University, Kowloon, Hong Kong Abstract Purpose – The paper sets out to contribute to the ongoing debate on the deficiencies in the teaching of law to non-law students, specifically, addressing the question of whether the pedagogical approach should differ from that traditionally used for the teaching of law to law students and, if so, to what degree. Design/methodology/approach – The existing literature is reviewed and the author draws on his practical experience of teaching law to non-law university students in building and real estate. Reference is also made to experiments in curriculum design and pedagogy at the Hong Kong Polytechnic University, which included a survey of student and practitioner opinions. Findings – Although some progress is noted, serious defects are identified in both curriculum design and its underlying methodology in the areas studied. Demands in the twenty-first century for the teaching of law in these contexts are shown to have outstripped the relevant pedagogical theory and practice. Nevertheless, possible ways to improve the situation are identified from the literature, and from recent examples of educational practice. Since professional knowledge is resistant to any substantial restructuring, it is proposed that departments must insist on the implementation of change, which is consistent with available research findings. The paper proposes (inter alia) that greater attention should be paid to preparing non-law students for their legal studies in addition to the present focus on the study of substantive legal topics. Research limitations/implications – Although the article makes reference to some quantitative questionnaire research, it is not presented as an empirical study. As stated in the text, the empirical investigations are used, together with the literature review, to inform the thesis presented by the author, which uses theory to addressing practical issues. Originality/value – The paper fills an identified gap in the theoretical knowledge of the subject and provides some ideas and suggestions for ways forward. Keywords Curriculum development, Education, Law, Teaching methods, Hong Kong Paper type Viewpoint

If you have your why? for life, then you can get along with almost any how? (Friedrich Nietzsche, 2000, p. 6)

1. Introduction 1.1 The need for change The findings from over three decades of published research in teaching law to students on non-law programs (including inter alia building, real estate, business and the military) are not encouraging (Estes et al., 2006; Hutchinson, 2005; Skwarok, 1995). They reveal many deficiencies, inconsistencies, and disagreements – particularly with regard to providing

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the “why” to students (Nietzsche’s paradigm) and to the implementation of research-led education (Freestone and Wood, 2006; Leung et al., 2006; McLernon and Hughes, 2005). The twenty-first century’s demands for the teaching of law in these contexts have clearly now outstripped the development of the relevant theory and practice. As with law teaching in law schools generally (Morris, 2004, 2005), this special corner of legal pedagogy could do better in both what is taught and the ways in which it is taught. This study therefore positions itself as a continuation of the author’s past work in this area (Morris, 2004, 2005) and a foreshadowing of further work and development. Because of the ongoing discontent and lack of consensus on what is to be done, there lies ahead an important job of work to make teaching methods and curricula conform to the best practices indicated in the research. Happily, there are some indications that things are changing for the better, but so far only incrementally so (Boston College Law Library, n.d.; Chan and Wong, 2005; Hargreaves, 2005; Sidwell, 2005, Siedel, 2000). Because of an almost universal “undertow of concern” (Friedman, 2006, p. 301) surrounding issues of modern education generally there is a present need to “test out” the findings of this past research in light of educational needs and trends in the new century (Phillips and Pugh, 2002, pp. 50-3). Because old habits die hard, what is required of the faculty is what Goldsmith (1999, p. 89) calls “curricular courage”. Hopefully, the product will be not only a student who possesses the qualities and characteristics of “educatedness” and “graduateness” but also what has been described as the “preferredness” of particular programs and schools (Higher Education Quality Council, 1995; Mohanan, n.d.; Ross, 2001). 1.2 An experiment in curriculum design and pedagogical methods In response to this background, a two-year multi-approach experiment in both undergraduate and postgraduate law classes at the Hong Kong Polytechnic University (Poly U), Department of Building and Real Estate (BRE), has been undertaken since Fall 2005 to test the findings of the literature, mostly using experimentation in curriculum design and pedagogical methods. A small part of the experiment involved brief questionnaires which were administered to practising professionals as well as to selected law classes accounting for about 400 students per semester. The purpose of each questionnaire was not to produce a final statistical analysis but to adduce a general sense of students’ perceptions, and to generate an ongoing Socratic discussion with respondents in order to identify possible ways forward. A total of 116 questionnaires were returned and as many interviews subsequently took place where the responses were discussed in detail. This figure represents nearly 100 per cent of the students enrolled in the classes the author personally taught. Of this total, 68 questionnaires were returned by undergraduate students, and 48 by postgraduate students. A total of 16 questionnaires were returned from practising professionals in Hong Kong. Both groups expressed the desire for more instruction over more time and for more law subjects to be added to the curriculum. 2. Focus of current research 2.1 Problems, aims and methods The literature supports (and experience confirms) the conclusion that the best approach to teaching law for other disciplines, being as it is both legal education and

not (Christudason, 2006), must be a hybrid of methods and tactics (Bellah et al., 1996, p. 300). Practical classroom experiences and internal teaching review exercises show that the remedies for particular deficiencies can be effectively identified, discussed and then subsequently applied in teaching (Morris, 2005). The objective of the current research was to discover what has been found by the research to date, and to discuss how the findings might be implemented in the new century with particular regard to how the findings of practice in Hong Kong and the findings elsewhere might inform each other. The initial catalyst for this research occurred when the writer encountered a single evaluation written by a former student of his university (not of himself) who had left both the university and his enrolled program for the reason, as he put it, of “the poor quality of teaching”. The question was provocative in leading to a search as to why the teaching may have been “poor”, how it might be improved, and how the student’s comment might fit into a pedagogical context (Ting et al., 2006). The complaint was not altogether uncommon or unlike similar complaints in higher education generally where research and publishing are sometimes perceived as being rewarded more than pedagogical acumen (Bok, 2003, pp. 88-9). Indeed, the first question to be addressed was whether the problem lay in pedagogy at all, or whether the dissatisfaction was inherent within the subject and the situation irrespective of how the teaching was done. Writing within the context of legal pedagogy regarding construction-contract law and building education and research outside the law school, Stipanowich (1998) notes that “scholarly treatment is spotty at best [. . .] The paucity of scholarship is mirrored by a lack of curricular emphasis”, as well as a “scholarly and pedagogical obliviousness” to the study, for example, of construction law and an appreciation of its importance. He states (pp. 496-7; emphasis added): Unless the explanation is a perverse form of intellectual snobbery, it must be a pervading ignorance of the practical significance of and academic challenge presented by the field of construction law – or a reflection of the inherent complexity (real and perceived) of principle and practice in the arena. Although today’s attorneys and industry actors have much greater access to treatments of pertinent legal subjects than their predecessors, much more can be done to enhance the level of scholarly treatment and interdisciplinary discussion of legal rules.

2.2 The traditional model The published research reveals that insofar as the discipline follows the model that has served lawyers so well (the traditional study of black-letter law and case law in the lecture-tutorial paradigm or Socratic Method with a single final essay-examination assessment), it is not serving well the needs of these “other programme” students or equipping them for the functional roles of their respective industries. That system often fails to identify their difficulties, weaknesses, and needs. Indeed, the traditional system may no longer be serving even the law school well (Schwartz, 2001). As Endeshaw (2002, p. 42; emphasis added) concludes regarding his study: [T]he confusion so starkly manifested among the respondents surrounding the applicability to new situations of the legal rules they had learnt suggest[s] that the current [traditional] approach deployed in the School must at least have been a contributory cause.

Change must be made (Chen, 2005). But here is the rub: lawyers must teach the law courses to the non-law students because no one else is qualified. But what pedagogical

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model is there other than that of the law school that produced those lawyer-teachers? How does the faculty unlearn or modify its learning of the very process that made it what it is, and then replace it with something different with which to teach others the same subject outside the law school? As Cownie (1999a, p. 51) points out, there is the “well documented problem that professional knowledge is resistant to any substantial restructuring,” and this includes a downright anti-intellectualism about the pedagogical theory and philosophy of education and curriculum (Cownie, 1999a, pp. 44-5, citing Feinman and Feldman, 1985; Cownie, 1999b; Bok, 2003, pp. 26-7, 180). The balancing of doctrine, content, theory, practice, and emphasis outside the law school will be different from that within the law school, and it will require frequent adjustment (Skwarok, 1995), but such adjustment is always necessary (Webb, 1996). Several things are clear about the modern world and the project of education in that world. Most importantly, the old distinctions and barriers between “trade” school and “academic” school, as well as between training and education, have fallen. So also have the distinctions and barriers between “theoretical” knowledge and “applied” knowledge (Bok, 2003). Cross-disciplinarity, if it means anything, means the disappearance of compartments, the “joining of the tracks”. The old paradigm of the university and its classrooms as a world apart from the “real world”, where one may “retreat” to pursue abstract learning “for its own sake”, has blurred if not disappeared. All of this is part of what Friedman (2006) has aptly termed “flattening”. Stated another way, “If you always do what you always did, you will always get what you always got”. Today’s professionals no longer cede the knowledge and understanding of the law to the private preserve of the lawyers. Nor do they cede the responsibility for their education to others: “Tell me, I will forget; show me, I will remember; let me do it, I will understand”. The subject of “law” has thus become the discipline of “law you can use” – practical law, law in the trenches, applied law – not only for would-be lawyers but also for that vast population of “non-lawyers” in other professions who must nevertheless deal with law. Law is part of both the educational and the professional industry (Godonou, 2003, p. 15). It is no longer one of the “external drivers” for change, but has become internal and endemic to change in the professions themselves. 2.3 A model for non-law students? Nowhere is this more true than in those disciplines and cross-disciplines where law is taught to non-lawyers. For would-be lawyers, of course, there is the very real necessity at the end of the road: that of becoming a lawyer and being competent and responsible in all the demands of practice. But these changes also bear substantial import for non-law-school students. As Bunni (2000, pp. 114-5; quoted in Chan and Wong, 2005, n. 2) notes (emphasis added): Standard forms of international construction contracts produce a second layer of legal principles through their standard forms of contract, which are superimposed on the applicable law of the contract between employer and contractor. It is difficult and unhelpful for anyone to be involved in the resolution of disputes arising from such contracts unless the person is very familiar with, if not an expert in, the areas of these forms and the disputology incorporated in them.

For the students on the non-lawyer track, however, the necessity for them to learn at least a modicum of law may not be so apparent – even if they are already aware that at

sometime in their approaching professional lives they will almost certainly “be involved in the resolution of disputes arising from such contracts”. It may be necessary, therefore, for the curriculum and its exponents to supply a kind of hypothetical necessity – at least at first when the student may be asking, as one student wrote, “Why do I have to study this stuff? Can’t I just hire a solicitor whenever the need arises?”. The difficulty with this situation is that not all students, as Bok (2003, pp. 161, 163, 179) points out, are fully in a position to know what they need. Most students who returned the subject questionnaires and participated in the related discussions in this study focused their strongest views on question 3 (“If I could make any changes to the mandatory programme of law study, the changes would be . . .”). The majority, perhaps counter-intuitively, wanted more detailed illustrations, examples, and case studies (perhaps for the vivid exemplary or story content of case reports, which are more accessible to new learners than “black-letter law”). As every legal practitioner knows, many professionals (and indeed non-professionals) are “out there swimming among the crocodiles” and do not know it – would not recognize the danger if it approached them. Legal problems are not always self-evident, and recognizing them requires specialist training. One may not always know when it is time to call in the solicitor. Resistance to such training does not make the dangers disappear. Such inertia may be partly overcome by using real-life stories that demonstrate the immediacy of actual legal problems within the students’ future professions (Chow and Li, 2005), rather than teaching a great deal of theory or jurisprudence. All is practical. Many respondents found the mandatory study of law to be relevant and for reasons that demonstrated their knowledge of the “real world” they will encounter after graduation. In other words, they saw the study of law as generally useful for reducing future breaches of contract, commission of torts, and resultant lawsuits – and some considered the interplay between contract and tort principles. Question 6 on the professional questionnaire asked a counterfactual question: “Can you recite any specific example of when your legal training has helped you avoid, mitigate, or settle a legal problem or a lawsuit in the practice of your profession?”. It is a “what if” question. Even so, a majority of professionals responded affirmatively, indicating at least a view that their legal training was relevant to advancing the cause of “preventive law”. The respondents had no problem articulating their own need to study the law – all seemed to accept it as important and necessary. Hence, the differences between the two groups. The question of relevance interrogates what Leung et al. (2006) refer to as “deep motive”. The fair, reasonable, and simple motive is this: Every professional decision or choice you ever make, starting now with your academic career, is a potential legal and even litigable issue. So the student must get used to it – must start learning now to embrace and use this reality. How, for example, can one hope to understand the contents of something like Sweet’s (2000) Legal Aspects of Architecture, Engineering, and the Construction Process (to pick just one example) if s/he has no solid grounding in what constitutes the “legal aspects” of those subjects? Both students and practitioners alike need to see that various subjects and disciplines are like islands of the sea, all seemingly standing apart and discreet; but the law is the sea itself, and under the covering water, all the islands are actually connected in one.

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3. The new curriculum design: preparing professional clients 3.1 The needs of non-law students The challenge for curriculum design in this context is to find the balance between a full-blown legal course as taught in the law school, on the one hand, and the watered-down, often erroneous “law lite” of the self-help books and guru courses on the other – in other words, to teach students to “think (enough) like lawyers” (Morris, 2004, 2005) without making them into lawyers, and to ensure a match between the school’s primary mission statements and program offerings (Wang, 2004). The goal is to equip learners with sufficient knowledge and skills to do two things: (1) to work intelligently with their lawyers (in-house or retained) when they enter the world of their chosen non-law professions; and (2) to keep themselves out of legal trouble in the practice of those professions with their colleagues – in other words, to practise preventive law and its counterparts: preventive management, preventive leadership, preventive networking, and so on. Prevention is the quintessential rationale. The first goal is proactive; the second is defensive. Of course they will have legal counsel for the black-letter work. But they need their own substantial legal knowledge in order even to read the daily newspaper and to make business decisions based on “common sense”. They need to know how to use the law library. They need to know how to find legal information on the internet. Hutchinson (2005, p. 4), citing an important article by Byles and Soetendorp (2002), identifies other desiderata: . the need for practitioners to apply the law to their discipline and understand its effect on their work; and . the ability of practitioners to shape the development of the law as it evolves (law reform) – to make the law serve them and their profession. But most of all, they need to know enough to know when to seek professional legal help. The analogy is often made to that of a patient and doctor: the patient needs to know enough about health and medicine to practise preventive medicine, to know when to take an aspirin, and when to visit the doctor – all because it is cheaper and easier to stay well. Ideally, all university students in all the professions would be required as part of their general education to have a solid amount of law in their pre-professional and professional majors. To this end, the author would prefer to restructure the polarity of “lawyers versus non-lawyers” to become lawyers versus “potential clients” and to divide the category of clients into lay and professional. Hence, the job of the curriculum is to prepare and foster professional clients – the kind of clients that every lawyer wants and needs, clients who posses a substantial legal literacy to participate in the decisions that will affect them in their careers and understand the legal materials relevant to their subjects. Hence, the faculty is not training them to be mini-lawyers, “lite” lawyers, law clerks, or counterfeit lawyers, but professional clients who have the knowledge and skills to work with the lawyers on their team to achieve their professional goals and solve their professional problems. This would:

. . . . .

reduce malpractice, the costs of insurance, and lawsuits; reduce litigation and potential liability; reduce fear and insecurity and increase confidence; aid the lawyer-client relationship; and reduce the practice of so-called “Humpty-Dumpty law” – where the law is only considered after legal problems have arisen rather than as a means of preventing them in advance.

3.2 Student-centered learning But in order to do all this in a curriculum not primarily devoted to the teaching of law, the curriculum must be designed to answer this question: How? It must be student-centered (Liu, 2003), meaning that the students must take substantial control and responsibility for their own learning, to start professionalizing early, to work with those already in their industry. It is this participation of these “industry actors” – the non-lawyers, the clients – across disciplines that is the challenge, as McIntosh and Bailey (2004, p. 19) stress when they urge breaking out of traditional “organisational silos” in the academy. Since Stipanowich’s (1998) gloomy assessment noted earlier, some improvements have resulted, but they have likewise been spotty and incremental. Indeed, Henri et al. (2004) document that curriculum development of innovative teaching in construction technology still needs to address students’ “deficiency in powers of analysis, evaluation, synthesis and applying knowledge” because courses are too heavily teacher-centered and passive – instead of being problem-based, issue-based, and student-centered, as they should be (see also Doherty and Singh, 2005, p. 56). By the same token, the traditional law school essay-type examination may not be the best in this context. As Hargreaves (2005, p. 1) notes, “while essay type questions do test thinking skills, logic, understanding and writing skills, they may not test the breadth of the subject matter as well as short answer and multiple choice questions”. Hargreaves suggests using a mixture of these types of questions. This mixture of methods ought to mirror a mixture of modules and combinations of topics across the curriculum. Where the students are working in their second language, this necessarily includes language teaching. Indeed, it has been argued (Morris, 2005, pp. 62-3) that all law teaching is always language teaching, and (these days) it is almost always remedial. The law lives and moves and has its being in language – a precise, special, covenant language – and for the common law, that language is English. Learning the law is as much about expressing the law in that language and its special vocabulary as it is about knowing the law’s substantive doctrines (Howe, 1990). Students must, for example, know that “consideration” in contract law does not mean what it means in everyday parlance. Cotgrave (2005) notes the superficiality of teaching in the related subjects of environmental health, safety, and welfare, and argues that curriculum design and identification of learning outcomes may change significantly because of such events as new legislation and government policies – again, the impact of the law on non-law subjects. In urging interdisciplinary approaches to designing the construction curriculum, and citing Jucker (2002) and Wolfe (2001) in support of the need to “train

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generalists” who see connections and make links across different disciplines, Cotgrave (2005) further states (p. 33): The construction industry is complex and fragmented with many of the decision makers working for different organizations and being of different professions. The ability to design solutions which reflect a holistic appreciation, requires working closely with other professions.

This is correct, but this author parts company with all of these writers in their binary approach to specialists versus generalists. The best-trained people are arguably those who combine both specialization and generalization (Johnson, 2004). Specialization and generalization work in tandem – the “two tracks” again. These problems are endemic to law teaching generally whether in common-law systems or in “Confucian” learning cultures and in pedagogical situations where different systems of law (i.e. Hong Kong common law and PRC socialist law) are compared (Lu and Wang, 2004). Hence, in our Poly U experiment now underway, the teacher always gives research and writing assignments that replicate the disorder of real life, the untidiness of research (Schwartz, 2001). Students are told, per the familiar saying, that it is important to teach them how to fish instead of handing them a fish. The writer builds into assignments a few strategic vagaries such as misinformation, partial information, misdirection, and error, collects such items from his own research and practice, and then folds them into assignment materials. Students must learn that problems do not come neatly packaged in canned assignments where every detail and step are plotted for them without interruption. They receive some bad footnotes, incomplete directions, wrong names and titles, conflicting dates and stories, library assignments to find missing or misplaced items. They discover that part of the assignment is to test their creativity in figuring out how to overcome these all-too-real obstacles and come up with the desired results in spite of them. 4. A proposal for curriculum design change 4.1 Introduction This is a proposal regarding a possible curriculum-design modification in the legal curriculum for non-law-track students. It is based on three observations which were discussed in the prior section. The first is the fact that there appears to be a lacuna in the preparation that students presently receive in their study of law – namely, training in “how to study law” in contradistinction to the study of substantive or “doctrinal” law subjects themselves. The second is the conclusion, reached from a survey of the literature on the teaching of law to non-law-school students, which suggest that there is considerable room for improvement. The third is the presence of obvious and recurring pedagogical problems encountered by such students when they undertake not only the basic preparation and writing of required subject courses, but also their special research projects and assignments across the professional curriculum. All of these observations suggest the need for something more than the present curricular structure provides. The purpose of this proposal is to generate discussion of these important matters as a foundation for the design of courses that remedy the perceived deficiencies.

4.2 Situation in law schools When new students, whether undergraduate or postgraduate, commence their study in the law school (the University of Hong Kong – HKU – is an example), they are required to undertake several mandatory classes, all of which are designed to prepare the ground for the study of law (Morris, 2005). This cluster of classes includes legal writing (Bruce, 2002), reasoning and logic, introduction to thesis writing (Cooley and Lewkowicz, 2003a, b), quantitative/qualitative research (Patton, 2002), various library-orientation courses, courses in computer-assisted research and legal research methodology (Cottrell, 1999). As the subjects indicate, all of these courses are designed to give the students the tools they need throughout their study of the law and to remove the fear caused by the newness and strangeness of the subject. They are designed to answer questions such as “what is law?” and “what is not law?”. They are the beginning efforts to begin tuning their minds and to teach students “how to think like lawyers” (Morris, 2003). 4.3 Difficulties faced by non-law students If this is the ground preparation work for full-time law students, a fortiori it ought to be at least the same for non-law students studying law in other degree programs. But many non-law students are left to puzzle these matters out as best they can. Why this should be the case is a bit of a mystery. It seems that perhaps one reason argued by non-law professional faculty is that “we are not a law school” and are “not preparing students to become lawyers”. Even if we grant the truth of these propositions, the fact remains that many of the law classes provided for non-law students are as demanding as regular law-school classes. Examinations test the same kinds of insight and understanding, and in the same ways, as law-school exams. In other words, the limitation on the non-law-school curriculum as compared with that of a regular law school is not in depth but only in breadth. Does this therefore require that the approach taken for non-law students, as compared to law students, should be the same or different, and in what points and to what degree? At Poly U the curriculum focuses on more specifically “polytechnic” legal subjects rather than the larger general spectrum of law-school subjects, but it focuses on them in the same depth and detail as the students would encounter in counterpart classes in a “regular” law school. And certainly in all of this, the students face the same problems of research, thinking, writing, and scholarship that their law-school counterparts face. Thus, if the academy is serious about preparing students to know certain aspects of the law, it needs to start them out on a surer footing. If the curriculum design requires students simply to “jump into” their study of doctrinal law their learning about the underlying legal methods and research skills can only occur in a haphazard way. It is submitted that, at the beginning of each school year, it would be preferable to assemble all the students and explain to them – teach them – why their legal study is essential and provide the foundational tools they will need for that study. These problems multiply as students progress toward the postgraduate level, where students undertake legal research projects. One task which virtually all students struggle with is the all-important job of forming a (hypo)thesis for their work. As every good researcher knows, learning how to do that is neither easy nor self-evident, yet it forms the foundation for all that follows in a successful project that “turns over new

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ground”. Other problems include how to adjudicate between good and bad sources (Cooley and Lewkowicz, 2003, p. 26; Phillips and Pugh, 2002, p. 24), how to prepare footnotes and references, and in not a few cases how to write presentable academic English (Orange, 1986; Hong Kong Polytechnic University, 2005). 4.4 Introductory course for non-law students The concerns discussed above cannot be remedied without amendment and addition to the present curriculum. The lacunae could be addressed and remedied in a single, one-semester course, entitled perhaps “Introduction to the Study of Law for Non-Law Students”. It would best be taught through a team-teaching approach. Three preliminary questions arise: (1) Is there the desire, will and available faculty for such a change? (2) Is there the budget for such a change? (3) Is there room in the curriculum for such a change? The three observations noted at the beginning of this proposal and the suggestions raised by the research indicate that such problems should be addressed through changes in curricular design. Doing a more thorough job of “preparing the ground” at the beginning of the educational process would likely have the benefit of obviating many of the problems encountered later in the process. Without these measures, students cannot be said to possess, nor can professors or universities be said to have conferred, either graduateness, educatedness, or preferredness. 5. Conclusion Nietzsche was right: “When we have a why in life, we can bear with almost any how”. The faculty must therefore know, study, and follow the findings of the relevant research. If it is true, as Cownie (1999a, p. 51; 1999b) points out, that “professional knowledge is resistant to any substantial restructuring”, and that teaching habits and paradigms are therefore resistant to reflection and change in “blissful ignorance of the research evidence” (Jenkins et al., 2003, p. 124), then departments should perhaps insist on the necessary changes as a precondition for faculty advancement and promotion. All education, including legal education, is supposed to be like a cathedral: never finished, forever under construction, never reaching stasis or closure, and having many builders (Solomon, 1992). Inasmuch as there is a ”paucity of scholarship [that] is mirrored by a lack of curricular emphasis” (Stipanowich, 1998), particularly in the context of the built environment, this is the challenge of curriculum design in the new century. This challenge is particularly acute in the study of law by non-law students who will nevertheless move into a professional world rife with law. The questionnaire respondents and Socratic discussants in this study cited the need for greater detail, more case studies, more analysis, more examples and illustrations to aid their understanding – in other words, more depth, less breadth, with more comparisons to the law of other jurisdictions. All of this presents a significant challenge to an already overburdened and time-challenged curriculum and a faculty that have yet to theorize thoroughly what it is attempting – and should attempt – to do. Wordsworth (Hutchinson and de Selincourt, 1974, p. 588) wrote: “we to them will speak [. . .] what we have loved. Others will love, and we will teach them how”. But Wordsworth’s dictum, as this study shows, cuts two ways. “We” may teach “them” the

law and the rule of law that we love, but perhaps we may no longer teach them by the same means that we loved. For both students and teachers, Llewellyn’s (1951, pp. 105-6) dictum remains true: “no cure for law but more law”. The difference today from Llewellyn’s day is that he was advocating traditional, “pure” black-letter law. The new century demands that and so much more. References Bellah, R., Madsen, R., Sullivan, W., Swidler, A. and Tipton, S. (1996), Habits of the Heart: Individualism and Commitment in American Life, updated edition, University of California Press, London. Bok, D. (2003), Universities in the Marketplace: The Commercialization of Higher Education, Princeton University Press, Princeton, NJ. Boston College Law Library (n.d.), “Legal sources for non-law school courses”, Legal Research Guide #11, available at: www.bc.edu/schools/law/library/meta-elements/pdf/ nonlawschool.pdf (accessed September 12, 2005). Bruce, N. (2002), “Dovetailing language and content: teaching balanced argument in legal problem answer writing”, English for Specific Purposes, Vol. 21, p. 321. Bunni, N. (2000), “Recent developments in construction disputology”, Journal of International Arbitration, Vol. 17 No. 4, pp. 105-15. Byles, L. and Soetendorp, R. (2002), “Law teaching for other programmes”, in Burridge, R., Hinnet, K., Paliwala, A. and Varnava, T. (Eds), Effective Learning and Teaching in Law, Kogan Page, London. Chan, N. and Wong, A. (2005), “External examiner report”, MSc (International Real Estate) course, Department of Building and Real Estate, Hong Kong Polytechnic University, Hong Kong. Chen, P. (2005), “Academic community and education reform: the discourse of knowledge and power”, in Pan, M.Y. (Ed.), Inheritance and Reform: [Collected Materials of the] International Conference on Higher Education Reform in China, Xiamen Univeristy, Xiamen. Chow, V. and Li, J. (2005), “Cheung Kong unit sued over project delays”, South China Morning Post, September 23, p. C1. Christudason, A. (2006), “Using student feedback to improve the quality of teaching law to non-law students”, Law Teacher: The International Journal of Legal Education, Vol. 40 No. 1, pp. 41-58. Cooley, L. and Lewkowicz, J. (2003a), Dissertation Writing in Practice: Turning Ideas into Text, Hong Kong University Press, Hong Kong. Cooley, L. and Lewkowicz, J. (2003b), Thesis and Dissertation Writing at Postgraduate Level: Theory and Classroom Practice, University of Hong Kong English Centre, Hong Kong. Cotgrave, A. (2005), “Tuning the undergraduate construction curriculum: embedding health, safety and environmental issues in order to improve employability”, CEBE Transactions, Vol. 2 No. 1, pp. 28-43. Cottrell, J. (1999), Legal Research: A Guide for Hong Kong Students, Hong Kong University Press, Hong Kong. Cownie, F. (1999a), “Searching for theory in teaching law”, in Cownie, F. (Ed.), The Law School – Global Issues, Local Questions, Ashgate, Aldershot. Cownie, F. (Ed.) (1999b), The Law School – Global Issues, Local Questions, Ashgate, Aldershot.

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Doherty, C. and Singh, P. (2005), “How the West is done: simulating Western pedagogy in a curriculum for Asian international students”, in Ninnes, P. and Hellste´n, M. (Eds), Internationalizing Higher Education: Critical Explorations of Pedagogy and Policy, University of Hong Kong/Comparative Education Centre, Hong Kong. Endeshaw, A. (2002), “Teaching law to business students: an inquiry into curriculum and methodology”, The Law Teacher, Vol. 36 No. 1, pp. 24-43.

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Estes, A., Welch, R. and Ressler, S. (2006), “The assessment of teaching”, Journal of Professional Issues in Engineering Education and Practice, Vol. 132 No. 1, pp. 2-10. Feinman, J. and Feldman, M. (1985), “Pedagogy and politics”, Georgetown Law Journal, Vol. 73, p. 875. Freestone, R. and Wood, D. (2006), “Exploring strategies for linking research and teaching”, Journal for Education in the Built Environment, Vol. 1 No. 1, pp. 94-111. Friedman, T. (2006), The World Is Flat: The Globalized World in the Twenty-First Century, Penguin Books, London. Godonou, P. (2003), “Innovation and sustainable construction contributions from CIB”, in Leung, B., Kong, S. and Chan, A. (Eds), Innovation in Construction and Real Estate: Proceedings of the CIB Student Chapters International Symposium, Department of Building and Real Estate, Hong Kong Polytechnic University, Hong Kong, 26-27 September. Goldsmith, A. (1999), “Standing at the crossroads: law schools, universities, markets and the future of legal scholarship”, in Cownie, F. (Ed.), The Law School – Global Issues, Local Questions, Ashgate, Aldershot. Hargreaves, R. (2005), “External examiner report”, BSc (Hons) in Real Estate, Department of Building and Real Estate, Hong Kong Polytechnic University, Hong Kong. Henri, J., Frewer, R., Amato, A., Thilakaratne, R. and Trinidad, S. (2004), “Changing practice: an exercise in curriculum development of innovative teaching in construction technology”, in Atkinson, R., McBeath, C., Jonas-Dwyer, D. and Phillips, R. (Eds), Beyond the Comfort Zone: Proceedings of the 21st ASCILITE Conference, Perth, 5-9 December, pp. 365-73. Higher Education Quality Council (1995), “What are graduates? Clarifying the attributes of ‘graduateness’”, Quality Enhancement Group, Higher Education Quality Council, available at: www.city.londonmet.ac.uk/deliberations/graduates/starter.html (accessed 30 January 2006). Hong Kong Polytechnic University (2005), “Guidance notes for the assessment of the final year dissertation”, BSc (Hons) scheme in Building and Real Estate, available at: www.bre.polyu. edu.hk (accessed 2 January 2006). Howe, P. (1990), “The problem of the problem question in English for academic legal purposes”, English for Specific Purposes, Vol. 9, pp. 215-36. Hutchinson, K. (2005), “Content, learning methods and assessment of law on undergraduate courses in construction management and surveying”, CEBE Transactions, Vol. 2 No. 2, pp. 30-45. Hutchinson, T. and de Selincourt, E. (Eds) (1974), [W.Wordsworth], Poetical Works, Oxford University Press, Oxford. Jenkins, A., Breen, R., Lindsay, R. and Brew, A. (2003), Reshaping Teaching in Higher Education: Linking Teaching with Research, Kogan Page, London. Johnson, J. (2004), “The new global executive: what it takes to succeed”, available at: http://bus. ualberta.ca/rfield/Speeches/John%20Johnson%201998.htm (accessed 4 August 2005).

Jucker, R. (2002), “Sustainability? Never heard of it! Some basics we shouldn’t ignore when engaging in education for sustainability”, International Journal of Sustainability in Higher Education, Vol. 3 No. 1, pp. 8-18. Leung, M., Li, J., Zheng, F., Lu, X. and Lu, M. (2006), “Learning approaches of construction engineering students: a comparative study between Hong Kong and mainland China”, Journal for Education in the Built Environment, Vol. 1 No. 1, pp. 112-31. Liu, X. (2003), “Engineering education in the new century”, in Leung, B., Kong, S. and Chan, A. (Eds), Innovation in Construction and Real Estate: Proceedings of the CIB Student Chapters International Symposium, Department of Building and Real Estate, Hong Kong Polytechnic University, Hong Kong, 26-27 September. Llewellyn, K. (1951), The Bramble Bush: On Our Law and Its Study, Oceana, Dobbs Ferry, NY. Lu, G.S. and Wang, R.M. (2004), “Change learning styles to improve study quality”, in Pan, M.Y. (Ed.), Inheritance and Reform: [Collected Materials of the] International Conference on Higher Education Reform in China, Xiamen University, Xiamen. McIntosh, S. and Bailey, N. (2004), “Higher education, professionalism and skills in the built environment: the impact of the new urban agenda on teaching and learning”, Working Paper 05, Centre for Education in the Built Environment, Cardiff. McLernon, T. and Hughes, D. (2005), “Functional harmony in higher education?”, CEBE Transactions, Vol. 2 No. 3, pp. 5-20. Mohanan, K. (n.d.), “Who is an educated person? Ingredients of educatedness”, available at: www.cdtl.nus.edu.sg/publications/educated/intro.htm (accessed 30 January 2006). Morris, R. (2004), “Not thinking like a nonlawyer: implications of ‘recogonization’ for legal education”, Journal of Legal Education, Vol. 53 No. 2, pp. 267-83. Morris, R. (2005), “Globalizing and de-hermeticizing legal education”, Brigham Young University Education & Law Journal, No. 1, pp. 53-81. Nietzsche, F. (2000), Go¨tzenda¨mmerung – Twilight of the Idols, or How to Philosophize with a Hammer, Maxims and Barbs #12, netLibrary, Boulder, CO. Orange, L. (1986), English: The Preprofessional Major, revised edition, Modern Language Association, New York, NY. Patton, M. (2002), Qualitative Research and Evaluation Methods, 3rd ed., Sage Publications, Thousand Oaks, CA. Phillips, E. and Pugh, D. (2002), How to Get a PhD: A Handbook for Students and Their Supervisors, 3rd ed., Open University Press, Buckingham. Ross, G. (2001), “Quality and enhancement: graduateness”, available at: www.prs-ltsn.leeds.ac. uk/generic/qualenhance/graduate.html (accessed 2 February 2006). Schwartz, M. (2001), “Teaching law by design: how learning theory and instructional design can inform and reform law teaching”, San Diego Law Review, Vol. 38, pp. 347-462. Sidwell, A. (2005), Department Academic Advisor Report, Department of Building and Real Estate, Hong Kong Polytechnic University, Hong Kong. Siedel, G. (2000), “Six forces and the legal environment of business: the relative value of business law among business school courses”, American Business Law Journal, Vol. 37, pp. 717-41. Skwarok, L. (1995), “Business law for non-lawyers: setting the stage for teaching, learning and assessment at Hong Kong Polytechnic University”, Law Teacher: Journal of the Association of Law Teachers, Vol. 29 No. 2, pp. 189-212. Solomon, L. (1992), “Perspectives on curriculum reform in law schools: a critical assessment”, Toledo Law Review, Vol. 24, pp. 1-42.

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Stipanowich, T. (1998), “Reconstructing construction law: reality and reform in a transactional system”, Wisconsin Law Review, No. 2, pp. 463-578. Sweet, J. (2000), Legal Aspects of Architecture, Engineering, and the Construction Process, Brooks/Cole, Pacific Grove, CA. Ting, J., Chow, K. and Wong, Y. (Eds) (2006), Collected Essays on Foreign-Educated Students of Modern China, Hong Kong Museum of History, Hong Kong. Wang, X. (2004), “Exploring the knowledge structure of an emerging field: a study of curriculum structure and content of doctoral programs in higher education in China”, in Pan, M.Y. (Ed.), Inheritance and Reform: [Collected Materials of the] International Conference on Higher Education Reform in China, Xiamen University, Xiamen. Webb, J. (1996), “Why theory matters”, in Webb, J. and Maughan, C. (Eds), Teaching Lawyers’ Skills, Butterworths, London. Wolfe, V. (2001), “A survey of the environmental education of students in non-environmental majors at four-year institutions in the USA”, International Journal of Sustainability in Higher Education, Vol. 2 No. 4, pp. 301-15. Further reading Burridge, R., Hinnet, K., Paliwala, A. and Varnava, T. (Eds) (2002), Effective Learning and Teaching in Law, Kogan Page, London. Felsenfeld, C. (1981/1982), “The Plain English Movement in the United States”, Canadian Business Law Journal, Vol. 6 No. 1, pp. 408-52. Hong Kong University English Centre (n.d.), “English for law”, available at: http://ec.hku.hk/law (accessed 21 November 2005). Hong Kong University Philosophy Department (n.d.), “Critical thinking and logic”, available at: http://philosophy.hku.hk/think (accessed 21 November 2005). Leung, B., Kong, S. and Chan, A. (2003), Innovation in Construction and Real Estate: Proceedings of the CIB Student Chapters International Symposium, Department of Building and Real Estate, Hong Kong Polytechnic University, Hong Kong, 26-27 September. Ninnes, P. and Hellste´n, M. (Eds) (2005), Internationalizing Higher Education: Critical Explorations of Pedagogy and Policy, University of Hong Kong/Comparative Education Centre, Hong Kong. Pan, M.Y. (Ed.) (2004), Inheritance and Reform: [Collected Materials of the] International Conference on Higher Education Reform in China, Xiamen Univeristy, Xiamen. Corresponding author Robert J. Morris can be contacted at: [email protected]

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Juritecture of the built environment: a different view on legal design for multiple use of land

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Danie¨lle A. Groetelaers and Hendrik D. Ploeger OTB Research Institute for Housing, Urban and Mobility Studies, Delft University of Technology, Delft, The Netherlands Abstract Purpose – This paper aims to introduce a new view on the role of the lawyer in the process of development and maintenance of the built environment. Design/methodology/approach – For this paper the research consists of listing and analysing legal questions raised by multiple use of land. A multidisciplinary approach is used from a legal point of view and from a planning development point of view. Findings – It is argued that law is not only a way of setting boundaries, but also should be stimulating to the development and maintenance of the built environment. This is what we call “juritecture”. The juritect is a designing lawyer; the legal construction is his responsibility. The juritect should have a role in the design process as early as possible, and he should work together with planners and architects. On the one hand, the work of the juritect seems to be that of a legal craftsman. His toolbox consists of instruments of both property law and contract law. On the other hand, the juritect is a legal scholar. By study and discussion of cases and existing law, he opens the doors to further legal development. Research limitations/implications – This is a first exploratory article on the subject of juritecture. Although it is concluded that this concept will be valid for all legal systems, the article is confined to the continental European Civil legal system and, more specifically, to Dutch law. Originality/value – This paper introduces the new concept of “juritecture”, which challenges existing views on the role of the lawyer in the built environment. Keywords Legal profession, Legal theory, Sustainable design, Urban areas, The Netherlands Paper type Research paper

Introduction Urban areas have to cope with a dense population in a limited area. They must deal with a rising number of claims by a multiplicity of users (transport, industry, housing, recreation, etc.) on the (scarce) available surface areas. One answer to the increasing spatial claims is multiple use of land. The land is no longer the exclusive domain of one owner, with a more or less homogenous use (e.g. housing or industry). The available space, above and under ground level, is efficiently used by dividing the ownership of this space in the third dimension (multi-level constructions), and/or the fourth dimension (time-share). The authors wish to acknowledge the financial assistance of the Dutch government through the Habiforum Program Innovative Land Use and Delft University of Technology through the Delft Centre for Sustainable Urban Areas.

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This raises complex but also challenging spatial questions, which ask for a multi-disciplinary approach. Architects, planners and decision makers have to get round the table with, amongst others, lawyers. In the long term the success of multiple use of land depends not only on technical factors (e.g. the quality of the buildings), but also on legal factors: the quality of the legal structure which has been designed to accommodate it. The cohabitation of the parties involved must be both durable and sustainable. It is crucial that their mutual rights and duties are clear and well defined, offer enough certainty for now and in the future, but also offer scope for adaptation to future developments. To achieve successful legal designs for new forms of land use, there is a need for a fundamental change of approach. This we call “juritecture”. The legal structure is the responsibility of the “juritect”. Simply stated, the juritect is a designing lawyer, who should be involved in the project at as early a stage as possible. To provide solutions to the practical problems that we encounter in the built environment we have to rediscover and rethink the existing legal principles of land use. Furthermore, it is important to be aware of the interaction between the technical features of the building complexes and legal topics, for instance the liability for maintenance and damage. Last but not least, the juritect needs to be aware of the interests of all relevant parties, and to try to achieve a fair balance between them. Classical land law developed for the traditional two-dimensional use of land will not automatically provide the best way to deal with three- (or four-) dimensional use of land. In certain cases the law may offer a ready-made “frame work”. In The Netherlands the Civil Code offers a detailed description of the rights and duties of the owners and corporate bodies involved in an apartment block. However, a “ready-made” framework does not mean that the rules are tailor-made. Rules have to be adjustable for specific cases. This is an exploratory paper on the subject of juritecture. The paper focuses on the challenges of the lawyer as a “juritect”. In the development of multiple use of space, law is often studied as a given set of (government) rules, stetting limits for aspects such as noise, internal safety or safety rules near railway lines (De Wilde, 2006, pp. 122, 143, 146). We argue that law is not just a way of setting boundaries, but it should also be a stimulating instrument for the development and maintenance of the built environment. What is asked of the lawyer? We define the juritect’s field of action and we give insight into the challenges by using examples. Because of the authors’ backgrounds and the focus of our research the paper is confined to the continental European legal system – the Civil Law – and, more specifically, to Dutch law. However, we think that the concept of juritecture itself will be valid for all legal systems, because it doesn’t focus on problems or solutions as such, but on the role that the lawyer should play in the process of urban development. Juritecture The law as an instrument We argue that the law is not just a way of setting boundaries, but it should be a stimulating instrument for the development and maintenance of the built environment. But law originates from setting boundaries and has become a strong instrument from this point of view. Therefore it can be difficult for law to change, and to evolve.

At the beginning of the nineteenth century, at the time of the civil law codifications like the French Code Napoleon, it was assumed that law was just a reflection in rules of standards and values that lived in society (Groetelaers, 2004, p. 39). At the beginning of the twenty-first century the law is more like an instrument, which the government may use to realise social interventions. In an article on governance and law the Dutch legal sociologist Schuyt refers to the term “social engineering”, which was introduced by Roscoe Pound (Schuyt, 1985, p. 113). According to Pound, laws must be considered as instruments for social control, whose effective functioning could be improved by means of a scientific analysis. The law becomes an instrument to realise policy and as a result the development of legislation is liable to political, economic and cyclical changes. However, we could speak about an instrument with several limitations. One of those limitations is the fact that legislation is not a very flexible instrument. It takes a long time to change laws or to make new ones and therefore it is difficult to quickly adjust to changing circumstances. An example from Civil Law is the numerus clausus of real rights; the general principle that property rights are restricted to a closed list of standardized forms and that these rights cannot be expanded or modified by parties according to their specific wishes and needs (Merrill and Smith, 2000, p. 3). This is in contrast to the open system of contract law. The numerus clausus seems to oppose the instrumental function of the law, which asks for dynamics and flexibility. On the other hand it has been argued that the standardization of property rights offers advantages by lowering transaction costs (Merrill and Smith, 2000, p. 69). Legal culture can also obstruct the development of legal structures. Hyatt, speaking about Common Interests Communities in the USA, identified the following impediments for evolution (Hyatt, 1998, p. 337): . institutional inertia – the people involved, like solicitors, owners and board members, are reluctant to changes because of concerns over the effects of change; . reliance upon precedent (legal inertia) – it encourages conformity and impedes creative thought and solutions; . reliance upon forms – solicitors and clients use and reuse existing forms and expect a maximum return for a minimum intellectual investment in the project; and . societal “norms” – the emphasis on rights often overwhelms the need for collective solutions. Our experience is that the same conservative trends can be perceived in Dutch real estate practice. In combination with the fact that lawyers are “called in” at a late stage of the project, in order to put down the wishes of developers, this runs the risk that the realisation of projects with really innovating aspects will be hampered by legal “obstacles”. What is a juritect? In this field of tension we see a new role for what we would describe as a juridical architect, the “juritect”. Not only the construction, the architectural design, or the planning design are vital for the success of complex projects in the long term. There is also a need to achieve a sustainable legal structure. In this respect, the attention of policy makers seems to focus on zoning, environmental legislation and safety regulations.

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But private law is also important for a successful project. Next to the architectural aspect, the legal architecture of the complex, the “juritecture”, also deserves full attention. The juritect has to design a tailor-made legal solution. Rights and duties of the parties concerned must be delimited and fixed. The juritect must keep in mind the influence of architectural choices. For example, does the construction comply with the rules of neighbour law (source of nuisance or access to daylight or views)? Does the designed construction lead to the existence of party walls? Are commonly owned parts desirable or even needed, or should ownership – and therefore responsibilities – be strictly divided? Arrangements must be made for connections between parts that are in separate ownership (e.g. an escalator leading from the railway station on the lower level, and the shopping centre on the higher level, or a bridge between two towers). Is it necessary to foresee obligations (e.g. maintenance of parts, rebuilding after damage or destruction) to ensure that the complex is healthy from an architectural point of view? And last, but not least, the juritect is responsible – often in collaboration with a surveyor – for the description of the property and its boundaries in documents of title. The creative role of the lawyer is something the French authors Walet and Chambelland (1989) emphasize, when they discuss the legal construction of multiple use of space by use of “la construction en volumes”, a division in property volumes. They do not only refer to the relation between architecture and law mentioned in the works of the Roman architect Vitruvius (Walet and Chambelland, 1989, p. 11), but argue that the lawyer, should find inspiration in the art and science of architecture in order to overcome limitations by the traditional legal forms and to question traditional concepts of real estate law (Walet and Chambelland, 1998, p. 7). This view is at variance with the traditional view of the lawyer who is made subordinate to the developers and other actors involved. As Blandy et al. (2006, p. 2372) suggest in their study of power relations in multi-owned residential developments: “Those who are able to claim occupation of the juridical field [. . .] gain access to legal resources”. In this view the lawyer seems to be just an instrument which can be used by actors in order to reach their goals. This means that not every real property law practitioner can be called a juritect. The juritect is as far as possible an independent player in the field of development. He has to find a balance between all the interests involved in designing an appropriate legal structure, which will result in a sustainable solution. In order to be able to bring in his expertise in the most efficient way, and to test the sustainability of planned projects, the juritect should therefore be involved in developments in an early stage. Multiple use of land We specifically see a task for the juritect in the field of multiple use of land and multi-level constructions. But what is exactly meant by these concepts? What do the third or fourth dimension offer? Is the legal point of view on these topics the same as the physical point of view? What is multiple use of land? Before speaking about multiple use of land, we must realise that “land” does not refer only to the earth surface, or the land including the subsurface layers and the constructions attached to it. Most legal systems (both common law and civil law) follow the maxim cuius est solum est usque ad sidera, usque ad inferos: “whomsoever

owns the soil, it is theirs up to the sky and down to the depths”. This with the restriction that in practice the landowner’s rights are confined to that space he has a reasonable interest in (ITA Working Group on Subsurface Planning, 1991). It is important to notice that the concept “land” does necessarily refer to the third dimension: the space above and under the surface. The expressions “multiple use of land” or “multiple use of space” are therefore interchangeable. In the discussion about multiple use of land most definitions are based on the variables “space” and “function”. Priemus et al. (2004, p. 270) use a definition, which is based on three key variables: (1) space; (2) time; and (3) function. In their opinion multifunctional land use is the implementation of more functions in a determined place in a determined period of time. Purely linguistically, multiple use of space means using space for several uses. The variable “time” introduces a fourth dimension in multiple use of space. Priemus et al. (2000, p. 3) argue that in order to provide an appropriate definition of multiple use of space one needs to identify the different levels of the concept. On a local level multiple use of space is about intensifying the use of space in the third dimension (superposition of functions aboveground or underground). On the regional or national level the focus is on combining functions. This distinction has been discussed by Louw and Bruinsma (2006). They argue that multiple land use is a successor to the mixed land use concept. Mixed land use is a planning concept that is based on integrating functions instead of segregation of land use. Integration can manifest itself in several conceptual levels. This includes the conceptual level of integrating segregated uses, which involves overcoming regulatory barriers. This is therefore an important issue for the juritect. Louw and Bruinsma (2006) use the definition of mixed land use as a starting point to explain multiple land use, but they also argue that the concept of multiple land use “is not yet very well well-defined” (p. 5). However, they do say that multiple land use is “a far more ambitious concept of which mixed-use is an integral part” and that it “presents a concept of action, more than of contents” (p. 4). They also say that in the Dutch context multiple land use is “a label for innovation in existing practices in land use with a substantial institutional perspective” (p. 4). We argue that multiple use of land is a specification and condensing of the idea of mixed use of land, which is stronger in making it operational. Mixing uses is a planning concept, which manifests itself mainly in the second dimension. Multiple use of land implies a partitioning of the space in the third and fourth dimensions. For example a residential complex constructed on top of a shopping centre, which in turn rests on a underground car park. This way of construction can offer a solution for the problems in overcrowded city centres. But savings of space are not necessarily the aim (Shuddle, 2004, p. 10). Multiple use of space can also be a way to achieve diversity in the city with monotone residential or office areas being replaced by an exciting mixture of uses. Living, working, shopping, recreation, everything is offered in one and the same neighbourhood. Furthermore, tunnelling of road and rail transport can remove the nuisance of (traffic) noise.

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History of multiple use of land Louw and Bruinsma (2006) notice that the expression “multifunctional or multiple land use” started to appear in international literature in the late 1990s, but in fact multiple use of land is as old as the hills. For instance we find in a classical Roman legal text (Digest 43.17.3.7) the question of who may use the remedy uti possidetis – the interdict protecting the occupier of a building – in the case of a cenaculum (upper floor) or a kryptos (cellar): the user of that space, or the owner of the house above or under that space? In our modern cities we still find storages and shops under railway viaducts dating from the nineteenth century. However, until recently the interests at stake remained relatively small. The railway company was owner of ground, viaduct and the spaces under it; the shops under the railway track were granted in return for rent. But over the years the projects became larger, and the number of parties and interests involved have increased. For instance the users might want a right on the space that can be used as collateral for mortgage secured loans, in order to raise money to invest in their business. Also the proportions become larger and relations more complicated, for example as result of privatisation of public transport in complexes where a railway station is combined with local transport (bus/tram/metro station), and other functions (shopping/offices/housing). A good example is Forum les Halles in Paris. This is a multilevel underground complex featuring a large shopping mall, museums, a library, and a sports centre in combination with underground stations for metro and suburban trains. Multiple use of land from a legal point of view So far we explained multiple use of land from a physical point of view, but there is also a very important institutional context. Louw and Bruinsma (2006) speak about a “substantial institutional perspective”. We have already mentioned the rights to use space above or below the surface. How does the lawyer handle multiple use of land? Let’s start with a very simple (specifically Dutch) example, that of heavy machinery in a factory (see Figure 1). According to Dutch land law (and a common rule in most legal systems), ownership of land also involves the ownership of structures which are “permanently” affixed to the land, either directly or because they are connected to other structures within the property. When heavy machinery is placed in a factory and it is attached to the factory floor it automatically becomes part of the land. But very often

Figure 1. Heavy machinery in a factory

these machines are leased to the factory owner by other companies. To secure the right of the lessor (and therefore avoid problems in case of a bankruptcy) a building right (Dutch: opstalrecht, French: droit de superficie) is established to make sure that the machine stays in the ownership of the lessor. However under Dutch law this legal construction is impossible if the land is not owned by the factory owner, but is leased to him on a long lease (Dutch: erfpachtrecht). From a physical point of view there is no difference, but in this situation the legal construction is far more complex. In order to establish a building right on the land that is leased out on a long lease, the factory has to be split up into apartment rights. It is possible to establish a building right on an apartment right, even when the building itself is held under a long lease. Although this is a very simple example from the physical point of view, this is a complex legal construction. One can hardly say there is a multiple use of space. Nevertheless the legal design is already complex. In The Netherlands, apartment rights are the most common way to create multiple use of land for owner-occupied apartment buildings. But apartment rights are certainly not limited to residential use. Commercial complexes or parking garages can also be split up into apartment units. A recent change of the Dutch civil code even made it possible to split up land without any buildings in apartment rights: something that was needed in practice for harbours for pleasure ships and for car parks. One can also see combinations of different types of use in one and the same complex. However this can cause problems because of the different needs of the parties involved. This can be illustrated by a recent example from Dutch case law (Supreme Court, 24 May 2002, Soeverein & Obool v. Winkelhof ). The case was about a multi-level complex, with a combination of a shopping centre and a bowling centre at ground level and three residential apartment blocks on top. Each part had its own entrance. The whole complex was split up in apartment rights. When the owner of the shopping centre wanted to reconstruct his entrance, he was opposed by the owners of the residential apartments, who claimed – with success – that the owner of the shopping centre needed the consent of all the other apartment owners before changing the construction. We may assume that the establishment of apartment rights for the whole complex seemed the simplest solution at the time of construction of the complex. However, as this case clearly shows, this solution did not work in the long run due to the fact that the residents of the apartment towers and the owner of the commercial part have different interests. To prevent this kind of problem one may divide the complex into independent legal titles. One way to realise this in Dutch law is by the use of a building right (opstalrecht). This is a limited real right, so “a real right ‘less than ownership’ in a thing owned by a person other than the holder of such a right” (Kleyn and Boraine, 1992, p. 48) and gives the holder the right to construct something over, above or in the land of the other. The holder of the building right also holds the ownership of the construction. In this case there are – unless explicitly established – no common parts in the complex. More recently the concept of “footprint ownership” or “footprint lease” (Van Velten, 2006a, pp. 58-65, 424-8) has been introduced. We give a simple example (see Figure 2). A and B want to develop two commercial complexes. Complex A is located on ground level, while complex B will be constructed on top of it. In case of “footprint ownership” small parts of the parcel of A are transferred in ownership to B. The foundations of the top layer buildings are then situated on these mini parcels. But the small parcels are

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not only intended to carry the building in a constructive way, but also in a legal way. According to Dutch law the ownership of the top layer building will follow the ownership of the small parcels it is constructed on, even when the largest part of the building is actually localised above the parcel that is owned by the owner of the lower building. In any case servitudes are needed to give B the right to keep those parts above the land of A. But maybe more servitudes have to be established for the construction of utilities or to regulate rights of way. Even more complex situations can easily be imagined, for instance if A and B want a common parking garage under the complex. There is no need to elaborate further in this article on these kinds of physical and legal constructions, because the solutions chosen will depend on the principles of land law in the relevant national jurisdiction. But these examples do illustrate the important task of the juritect, especially in case of multiple use of land. The legal structure should be designed simultaneously with the physical structure. Without the juritect’s efforts the complex cannot be a success in the long term. They illustrate the challenge for lawyers that multiple use of land offers. But this challenge goes beyond just establishing the rights of users of a structure. There is also a challenge in stimulating the development of multiple land use. The complex legal situation should therefore not prevent people from developing multifunctional projects. Case study: restructuring of business parks in The Netherlands Part of our research project involves the applicability of the juritecture concept to the restructuring of business parks. Restructuring of business parks is an important policy issue in The Netherlands (ETIN Adviseurs, 2003): The current way of planning of business parks in the Netherlands has been superseded. The mono functional, large-scale expansion areas in the urban fringe do not meet the current quality – and sustainability demands, which society wishes for. Moreover the current manner of development and management insufficiently solves the problems of the changing character, scale and scope of the market demand (VROM-raad, 2006).

The Netherlands Council of Housing, Spatial Planning and the Environment (VROM-raad) claims that the concept of business parks has become “polluted”. Over the years a pure business function has been overrun by other activities such as shops, entertainment centres, children’s playgrounds and religious centres (VROM-raad, 2006, p. 49). The use of the word “polluted” gives these multifunctional developments a negative aura, although there are “legitimate” reasons why these developments occur, one of these being that there is no scarcity of land for business parks, which means there is no incentive to use the land accordingly. This differs from the situation in residential areas where house building is competing with other functions because of

Figure 2. Footprint ownership

restrictive spatial policies. The question is whether these developments are really undesirable or whether they are only unstructured and need to be managed better. There seems to be a need for changes in both development and management. Business parks should meet the requirements of business areas, but it should also be possible to break into a new market. This can vary from admitting other functions to a complete transformation. As can be seen in The Netherlands, former business parks and industrial areas are also transformed into residential areas (for example “De Kop van Zuid” or the “Stadshavens” project in Rotterdam). Bontje (2004, p. 703) claims that for the realisation of business parks “the temptation to choose easier, less sustainable solutions is hard to resist”. However quality and sustainability seem to be important to society (according to the VROM-raad). What do we want then? Apparently we do want sustainable development/design of business parks in order to delay or prevent the decay of business parks. What does sustainable mean in that respect? Bontje (2004) gives an overview of strategies to improve the contribution of business locations to a sustainable local and regional development, which he bases on a literature review of the topic. He discerns several dimensions of sustainability with corresponding strategies to realise sustainability (see Table I). Sustainability can manifest itself in several dimensions: land use, building design and construction, transport, energy use, pollution, material flows, social and cultural issues and policy. Bontje (2004) says that his list is “without doubt not yet exhaustive”. We need to add the legal dimension to this list. The juritect’s role in the field of restructuring of business parks has a strong link to the desire for sustainable development. First the juritect has to initiate and facilitate changes (transformation) and second he is involved in managing the “results”. The role of the juritect should be the creation of sustainable legal structures; meaning the ability to meet a long life span, the option to be flexible within changing circumstances and to supply sufficient procedural safeguards. In the civil law system the third criterion is well established, but the other two have to be reconsidered. Meeting a long life span and being flexible within changing circumstances are closely connected to each other. Legal structures have to be flexible in order to have a long life spans. The longer the life span the more changes occur, for example social or economical changes. Economic changes and business cycles are very important for the development and restructuring of business parks and increase in importance over time. These factors should therefore be taken into account in order to also create life cycle resistant business areas. A very important motive for multiple use of space on business areas is efficient operational management. An example is the so-called “clusterkas” concept (greenhouse cluster), which was designed for the important Dutch greenhouse area “Westland”. This innovative concept has to create synergy and has to improve productivity. The concept started from the idea that combining companies in the same space will increase returns. The “clusterkas” is a greenhouse on top of a combined business complex. In this complex all the companies in the production chain are using the same space and systems. This results in an increase in use of space from 50 per cent to 80 per cent. Furthermore, there is an increase in the efficient use of space over time from 30 per cent to 60 per cent (Kenlog, 2006). But other factors also influence the demand for business areas. Pellenbarg (2004, p. 504) describes two trends in the demand for business parks: the demand for locations

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Dimension

Sustainability strategy

Land use

Reducing need for greenfield land through higher density and re-use of brownfields Promotion of multiple space use: combining functions within business park and/or individual buildings; optimal use of area throughout day and week Integration in/connections to built and natural environment

Building design and construction

Making buildings easily adaptable to other functions Energy-saving measures Use of renewable energy sources Ecological construction: minimising use of building materials, using environmentally friendly materials, recycling, etc.

Transport

Optimal access to public transport Slow-traffic-friendly environment Discouraging use of non-environmentally friendly transport modes (private cars, trucks, planes, etc.) Discouraging long/encouraging short commuting distances

Energy

Minimising energy use Increasing share of renewable energy (solar, wind, photovoltaic, etc.) Minimising loss of heat (insulation)

Pollution

Minimising emissions in air and water Minimising soil pollution

Material flows

Minimising flows of water, paper, data, waste (especially packaging materials), etc.

Social and cultural issues

Fair chances for local/regional working-age population on employment in business park “Liveliness”, accessibility, attractiveness for people living near business park Trying to integrate business location in people’s “sense of community” Promoting “sense of community” of entrepreneurs Improving service level for inhabitants and employees: cultural facilities, places to go out, health, sports, education, etc.

Policy

Participation of stakeholders in planning process Encouraging and enabling sustainability strategies of stakeholders Regional co-ordination/regional sustainability strategy (avoiding “nimbyism”) “Horizontal co-ordination” (avoiding conflicting sectoral policies) “Vertical co-ordination” (local-regional-national . . . European?) “Horizontal co-ordination” (avoiding conflicting sectoral policies) “Vertical co-ordination” (local-regional-national . . . European?)

302

Table I. Dimension of sustainability and sustainability-enhancing strategies

Source: Bontje (2004)

“earmarked particularly for settlement by specialist companies or for settlement bound by specific conditions” and the “growing tendency to reposition various types of government policy, among which is spatial policy, in such a way that they contribute to the improvement of environmental conditions”. According to Pellenbarg “both trends culminate in the emergence of ‘sustainable business sites’ as a new location type on the growing list of earmarked locations”.

One of the concepts to create “sustainable business sites” is park management. Park management is a process that is focussed on prolonging the lifetime of business sites. According to Van Engelenburg et al. (1998, p. 49) it is a tool to manage the total process of design, development, distribution and management of business parks. This goes beyond restructuring, which is just a once-only activity (Pellenbarg, 2004, p. 506). Park management is a permanent activity and therefore is better suited for take advantage of changing circumstances. In that respect it is a flexible tool, which should be supported by a sustainable (and flexible) legal structure. Van Engelenburg et al. (1998) certainly acknowledge the role of legal design. They discern six stages in the process of realisation of business parks. In their second stage (design) the requirements for planning, design and management have to be “legally established”. However they don’t exactly explain what is meant by that. Because park management is strongly focussed on management there must at least be some legal framework for that. We see here a strong interaction between the juritect in his role as a craftsman and as a legal scholar. For a good management it proved to be desirable to create an association that can take care of the daily management, and, for example, can contract with suppliers, contactors, etc. In Dutch law a “gap” has been identified due to the absence of the possibility to legally “bind” participants in park management to the membership of an association of owners. In legal literature suggestions have been made to introduce such compulsory membership in certain cases (Van Velten, 2006b), and one may expect that in future such a provision will be introduced in the Dutch Civil Code. However, until now the juritect as a craftsman has had to find alternatives. All those alternatives, like the establishment of an association by means of conditions in the deed of long lease, do not offer a “100 per cent safe” solution, because the enforcement of a membership of such an association is doubtful. Indeed, in the law on apartment ownership (part of the Civil Code), the establishment of such an association is laid down, and all apartment owners are compulsory members of this association. This is an important and necessary exception to the freedom of association as laid down in the Dutch constitution. So, if one should use apartments’ rights for the legal design of the business park, the compulsory membership of the association can be arranged. Dutch law does not restrict the use of apartment rights to flat buildings. However, as we have seen, the apartment right design may have disadvantages in particular instances because of the rigidity of the concept. It is therefore the juritect who has to make the choice and who has to tailor the design to the actual needs in a specific case. Analysis and conclusions Challenges for the juritect The general perspective on law, from planners, designers and lawyers, seems to be that law places restrictions, and therefore barriers, to the realisation of desired projects. Indeed, to a certain extent, this view is correct in that a certain “set of rules” – the systems of the law, the legislation and case – is fixed, and changes to those rules are difficult and can be time consuming. However, it seems more fruitful to take another point of view: that of the juritect. As a designing lawyer, he takes part in the design process. Although the juritect is bound to the existing law, he should be able to propose solutions that make creative use of that law. His toolbox consists out of instruments of both property law and contract law.

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For instance the Dutch Civil Code does not forbid the use of limited real rights as long lease to create a division in property volumes, nor a division in layers of ownership. Therefore the use of “footprint long lease” or “footprint ownership” as explained above is possible as an alternative to the creation of apartment units. At first sight the work of the juritect seems to be that of a legal craftsman, like a solicitor or a (Roman) notary. As specialists in land law they are responsible for the legal design of the project. However, in practice the introduction of a really innovative solution will be difficult. Parties involved will hesitate to use new and therefore unfamiliar legal structures because of the need for legal certainty. This may even be the case in situations where this would mean that projects cannot be realized in the way originally envisioned. Here we see an important task for the juritect as a legal scholar. By study and discussion of (supposed) limitations in the existing law, he opens the doors for further legal development. New concepts and possible structures should be discussed and tested first in theory (the legal laboratory), to identify both the opportunity and limitations of the existing system of law. Changes in legislation may be proposed. Inevitably this means a direct connection between legal practice and legal scholarship. Cases and questions from practice should end up at the sketch board of the scholar. Discussion in literature is the way to prepare for the introduction of new concepts and legal practice and, if needed, changes in legislation can then follow. Furthermore, we are of the opinion that the juritect should also have a role as early as possible in the design process, and that he should work together with planners and architects. With his legal expertise the best design, both architectural and juritectural, can be reached. If he is confronted with a fait accompli, meaning that he has to fit the legal structure to the (no doubt) ingenious physical design, it is in fact already too late. The legal structure then runs the risk of being very complicated and less tailored to the situation now and in the future. In summary, juritecture involves an integrated vision of the built environment. The juritect’s core business is therefore: . developing and designing; . working from solutions (not problems); . using the law as a tool (stimulation); and . emphasis on management and therefore focussed on sustainability (life span) of structures. In this role he must have an open eye for the influence of the architectural design on the legal design (and vice versa). References Blandy, S., Dixon, J. and Dupuis, A. (2006), “Theorising power relationships in multi-owned residential developments: unpacking the bundle of rights”, Urban Studies, Vol. 43 No. 13, pp. 2365-83. Bontje, M. (2004), “Sustainable new economic centres in European metropolitan regions: a stakeholders’ perspective”, European Planning Studies, Vol. 12 No. 5, pp. 703-22. De Wilde, T.S. (2006), Rail Estate: Multiple Use of Space and Railway Infrastructure, Movares, Utrecht.

ETIN Adviseurs (2003), Herstructureringsopgave in de G30-gemeenten, ETIN Adviseurs, Tilburg. Groetelaers, D.A. (2004), Instrumentarium locatieontwikkeling. Sturingsmogelijkheden voor gemeenten in een veranderde marktsituatie, Delft University Press, Delft. Hyatt, W.S. (1998), “Common interest communities: evolution and reinvention”, 31 J. Marshall L. Rev. 303, pp. 303-94. ITA Working Group on Subsurface Planning (1991), “Legal and administrative issues in underground space use: a preliminary survey of ITA member nations”, Tunneling and Underground Space Technology, Vol. 6 No. 2, pp. 191-209. Kenlog (2006), “‘Clusterkas’ wil wereld veroveren”, available at: www.kenlog.nl/downloads/ 20060725_clusterkas.pdf Kleyn, D.G. and Boraine, A. (1992), The Law of Property, Butterworths, Durban. Louw, E. and Bruinsma, F. (2006), “From mixed to multiple land use”, Journal of Housing and the Built Environment, Vol. 21, pp. 1-13. Merrill, T.W. and Smith, H.E. (2000), “Optimal standardization in the law of property: the numerus clausus principle”, The Yale Law Journal, Vol. 110 No. 1, pp. 1-70. Pellenbarg, P.H. (2004), “Park management as a tool for careful industrial land-use planning”, Journal of Environmental Planning and Management, Vol. 47 No. 4, pp. 503-16. Priemus, H., Nijkamp, P. and Dieleman, F. (2000), Meervoudig ruimtegebruik, stimulansen en belemmeringen, Delft University Press, Delft. Priemus, H., Rodenburg, C.A. and Nijkamp, P. (2004), “Multifunctional urban land use: a new phenomenon? A new planning challenge?”, Built Environment, Vol. 30 No. 4, pp. 269-73. Schuyt, C.J.M. (1985), “Sturing en het recht”, in Bovens, M.A.P. and Witteveen, W.J. (Eds), Het schip van staat. Beschouwingen over recht, staat en sturing, Tjeenk Willink, Zwolle. Shuddle, S.I. (2004), Physical Safety in Multiple Use of Space, Ipskamp, Enschede. Van Engelenburg, H., Kloosterman, H.J.J., Hugenholtz, N. and Reijnoudt, J.E. (1998), “Beter beheer van werklocaties door strategische planning”, Stedebouw en Ruimtelijke Ordening, Vol. 79 No. 4, pp. 49-53. Van Velten, A.A. Jr (2006a), Privaatrechtelijke aspecten van onroerend goed, Kluwer, Deventer. Van Velten, A.A. Jr (2006b), “Juridische vormgeving van parkmanagement”, Weekblad voor Privaatrecht, Noteriaat en Registratie, No. 6681, pp. 661-8. VROM-raad (2006), “Werklandschappen. Een regionale strategie voor bedrijventerreinen”, advice no. 053, VROM-raad, Den Haag. Walet, P. and Chambelland, P. (1989), La construction en volumes, Masson, Paris. Further reading Grant, J. (2002), “Mixed use in theory and practice. Canadian experience with implementing a planning principle”, Journal of the American Planning Association, Vol. 68 No. 1, pp. 71-84. Corresponding author Hendrik D. Ploeger can be contacted at: [email protected]

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Alice Christudason Department of Real Estate, School of Design and Environment, National University of Singapore, Singapore Abstract Purpose – The paper seeks to consider the basis on which a management corporation can represent original and subsequent purchasers of units in strata developments in a representative action against developers; the significance of unit owners’ share values when courts award compensation; vicarious liability; and developers’ use of the “independent contractor” defence in relation to its liability for defects in common property. Design/methodology/approach – The paper analyses cases from several common law jurisdictions, with a focus on Singapore Court of Appeal decisions. Findings – The paper highlights the problems posed as a result of the doctrine of privity in relation to management corporations’ claims against developers for defects in common property; the implications of unit holders’ share values; and the circumstances in which developers can avail themselves of the independent contractor defence. Practical implications – The paper will be instructive to developers, contractors, management corporations and both original and subsequent purchasers of units in strata developments. Originality/value – The paper brings to focus the importance of due consideration by the management corporation before it commences a representative action on behalf of the subsidiary proprietors; and also highlights procedures and/or legislation that need to be implemented, failing which there may be financial implications that can render a “successful” litigation against the developer a pyrrhic victory. Keywords Property law, Contracts, Torts, Share values, Singapore Paper type General review

Structural Survey Vol. 25 No. 3/4, 2007 pp. 306-318 q Emerald Group Publishing Limited 0263-080X DOI 10.1108/02630800710772872

Introduction The Building Maintenance and Management Act[1] (BMSMA) and the Land Titles (Strata) Act[2] (LTSA) regulate the maintenance and management of strata developments in Singapore. The latter is based on the Australian (New South Wales) Conveyancing (Strata Titles) Act of 1961. The legislation imposes responsibility for the maintenance and management of common property in a strata development on a management corporation. Thus, when there are defects in the common property of strata developments, the management corporation is responsible for effecting repair and/or rectification works. The management corporation is a legal entity comprising the unit owners, known as the subsidiary proprietors, in a strata development. Evidence[3] reveals that in Singapore, there are a substantial number of construction-related disputes against developers relating to defects in common property. In such cases, strata legislation empowers the management corporation to

commence a “representative action” on behalf of the subsidiary proprietors of the development[4]. In this regard, several broad issues emerge: (1) On what basis can unit owners obtain redress from the developer concerned? (2) What is the extent of the damages that can be recovered by unit owners who sue in contract? (3) Can the developer avail itself of the independent contractor defence? To elaborate, by the time latent defects in common property in strata developments are manifested, the subsidiary proprietors may comprise of not only “original” purchasers (that is, those who bought their units directly from the developer), but also “subsequent” purchasers who bought their units from the original purchasers. While the original purchasers of units in the strata development may well have a contractual basis for claiming against the developer for defects in the common property, the legal basis upon which subsequent purchasers can claim will have to be in tort[5]. This in turn raises issues with regard to the nature of the management corporation’s representative capacity to commence legal proceedings in contract and in tort. The difficulty is compounded where some, but not all of the original purchasers have authorized the legal proceedings by the management corporation, or where those who purported to authorise the proceedings do not have the legal capacity to do so in contract (Leong, 2005). A related issue (but from the developer’s perspective) is whether there can be vicarious liability on the part of the developer for defects in common property, or whether the developer can avail itself of the independent contractor defence. This would in turn depend on whether the duty borne by the developer is a delegable or non-delegable one. Drawing from cases that have culminated in the Singapore courts, this paper focuses on the issues that arise where the management corporation commences litigation against the developer for defects arising from the negligent construction of common property. The issues are discussed in the light of the recent Singapore Court of Appeal decision MCST Plan No. 2297 v. Seasons Park Ltd[6] (Seasons Park). References are also made to the corresponding legal position in various Commonwealth jurisdictions, including the UK, Australia and New Zealand. Legal characteristics and duties of the management corporation The management corporation and “common property” (Christudason, 2004) Adapted from section 147 of the New South Wales Strata Titles Act 1973, section 116 of the Singapore LTSA[7] empowers management corporations to represent subsidiary proprietors in legal proceedings concerning the common property of the strata development. The relevant part of section 116 of the LTSA states (inter alia) that: (1) Where all or some of the subsidiary proprietors of the lots in a subdivided building are jointly entitled to take proceedings against any person [. . .] (any such proceedings being proceedings for or with respect to common property), the proceedings may be taken by [. . .] the management corporation as if it were the subsidiary proprietors of the lots concerned.

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It is noted here that the management corporation does not own the common property; instead, the common property is owned by every subsidiary proprietor as tenants in common in undivided shares in proportion to their share value[8]. By section 2 of the BMSMA “common property” includes: (a) in relation to any land and building comprised [. . .] in a strata title plan, such part of the land and building – (i) not comprised in any lot or proposed lot in that strata title plan; and (ii) used or capable of being used or enjoyed by occupiers of 2 or more lots or proposed lots.

The management corporation and its responsibility vis-a`-vis the common property Section 29 of the BMSMA sets out the duties of the management corporation in relation to the common property as follows: (1) Except as otherwise provided in subsection (3), it shall be the duty of a management corporation – (a) to control, manage and administer the common property for the benefit of all the subsidiary proprietors constituting the management corporation; (b) to properly maintain and keep in a state of good and serviceable repair (i) the common property.

Representative action by management corporation for defects in common property: MCST Plan No. 1938 v. Goodview Properties Pte Ltd (Goodview)[9] The Singapore courts have in several cases[10] considered the effect of section 116 of the LTSA. The most recent was Goodview. The strata development in this case comprised of 615 strata units. However, the management corporation brought an action in contract against the developer for and on behalf of just 24 subsidiary proprietors, who had direct sale and purchase agreements with the developer. The action was for alleged breaches of the agreements and related to the faulty and defective construction of certain areas of the common property in the development. The preliminary procedural point raised by the developer in the Court of Appeal was as follows. As the common property was held by all the subsidiary proprietors of the condominium as tenants-in-common in undivided shares, was it possible for just some of the subsidiary proprietors to maintain a contractual action against the developer in respect of the common property? Was it not necessary for all the subsidiary proprietors of the condominium to act together (or not at all) on such matters? The intention of section 116 of LTSA was scrutinized. Justices LP Thean and Chao Hick Tin expressed their agreement with RSP Architects Planners & Engineers v. Ocean Front Pte Ltd[11] (Ocean Front). In that case, it was stated that the purpose of section 116 was to simplify the procedural aspect of the proceedings. It simply avoids having to name all the subsidiary proprietors, or those who are concerned in the proceedings, as either plaintiffs or defendants as the case may be. The specific issue here was whether the management corporation was entitled at law to represent (and sue) the developer on behalf of two or more of the subsidiary proprietors who had entered into a contract with the developer to purchase the lots.

The Court of Appeal decided that: . it is possible for just some subsidiary proprietors (as long as there are two or more) to be represented by the management corporation to sue the developer in contract; and . the claim for damages with respect to the common property will be proportionately abated in relation to the share value represented. The following section considers the different categories of purchasers who may have a contractual claim against the developer. Categories of subsidiary proprietors to whom the developer owes contractual obligations There are several groups of subsidiary proprietors who may have contractual rights against the developer: (1) Subsidiary proprietors who enter into the standard sale and purchase agreement[12] (the “standard agreement”) with the developer prior to the development obtaining a temporary occupation permit (TOP), certificate of statutory completion (CSC) or legal title[13]. (2) Subsidiary proprietors who purchase from original or sub purchasers within the period prior to the development obtaining either TOP, CSC or legal title. Such purchasers are also required to enter into the standard agreement with the developer concurrently. (3) Subsidiary proprietors who enter into a private treaty (that is, not the standard agreement) with the developer after CSC and legal title are obtained. (4) Subsidiary proprietors who purchase from original or sub purchasers and had entered into private treaty with third parties after CSC and legal title are obtained. In situations (1) and (2), purchasers enter into the standard agreement with the developer. However, in situation (3), the developer owes no obligation directly to the subsidiary proprietors with regard to the condition of the common property. Once CSC and legal title are obtained, the developer may terminate the development housing license. From such time, the standard agreement need no longer be used and the developer does not own the common property. Instead, the existing subsidiary proprietors own the common property as tenants-in-common and the management corporation assumes responsibility for its management and maintenance. Thus the contract entered into between the purchaser and the developer in situation (3) is solely for the purpose of the sale of the individual unit – the private treaty does not contain terms pertaining to the developer’s responsibility for the common property. It is therefore assumed that the purchaser accepts the common property in an “as is where is” condition at the time of purchase. Similarly for subsidiary proprietors in situation (4), there is no contractual relationship with the developer. Hence, the management corporation cannot represent these groups of subsidiary proprietors in contract against the developer for common property defects. The above illustrates the difficulty of achieving an absolute 100 percent representation of subsidiary proprietors who have the legal capacity to sue the developer in contract.

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The developer’s obligations under the “standard” agreement As this section focuses on management corporations representing subsidiary proprietors in contractual claims against the developer for common property defects, only the terms and obligations in the standard agreement that relate thereto are considered. Clause 1.1.1 of the standard agreement defines “defect” as: . . . any fault in the unit of the housing project or the common property which is due to either defective workmanship or materials or to the unit, the housing project or the common property, as the case may be, not having been constructed according to the specifications.

Clause 9.1 sets out the developer’s obligation as follows: . . . to build the unit, together with all common property of the building and the housing project in a good and workmanlike manner according to the specifications and the plans approved by the building authority and other relevant authorities.

Thus, in relation to defects in common property, there is a “breach” of the agreement only if: . the common property was defective in workmanship or material; or . the common property was not constructed in a good workmanlike manner; or . the common property was built not in accordance to the specifications; or . the common property was not built in accordance to the plans that were approved by the building authorities or other relevant authorities. MCST No. 2297 v. Seasons Park Ltd (Seasons Park)[14] In Seasons Park, the management corporation’s action against the developer was brought in both contract and tort. The claim was made by the management corporation on behalf of all subsidiary proprietors in respect of defects and damage to the common property, as well as to the individual units of the subsidiary proprietors. The list of defects included leakage and seepage of water, de-bonding of tiles, soil settlement, loose grille covers, obstruction of refuse chutes, and various other items. It was contended by the developer that of the 49 members who had voted for the resolution to commence action against the developer, only 40 were the original purchasers. In addition, it was observed that the management corporation had not been able to identify or produce particulars of the individual subsidiary proprietors it was representing, and on whose behalf it was suing in contract. It had been stated in Khong Guan, Ocean Front and Goodview that the purpose of section 116 of the LTSA was to simplify procedure in avoiding the naming of all or some subsidiary proprietors who are concerned in the proceedings as plaintiff. However the issue of whether the requisite procedure – for example, whether there was a need to obtain written consent from the subsidiary proprietors who wished to be represented by the management corporation – had not been considered before. The position taken by the Court of Appeal in Seasons Park was that in addition to obtaining written consent, the management corporation must also verify that the authorisations came from original purchasers only. Furthermore, a proper resolution in a meeting had to be obtained. This was because the cost of proceedings is paid from the maintenance fund and the usage of this fund has to be accounted for to all subsidiary proprietors.

Review of section 116 of the LTSA To recapitulate, insofar as the contractual action against the developer is concerned, section 116 of the LTSA empowers the management corporation to sue on behalf of the individual subsidiary proprietors who are the original purchasers. This way, multiple claims may be advanced in a single action for reasons of procedural convenience; section 116 facilitated the representative action in contract. Section 116 went a step further by including the phrase “all or some of the subsidiary proprietors of the lots”. It therefore also provides for the situation where the management corporation may have to represent just some subsidiary proprietors in proceedings pertaining to common property. In the Goodview judgment, LP Thean explained that there can be situations where the management corporation may not be able to obtain a 100 per cent representation from all original subsidiary proprietors for a contractual claim against the developer. For example, when the developer wears the hat of a subsidiary proprietor for unsold units, it is almost certain that the developer will not agree to sue itself. Besides this, the earlier discussion has shown that not all existing subsidiary proprietors may be original purchasers who had entered into the standard agreement with the developer. Hence the court’s interpretation that the management corporation may represent just some subsidiary proprietors in proceedings against any persons with respect to common property. Fruits of successful litigation against developer Consider the following hypothetical situation where, say, only two out of 50 original subsidiary proprietors wish to pursue a contractual claim against the developer for common property defects. Whilst section 116 of the LT(S)A enables a representative action on behalf of just the two subsidiary proprietors, and the management corporation bears the cost of the litigation, Singapore’s strata legislation does not spell out the way in which the fruits of the litigation are to be distributed. In practice, where the contractual claim is successful, the damages awarded are directed into the maintenance fund. The litigation costs would be paid out of the maintenance fund as the suit was in relation to common property. However, as stated earlier, the quantum of damages awarded to the management corporation would be proportionately abated in relation to the share value represented. This may render imprudent the decision by the management corporation to litigate. It must also be noted that there is no legal requirement that the damages be utilised by the management corporation to repair common property defects, which triggered the suit in the first place. Having dealt with the matter of the management corporation’s right to pursue contractual and tortious actions on behalf of the subsidiary proprietors in a representative capacity, the court in Seasons Park proceeded to consider whether the developer could be held liable for the defects in the common property. The independent contractor defence Whilst an employer is generally liable for the torts of his employees, he is not usually responsible for those of an independent contractor. An independent contractor may be defined as any person, other than a servant, who is employed to do work. When considering the concepts of vicarious liability and independent contractors, it is also

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necessary to consider the concept of delegable and non-delegable duties (Christudason and Netto, 2000). Delegable and non-delegable duties The distinction between a delegable and non-delegable duty has been expressed, respectively, as a duty to take care, and a duty to see that care is taken[15]. The normal duty imposed by the law of negligence is no higher than one of reasonable care. If an act or process in question is one which involves technical skill or knowledge, then the ordinary man can discharge his duty by entrusting its performance to an apparently competent contractor[16]. However, in some cases the law imposes a duty irrespective of whether or not there is negligence. This is the duty to see that care is taken and the duty is non-delegable. It may not be discharged merely by the appointment of a competent professional. Such a duty would mean that the employer personally owes the duty to the third party. It has been recognised by courts in cases where the employer is under some statutory duty which he cannot delegate; and involving: . the withdrawal of support from neighboring land[17]; . the escape of substances, such as explosives, which have been brought onto the land and which are likely to do damage if they escape: the rule in Rylands v. Fletcher[18]; . operations on the highway which may cause danger to persons using the highway[19]; . non-delegable duties of an employer for the safety of his employees[20]; and . extra-hazardous acts[21]. There seems to be no general or underlying rationale to the exceptions above (McKendrick, 1990). The “independent contractor” defence: the position in other common law jurisdictions In coming to its decision, the Singapore Court of Appeal in Seasons Park reviewed and considered cases from other common law jurisdictions on the issues of the independent contractor defence and delegability. These included Mount Albert Borough Council v. Johnson (Mount Albert)[22], Batty v. Metropolitan Property Realisations Ltd[23], Anglia Commercial Properties Ltd v. South Bedfordshire District Council[24] and D&FEstates v. Church Commissioners for England (D&F Estates)[25]. Mount Albert involved defective foundations in a block of flats. The New Zealand Court of Appeal held that the developer owed a duty of care to all purchasers of the flats. Liability could not be avoided by delegation of performance by the developer to the builder, an independent contractor. Although it was primarily the builder’s task to see that the foundations were adequate, it was held that the developer was negligent for itself having failed to ensure that the foundations were adequate. In the Court of Appeal in Victoria however, in Zumpano and Anor v. Montagnese and Anor (Zumpano)[26] Brooking JA cast doubts on the decision in Mount Albert. He said that in the absence of “some special element such as would found the special non-delegable duty”, he would hesitate to adopt the approach in Mount Albert[27]. Zumpano involved works carried out by a licensed plumber engaged by the builders as an independent contractor. The Court decided that the defendant builders (who had

built a house as their family home) were not subject to a non-delegable duty of care to subsequent purchasers in respect of these works. It was also decided in Zumpano that, in the absence of any evidence of negligence by the builders themselves in failing to check the independent contractor plumber’s work, the builders could not be liable under the Bryan v. Maloney[28] (Bryan) principle[29] for the negligence of their independent contractor. Brooking JA continued that “there existed no element in their relationship with the purchaser that made it appropriate to impose on them a special responsibility or duty to ensure that the plumber took reasonable care in the performance of the plumbing work”. The material difference in facts between Zumpano and Bryan appears to be that “the expressed rationale of the Bryan majority had depended on the original builder having contracted with (and so having been relied upon by) the first owner”. However, in Zumpano, the plaintiff builders were professional builders building the house for their own occupation – it had even been advertised as a “builder’s own home” (Wallace, 1997). It may be inferred from these decisions that where a builder erects a house “otherwise than under a contract” (Wallace, 1997) he cannot be expected to assume overall responsibility for the actions of an independent contractor. In D&F Estates it had been clearly stated[30] that an employer who engaged a contractor to undertake building work would not prima facie be liable for a dangerous defect in the work caused by the negligence of the contractor. The House of Lords had held there that the builders were not liable for the negligence of their sub-contractor in carrying out plastering works because the builders’ only duty was to employ a competent plasterer, which they had done. The collection of cases reviewed above illustrates the differing stance in various common law jurisdictions to the independent contractor defence. The “independent contractor” defence: the Seasons Park decision The management corporation in Seasons Park had pleaded, in relation to the defects in the strata development’s common property, that the developer: . had not fulfilled the duty of building the strata development in a “good and workmanlike manner”; and . that this duty was not a delegable one. The Singapore Court of Appeal addressed these issues as follows. It made reference[31] to the Building Control Act[32] (the Act), which regulates the design, supervision and construction of buildings in Singapore. These regulations stipulate, inter alia, that the building plans must be prepared by a qualified person – an architect or a professional engineer – who has the duty to ensure that the design complies with the prescribed standards, and that the plans must be approved before building works may proceed. The Act also contemplates the appointment of a builder by the owner to carry out the construction and that a qualified person should supervise the builder’s work. From this, the Court inferred that the Act did not contemplate that the design and erection of the building in a development would be undertaken by the owner or the developer personally. The Court went so far as to state that those provisions implicitly recognize that the owner/the developer is not competent to undertake the tasks of designing the plans and supervising the construction. It added

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that the Act recognizes that all those matters should be undertaken by competent professionals and contractors appointed by the developer. The Court also reiterated the general principle that an employer is not vicariously liable for the negligence of an independent contractor. However, this rule would not apply if the employer had failed to exercise proper care in appointing an independent contactor – in such a case, liability would obtain because of the employer’s own lack of care. In considering the various exceptions to the general rule, the Court referred, in particular, to the situation where acts commissioned by an employer were extra-hazardous[33]. It is significant to note that in this regard, the court affirmed the ruling in Hughes v. Percival[34]. Here it was stated that in order to impose liability on the employer, it was not sufficient that the work delegated to the independent contractor was merely of a type that could cause harm unless care was taken. In other words, something more than the possibility of the occurrence of harm was needed. The key question would be whether the acts commissioned by the employer could be considered as “extra-hazardous”. Mount Albert had been heavily relied upon by the appellant management corporation in Seasons Park to support its stand that the developer should bear the responsibility for the defects in the common property. However, the Court distinguished the facts before it from Mount Albert. It pointed out that the decision in Mount Albert to impose liability on the developer for the negligence of the builder was due to the particular fact situation, and “against the context of a rather lax legal framework”[35]. This finding was attributed to the following facts: . that that the developer had signed the building permit both as owner and builder; . that the construction work was carried out by a partnership (F&H) which had worked solely for the developer and their relationship had been “close” and “somewhat informal” in that there was no written contract between them; and . that neither the developer nor F & H had engaged any professional consultants to advise on the various technical requirements. In the circumstances, the court in Mount Albert identified the developer very much with F&H. This was not the situation in Seasons Park. The Court of Appeal pointed out[36] that here the developer had engaged competent professional consultants to design and supervise the development/building contract. Such engagement is also very much a requirement specified in the Building Control Act. Reference was also made to the observation of the court in Anglia Commercial Properties Ltd v. South Bedfordshire District Council[37] that no English case had gone so far as Mount Albert to hold a building owner liable for the negligence of an independent builder. The court there had differentiated between a building owner, and an owner-builder. The former was not under any non-delegable or absolute duty to comply with Building Regulations and perhaps not under any statutory duty at all[38]. After considering all the above, the Court of Appeal in Seasons Park found it appropriate to allow the developer to rely on the independent contractor defence. However the court was also quick to add that in order for the developer to avail itself of this defence, it had to show that it had exercised reasonable care and skill in engaging the independent contractor for the development. In this regard, it certainly worked in

the developer’s favour that it had engaged a contractor within the “G8-Category”[39]. This was the best category for contractors in the Singapore building industry. It can be inferred from this that within the factual matrix of Seasons Park, the court viewed the developer as more of a “building owner” rather than as an “owner- builder”.

Defects in common property

Summary and conclusion There is evidence in Singapore of an increasing number of disputes between management corporations and developers pertaining to defects in the common property of strata developments. This paper has referred to several such cases in Singapore which culminated in litigation. In particular, the paper has focused on issues raised in the recent Singapore Court of Appeal decision in Seasons Park. The case has significant legal implications for a wide range of issues pertaining to defects in the common property of strata developments. These include: . the management corporation’s right to represent subsidiary proprietors in actions in contract and tort; and . the availability of the “independent contractor” defence for the developer facing a negligence action by a management corporation.

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The following important findings are highlighted. Representative action by management corporation As a matter of procedural convenience, the management corporation may commence a representative action on behalf of all subsidiary proprietors in a development vis-a`-vis third parties. Where a management corporation sues the developer in contract, the following must be borne in mind: (1) arising from the doctrine of privity of contract, the management corporation may not represent subsidiary proprietors who themselves do not have a contract with the developer; (2) where subsidiary proprietors do have a contract with the developer, it is a prerequisite that they, that is, the “original” purchasers, must have specifically authorized the management corporation to sue the developer; (3) such authorization should take place through voting and by a resolution passed at a general meeting; (4) the names and particulars of such purchasers must be included in the pleadings submitted at trial so as to make explicit which original purchaser(s) had made the authorization; and (5) damages awarded to the management corporation would be the proportion of the collective share value of such original purchasers who supported the action in contract through the management corporation, against the total share value of all the units in the development. While the Court in Seasons Park acknowledged that as a result of the principle of privity of contract, points (1) and (5) above could result in some “abnormalities”[40], the Court declined to intervene, preferring to leave this task to the Legislature[41].

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With regard to subsidiary proprietors who are subsequent purchasers, their position against the developer with regard to defects in common property is as follows. Subsequent purchasers do not have to rely on any specific relationship with the developer. They can avail themselves of their rights in tort as (inter alia) they all have a share of the common property as tenants-in-common and can be represented in an action against the developer by their management corporation.

316 The “independent contractor” defence The decision in Seasons Park on this issue will come as a welcome relief to the developer: it reiterated the general principle of law that an employer is not vicariously liable for the negligence of an independent contractor. In the context of Seasons Park, the developer was absolved from liability on the basis that it had discharged its responsibility by engaging competent professionals. The Court emphasized that the prerequisite for reliance on the independent contractor defence was that the developer must have exercised reasonable care and skill in engaging the independent contractor for the development. However, it is important to note that the independent contractor defence is not available to the developer under contract. In other words, where there is faulty design or inadequate supervision by the professionals appointed by the developer, the developer cannot plead (to purchasers who purchased units directly from the developer) that it had discharged its duty just because it appointed competent professionals. The developer’s contractual duty to the original purchasers to deliver the units according to specifications subsists. The developer may nevertheless still proceed against the architect/engineer or builder (in contract) for either poor professional services or poor workmanship. Notes 1. Building Maintenance and Strata Management Act no. 47 of 2004. 2. Cap 158, 1999 Revised Edition. 3. Based on the number of construction-related disputes on defects brought to the Singapore Mediation Centre. While for reasons of confidentiality it is not possible to provide details of these, the cases which have actually culminated in litigation are dealt with in this paper. 4. Section 116 of the LTSA as interpreted in RSP Architects Planners & Engineers v. Ocean Front Pte Ltd and another appeal [1996] 1 SLR 113. 5. Barring a novation agreement with the developer, or application of the Contracts (Rights of third Parties) Act Cap 53B, 2002 Rev. Ed. 6. [2005] SGCA 16. 7. Repealed by the BMSMA. The equivalent section is s 85(1) of the BMSMA. 8. Section 62(1) of the BMSMA. 9. [2002] 2 SLR 807. 10. These include MCST Plan No. 1279 v. Khong Guan Realty Pte Ltd [1995] 1 SLR 593 (Khong Guan), MCST Plan No. 1272 v. Ocean Front Pte Ltd (Ssangyong Engineering & Construction Co Ltd & Ors, third parties [1995] 1 SLR 751, RSP Architects Planners & Engineers v. Ocean Front Pte Ltd 1996] 1 SLR 113 (Ocean Front). 11. [1996] 1 SLR 113.

12. As prescribed by the Housing Developers Rules (Cap 130, 1999 Rev Ed) R1 rr 12(1) and (2), Form E. 13. This is required where the development comprises more than four units and falls within the ambit of the Housing Developers (Control and Licensing) Act Cap 130. 14. [2005] SGCA 160. 15. The Pass of Ballater [1942] P 112, 117 per Langton J. 16. Stennett v. Hancock [1939] 2 All ER 578. 17. Bower v. Peate (1876) 1 QBD 321. 18. (1868) LR HL 330. 19. Salsbury v. Woodland [1970] 1 QB 324. 20. Wilsons & Clyde Coal Company v. English [1938] AC 57. 21. Wilsons & Clyde Coal Company v. English [1938] AC 57. “Extra-hazardous acts” have been described as acts commissioned by an employer that are so hazardous in their nature that the law had thought it proper to impose a direct obligation on the employer to see that care was taken. 22. [1979] 2 NZLR 234. 23. [1978] QB 554. 24. (1984) 2 Con LR 99. 25. (1989) 1 AC 177. 26. (1997) 2 V.R. 525. 27. Ibid., at p. 544. 28. Bryan v. Maloney 128 A.L.R. 164. 29. Ibid. Declining to follow D&F Estates and Murphy v. Brentwood District Council [1991] 1 AC 398, the High Court of Australia held a builder liable to a later purchaser for what was described as the reduced value of a building (that is, pure economic loss) caused by defective foundations. 30. D&F Estates, op. cit., per Lord Bridge of Harwich at p. 209. 31. See MCST Plan No. 2297 v. Seasons Park Ltd [2005] SGCA 16 at para. 41. 32. Cap 29, 1999 Rev. Ed. 33. Salsbury v. Woodland [1970] 1 QB 324. The Court also made reference to various other exceptions to the general rule including the UK Occupiers’ Liability Act 1957 c 31. See also exceptions listed on pp. 18-19. 34. (1883) 3 App Cas 443 at 447 per Lord Blackburn. 35. MCST Plan No. 2297 v. Seasons Park Ltd [2005] SGCA 16 at para. 46. 36. Ibid., at para. 48. 37. (1984) 2 Con LR 99. 38. Ibid., at p. 105. 39. This category is no longer in existence and has been replaced by the “A1” category. Categorization of contractors by the Building and Construction Authority of Singapore is based on various factors including their minimum paid up share capital, and the contractor having obtained certifications such as ISO 9000:2000, ISO 14000 and OHSAS 18000/ SS506 Part1. See further at www.bca.gov.sg/ContractorsRegistry/others/Registration_CW.doc 40. Thus for example, the amount recovered may be grossly inadequate to effect the repairs. Alternatively, the developer who retained some units could, in its capacity as subsidiary

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proprietor, oppose the proposed action (against the developer). In such a case, the developer could stand to gain even though it has taken a contrary position. See Seasons Park, at para. 31. 41. Statutory warranties that ensure for the benefit of owners and successors in title are implied in contracts for residential building work in New South Wales, South Australia, Tasmania and the Australian Capital Territory. There exist similar statutory insurance or guarantee schemes for residential building work in all states and the Australian Capital Territory: per McHugh J in Woolcock Street Investments Pty Ltd v. CDG Pty Ltd (formerly Cardno & Davies Australia Pty Ltd) and Another 205 A.L.R. 522 at note 308. References Christudason, A. (2004), “Common property in strata titled developments in Singapore – common misconceptions”, Journal of Property Management, Vol. 22 No. 1, pp. 14-28. Christudason, A. and Netto, A.M. (2000), “Delegable and non-delegable duties of participants in the construction process”, Construction Law Journal, Vol. 16 No. 2, pp. 88-101. Leong, M.Y. (2005), “Representative action in contract against developers for defects in common property”, unpublished dissertation, Department of Real Estate, National University of Singapore, Singapore. McKendrick, E. (1990), “Vicarious liability and independent contractors: a re-examination”, Modern Law Review, Vol. 53, p. 770. Wallace, I.N. (1997), “The Murphy saga in Australia: Bryan in difficulties?”, Law Quarterly Review, Vol. 113, p. 355. Corresponding author Alice Christudason can be contacted at: [email protected]

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Problems in enforcing Dutch building regulations

Dutch building regulations

Jeroen van der Heijden, Henk Visscher and Frits Meijer OTB Research Institute for Housing, Urban and Mobility Studies, Delft University of Technology, Delft, The Netherlands

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Abstract Purpose – The paper seeks to define the nature of the policy problems in Dutch building control. Design/methodology/approach – The authors use Dunn’s four-phase methodology for public policy analysis, consisting of problem sensing, problem search, problem definition, and problem specification. Both a literature review and a field study into the operation of local building control authorities were undertaken. The field study incorporates characteristics of a survey, with methodology developed by Fowler. Findings – Dutch building control legislation has been subject to many changes over the 100 years or so that it has been in force as it has responded to society’s changing priorities. Throughout this period building regulation has become more detailed and more uniform across the country. Nevertheless, almost no legal changes have been made to the enforcement system. Responsibility for building control still lies with the municipalities and implementation is still not established by national legislation or policy document. Ongoing attempts to deregulate and standardise the legislative framework should therefore not stop at changing the regulations. Changes in the supervision system might offer an alternative route to improving the quality of the (technical) building control and clarifying the tasks and responsibilities of building control staff. Research limitations/implications – The analysis focuses on problems in building control and does not consider design and construction problems. Practical implications – The field study contains important lessons for building control practitioners and policymakers regarding current deficiencies in the implementation of building control legislation. Originality/value – The paper provides a model for the analysis, and comparative study, of building control systems in other jurisdictions. Keywords Technical regulations, Construction industry, The Netherlands Paper type Research paper

Introduction – problem sensing A number of construction-related incidents at the beginning of the twenty-first century, some of them fatal, sent local building control to the top of the Dutch political and public agenda. Investigations into these incidents revealed that various municipalities were consistently neglecting to perform adequate building checks, that there were shortcomings in the issue of building permits, and that the allocation of responsibilities between the administrative and building control authorities in the municipalities was not sufficiently well defined (Oosting Commission, 2001; Alders Commission, 2001; Ministry of the Interior/Ministerie van Binnenlandse Zaken en Koninkrijksrelaties, 2002; Cachet, 2001; Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, 2002a, b; 2003a, b; 2004; Gemengde Commissie Gevaarlijke stoffen/Risicobeleid, 2005; Onderzoeksraad voor de Veiligheid, 2006). The reports concluded that the government should play a stronger role in policing the regulations and that a clearer distinction was needed in the task allocation. Also, many reports

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stated that the Dutch system of building regulations had become too complex and that the problems might be solved by deregulation. In the last two decades of the twentieth century, the Dutch government’s view on building policy was reshaped by deregulation as part of a mission to enhance freedom (including freedom of design), accord equal legal status and protection to all citizens, and ease the burden on industry and administrative bodies. Various legislative and regulatory amendments were passed to achieve these aims, but the desired effects were only partly realised. Many players in the building sector are critical of the complexity of the building regulations. Other European countries have reshaped their building regulatory framework via deregulation as well (Meijer and Visscher, 2006). However, one major difference between the Dutch system and other European systems is the monopolistic status of local building control authorities. In the Dutch system these have traditionally been, and still are, solely responsible for controlling and checking building plans and for granting permits, whereas in other European countries a shift has occurred towards different systems involving various players (Meijer and Visscher, 2006). That said, in the Dutch context initiatives have been underway for some time now to involve private players in the building control process (see, for example, Visscher et al., 2003). In a broad sense, public policy can be defined as the pursuit of certain goals with certain means within a certain timescale (Hoogerwerf, 2003, p. 20). Regulation is one of the tools at the disposal of a government. Regulation can be defined as the deployment of legal instruments by public players for the benefit of public and private interests (den Hertog, 2003, p. 1). In regulatory literature a distinction is often drawn between economic and social regulation (e.g. den Hertog, 2003; Rasmusen, 2005). Economic regulation concentrates primarily on market regulation, market structures and the individual behaviour of companies, while social regulation concentrates primarily on the collective behaviour of companies, usually with a special focus on public health, public safety and the environment. Social regulation is generally justified by referring to externalities and information asymmetries. Only part of the building regulations can be described in terms of economic regulation. For instance, directives and codes established at European level are primarily intended to facilitate the free trade of building products throughout the member states. The social aspects are the most important component of building regulations. Building and planning regulations have been developed to ensure that buildings meet basic quality standards. Safety and health have always been the core elements of the regulations in The Netherlands, but also in other European countries (Meijer and Visscher, 2006). Methodology This study focuses on the policy problems in Dutch building control and questions whether these can be solved by deregulation alone. Following on from Dunn (2003), it is believed that problem structuring is an important step towards finding the right solution to the perceived problem. The aim of this study is therefore to structure the policy problems in Dutch building control. Dunn (2003) splits problem structuring into four independent phases: (1) problem sensing; (2) problem search;

(3) problem definition; and (4) problem specification. This study will follow these phases. As stated in the start of this introduction, the sensed problem is on the level of local building control authorities, which do not appear to be adequately performing their legal tasks. However, the construction-related incidents point to more than shortcomings in local building control alone. Somewhere in the design and/or construction process errors seem to have been made which may eventually have caused these incidents. It is therefore plausible that, from the perspective of social regulation, a framework is still needed for the regulation and control of buildings. The building sector itself seems unable to guarantee a safe public environment. A different attitude to the attainment of policy goals in this construction market – such as integrated quality assurance – might also influence and redefine the government’s role. As stated above, this is not the subject of this study, but it could be another important step in tackling some of the problems. The problem search phase will concentrate on the building regulatory framework. A closer look at developments in building regulation and enforcement might provide insight into the (in)ability of the local building control to enforce statutory building regulations. The study will then focus on the problem definition and problem specification phases. The problem definition phase is based on a literature review that provides insight into the substantive policy problem. The problem specification phase is based on a field study that provides insight into the formal policy problem(s). Finally, conclusions are drawn on policy problems in Dutch building control and possible solutions, such as the reshaping of the supervision system. Ideas for further research, such as a comparison of international building control systems, will also be put forward. Problem search: changing regulations, tied enforcement The Dutch government’s first formal involvement in building and housing stemmed from the need to improve public health. The result was the Housing Act of 1901, which placed the responsibility for public housing policy squarely with the government and the responsibility for implementation with the local municipalities. This legislation gave the municipalities the freedom to draw up their own building and housing regulations, and to introduce their own control and inspection measures. Accordingly, a situation evolved in which building regulations in one municipality could differ radically from building regulations in another. Interestingly, no legal obligations were established with respect to building control (de Vreeze, 1993). This “solution” was chosen as a happy medium between municipal autonomy and rule from above (Boogman et al., 1988, p. 340). It was not until the Act was amended in 1921 that building control became obligatory at municipal level; the municipalities, however, were free to choose the means of implementation. The Second World War was an important factor in the run-up to government involvement in the building sector. Building plans had been tightly centralised during the war to optimise the success of the reconstruction efforts (de Vreeze, 1993). Delays occurred in projects that were set up with the specific aim of easing the urgent housing shortage in the post-war years. The government decided to tackle the housing shortage by introducing amendments to make the building legislation more uniform and

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nationally applicable. All parties in the building sector needed better legal protection. It was to this end that the Housing Act was drastically amended in 1961, but the municipalities still had considerable freedom. In 1965 the Association of Netherlands Municipalities produced its model building by-law with the aim of establishing a nationally acceptable minimum standard for housing and other buildings. The specifications were expressed as far as possible in functional terms; specific requirements and descriptions from previous models were avoided. The model was not mandatory, but most municipalities adopted it as a building by-law. As the model allowed the municipalities to grant exemption from requirements and to add further requirements of their own, each municipality was more or less free to draw up its own local (individual) building by-law. This is exactly what happened. But such actions seemed to fly in the face of the original intention of the model, i.e. to introduce uniformity into the municipal building by-laws, thereby improving (local) legal protection for parties in the building trade. The form and application of the building regulations were obstructing rationalisation, renewal and (cost) optimisation in the building chain (Scholten, 2001). The government tried to end this situation by focusing, from the 1980s onwards, on standardising and deregulating the building regulatory framework. Superfluous rules and regulations had to be dropped – particularly on the technical requirements of housing – and the building regulations themselves had to become more uniform. Nevertheless, almost no judgements were made on the enforcement of these regulations. In 1983 a so-called “Deregulation Action Plan” submitted to the House of Representatives more or less marked the start of deregulation in the building sector. It was hoped that deregulation would ultimately increase freedom, improve legal security, stimulate equality of status for members of the public, and ease the burden on businesses and government (Tweede Kamer der Staten Generaal, 1983). The action plan also described how the government’s proposals for improvement could be incorporated in a Building Decree (van Overveld, 2003, p. 11). Under an Order in Council this Building Decree would set out all the technical requirements for existing and new constructions and thus automatically lead to unity and transparency in the building regulations (Visscher, 2000, p. 32). This Building Decree (1992) set out the minimum standards that a plan had to meet in order to get a building permit. It also set minimum standards for existing constructions, as far as possible in the form of performance requirements. It further contained functional descriptions, which indicated the purpose of the requirements, and a threshold value which indicated the required performance level and referred to a calculation method based on nationally accepted norms and standards. Finally, buildings were divided into three categories: (1) permit-free; (2) light-permit obligatory; and (3) normal-permit obligatory. At enforcement level statutory limits were set for the control of building permit applications. Despite all of this, the Building Decree of 1992 only partially reflected the goals in the policy plan to deregulate the building sector. An evaluation of the Building Decree by the Ministry of Housing, Spatial Planning & the Environment (Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, 1996) revealed that the

building sector favoured a systematic approach and endorsed the principle of performance levels. However, it also emerged that the envisaged simplicity was being obstructed by a complex reference system of norms and ministerial arrangements and by the legal wording of the regulations. Local building control departments also responded to the changes (Meijer et al., 1995): the statutory limits and the division of the buildings into three categories were experienced as having an influence on processing time and on pre-application consultancy. A need for further deregulation coupled with reports about the incomprehensibility of the building regulations and incompatibility with other legislation prompted a revision of the Housing Act. The new version came into effect along with the (re-worked) Building Decree 2003 on 1 January 2003 (van Overveld, 2003). It was hoped that the Housing Act and the underlying Order in Council would lead to more customer-friendly and comprehensible building regulations (Damen, 2003). Building Decree 2003 differed in form and content from Building Decree 1992. One significant innovation was the introduction of “table legislation”, i.e. sets of tables determining the sub-sections which apply to parts of a building with one and the same intended use (van Overveld, 2003, pp. 17ff). There was no question of actual deregulation via the amendments: Building Decree 2003 comprises more sections (regulations) than Building Decree 1992 and pursues even more goals: health, safety, usefulness, energy saving and environmental conservation (although the latter has not yet been incorporated in regulations). In summary, it may be stated that during the 100 years or so that the Housing Act has been in force, the building regulatory framework has been changed to suit topical issues and goals. However, as building regulations became more detailed and more uniform, almost no legal changes were made to the enforcement system: the responsibility for building control still lies with the municipalities and implementation is still to be established in clear rules. According to Section 100 of the Housing Act, a municipality only has to make provision for a local building control authority, it does not necessarily have to establish one. Section 100 was supposed to pave the way for departmental cooperation amongst different municipalities, or the incorporation of private parties in the system. Yet, almost all municipalities still have their own building control department, whose size depends on the size of the municipality. Furthermore, these local building control departments are scarcely responsible, if at all, for carrying out their enforcement tasks (Drion and Schueler, 2005). Remarkably, in 2004, the Minister of Housing, Spatial Planning & the Environment stated that building control by these departments cannot be accorded absolute significance in the sense that an intended building plan complies totally with all the regulations. The building permit application only has to prove that, on the basis of the provided documents, compliance is plausible (Tweede Kamer der Staten Generaal, 2004, p. 10). Problem definition: building control does not meet legal criteria Under the present Housing Act, municipalities are required to check permit applications for new developments against the Building Decree, issue building permits, and supervise the construction work. The Dutch Ministry of Housing, Spatial Planning & the Environment (VROM) is monitoring the performance of these tasks. Within a period of four years, starting from 2003, a special ministerial inspectorate has investigated and reported the performance of Dutch municipalities. The reports, which

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are freely accessible through the internet, provide insight into the quality of local building control. Two overview reports give an impression of the situation in the period 2003-2005 (Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, 2005, 2006). They show that, in this period, only 12-16 per cent of the municipalities adequately supervised building permit applications and only 7-11 per cent adequately supervised the construction work for the building permit. Furthermore, these reports revealed that information that is needed for evaluating various requirements of the Building Decree was missing from 45 per cent of new-building files for 2003 and from 27 per cent for 2004. In addition, the Building Decree was (partially) breached by approximately 8 per cent of the files for 2003 and 17 per cent of the files for 2004. Finally, the reports state that in 2003 and 2004 no (visible) checks were performed for the various elements in the Building Decree in 69 per cent and 47 per cent, respectively, of permit applications. Large discrepancies were also found in the calibre of the checks performed by the different municipalities. In short, many local building control authorities were not fulfilling their building control responsibilities on a level commensurate with the legal criteria. No clear view was offered of the underlying causes although the overview reports do carefully state that understaffing and lack of resources led local building control authorities to make certain choices that make full control impossible. It seems, however, that the local government is not always consulted on these choices as responsibilities are not always clearly established. Lack of expert knowledge and disagreement with the building regulations are other reasons why enforcement is not always adequate. The inspectorate reports indicate that almost 65 per cent of all Dutch municipalities – especially those with fewer than 30,000 inhabitants – seem to suffer from both qualitative and quantitative understaffing. The understaffing seems to be in line with previous notions: in 2003 the municipalities had made known through the Netherlands Association of Building Inspectorates that they were unable to fully monitor adherence to the building regulations: “100% supervision is beyond our capability” (Vereniging Bouw en Woningtoezicht Nederland, 2003). Problem specification: daily practice The various incident reports were unable to clearly explain why local building control authorities seem unable to perform building control on a level that meets the legal criteria. The reports by the ministerial inspectorate do not identify specific causes either, but view the problem in more general terms. To identify the possible causes a field study was carried out on the daily practices of local building control. Twenty-seven municipalities participated in the study, which consisted of a series of semi-structured open interviews and a questionnaire focusing on the time spent on different control tasks, which was sent to the municipalities before the actual interviews. The interviewees consisted of local building control managers and inspectors (van der Heijden et al., 2006). The field study had the characteristics of a survey, with methodology by Fowler (2003). The field study enabled insight to be gained into the actual building control process. Understaffing was said to be the principal problem in monitoring compliance. Both the workload at local building control departments and the nature of work were said to be key problems. The workload at most local building control departments was said to be too high for the present staff, but the content of the work also seems to require a wide

range of qualified specialists who are able to perform building control in a such way that the legal criteria are met. As building control departments, especially in smaller cities, only have a limited personnel budget, generalists are preferred to specialists. The different local building control authorities seem to deal with building control in different ways. There is no “national” standard, but some assumptions on Dutch building control can still be made. First of all, almost all the interviewees stated that safety and health requirements are the main focus of building control in their municipality. The Building Decree, which includes health, safety, usefulness and energy-saving requirements does not appear to be pursued widely. It emerged that applications for frequent-building activities (defined as activities with maximum building costs of e50,000, mostly house adjustments or improvements – 80 per cent of all applications concern frequent-building activities) are checked in basic terms. Second, the departments seem to work with an informal prioritisation in relation to the expected risks of a building plan, which is roughly based on the building costs. Third, as the interviews progressed, it became clear that building control employees treat different applicants in different ways. There is a clear distinction between the way non-professionals and professionals (e.g. housing associations, architects, advisors and building contractors) in the building sector are treated. Non-professionals seem to get more help, more instruction and more advice prior to and during the building control process than professionals. Professionals are expected to know their way around and manage their own difficulties. “That’s what they [the professionals] get paid for” seems to be the general justification for the difference in attitude to the different applicants. Also, the employees of building control departments treat the professionals they know differently from the professionals they do not know. The work – both design and construction – of professionals with a good reputation at the department seems to be checked out far less thoroughly than the work of professionals with a poor reputation at the department. Again, a risk estimation seems to determine the level of enforcement. This risk estimation is said to be based upon the reputation that a professional has built up in the course of his dealings with the building control department. Like the risk estimation based on building costs, the risk estimation based on reputation is not formal policy in the building control departments. A final factor is the way municipal building control departments value the possibility of consultancy prior to application. Pre-application consultancy apparently enables the departments to steer conceptual plans, thereby sparing the applicant non-compliance problems and giving him more certainty about the outcome of the control process (the applicant is told where the plan does and does not comply with the regulations and where it should be altered). Another argument in favour of pre-application consultancy is that it shortens the processing time. None of the interviewed departments actually recorded the processing time of pre-application consultancy, but some interviewees did say that it could mount up considerably. Though pre-application consultancy was valued by the different interviewees, it should be noted that it is not formal Housing Act policy. Conclusion At the turn of the twenty-first century the building sector became the focus of political and public attention after a series of construction-related incidents. Diverse incident-driven reports concluded that various municipalities were consistently neglecting to perform adequate checks, that there were shortcomings in the issue of

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building permits, and that the responsibilities of the administration and building control departments in the municipalities were not clearly enough defined. These reports also concluded that the government should play a stronger role in policing the regulations and that a clearer distinction was needed in the task allocation. Finally, some reports concluded that the Dutch system of building regulations had become too complex and that deregulation was needed. However, another conclusion that can be drawn from the incidents is that an actual need exists for a building regulatory framework: the construction sector itself seems unable to guarantee a safe public environment. As in many other European countries, the Dutch building regulatory framework has a long history: throughout the 100 years or so that the Housing Act has been in force, it has been subject to changes to suit topical issues and goals. The goals of the original Housing Act in 1901 were health and safety. As the building regulations developed further in the twentieth century the list of goals grew. It now includes health, safety, usefulness, energy-saving and environmental conservation (though the latter has not yet been incorporated in the regulations). From the 1980s onwards, developments in the building regulatory framework were subject to ideas of deregulation and uniformity. Nevertheless, the present-day Building Decree has more sections and regulations and pursues even more goals than its predecessor. However, as building regulation became more detailed and more uniform, almost no legal changes were made to the enforcement system: responsibility for building control still lies with the municipalities and implementation is still not established in clear rules in the Housing Act or any other national policy document. According to the Housing Act, a municipality only has to make provision for a local building control authority, it does not necessarily have to establish one. Yet, almost all municipalities still have their own building control department. Furthermore, these local building control departments are scarcely responsible, if at all, for carrying out their enforcement tasks. In 2004 even the Minister of Housing, Spatial Planning & the Environment stated that building control by these departments cannot be accorded absolute significance. Reports by a special ministerial inspectorate indicated that many local building control authorities do not perform building control on a level that meets the legal requirements. The inspectorate municipal reports offered no clear view on the underlying causes, although the inspectorate overview reports carefully quoted understaffing, lack of funding, lack of expert knowledge and disagreement on building regulations as contributory factors. To gain an understanding of the possible origins of the problem a field study was carried out on the daily practices of Dutch local building control authorities. It emerged from this study that understaffing, both quantitative and qualitative, was indeed regarded as one of the major causes. Moreover, as the size of a municipality roughly determines the size of its local building control department, understaffing was especially noticeable in municipalities with fewer than 30,000 inhabitants – roughly 65 per cent of all Dutch municipalities. Other causes might lie in the fact that consultancy in municipal building control departments is entrusted mainly to non-professionals and that non-formal prioritisation is accorded amongst building plans and building professionals. A final cause might be the historically developed municipal autonomy from the national government and the inability of the local building control to keep up with the many changes in the building control framework over the years. The field study revealed that municipalities still seem to

focus mostly on the original goals of the Housing Act and therefore do not cover many of the amendments made throughout the years. A changing regulatory framework seems to have implications for enforcement; yet, throughout the approximately 100 years that the Housing Act has been in force, local building control has scarcely changed. It may be concluded that the efforts to deregulate and standardise the framework, which have been underway since the 1980s with a view to fewer administrative and management tasks, better building control and clearly defined tasks and responsibilities, should not stop short at scrapping or changing the rules. The reshaping of the supervision system might offer an alternative route to improving the quality of the (technical) building control and clarifying the tasks and responsibilities. Given the importance of a lower administrative burden as a policy goal, assigning more staff to local building control departments does not seem a feasible option. The form and content of this reshape – for example, more standardisation/uniformity in local building control, involving private parties to tackle problems concerning the specialist nature of the work, or the withdrawal of local government from the building control system in favour of private parties – will be the subject of further research, which will include an analysis and comparison of international systems of building control.

References Alders Commission (2001), Eindrapport Cafe´brand Nieuwjaarsnacht, Alders Commission, Den Haag. Boogman, J.C. et al. (Eds) (1988), Geschiedenis van het moderne Nederland: politieke, economische en sociale ontwikkelingen, De Haan, Houten. Cachet, L. (2001), “Bestuurscultuur in Volendam”, Openbaar bestuur, Vol. 11, pp. 2-6. Damen (2003), Monitoring ervaringen bouwvoorschriften. Een onderzoek naar de eerste ervaringen in de praktijk met de per 1-1-2003 gewijzigde bouwvoorschriften, Damen Bouwcentrum, Delft. de Vreeze, N. (1993), Woningbouw, inspiratie & ambities. Kwalitatieve grondslagen van de sociale woningbouw in Nederland, Woningraad, Almere. den Hertog, J.A. (2003), Public and Private Interest in Regulation. Essays in the Law & Economics of Regulation, Utrecht University, Utrecht. Drion, P.J.M. and Schueler, B.J. (2005), Privaat- en publiekrechterlijke aansprakelijkheid voor gebrekkige bouwwerken, Preadviezen voor de Vereniging voor Bouwrecht nr. 33, WEKA Uitgeverij BV, Amsterdam. Dunn, W.N. (2003), Public Policy Analysis: An Introduction, 3rd ed., Prentice-Hall, Englewood Cliffs, NJ. Fowler, F.J. (2003), Survey Research Methods, 3rd ed., Sage Publications, London. Gemengde Commissie Gevaarlijke stoffen/Risicobeleid (2005), Rijksbrede Takenanalyse. Gezond verstand in risicoland, Andere Overheid, Den Haag. Hoogerwerf, A. (2003), Overheidsbeleid: een inleiding in de beleidswetenschap, Samson/Tjeenk Willink, Alphen aan den Rijn. Meijer, F. and Visscher, H. (2006), “Deregulation and privatisation of European building-control systems?”, Environment and Planning B: Planning and Design, Vol. 33 No. 4, pp. 491-501.

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Meijer, F., Quist, H.J., Priemus, H., Winter, H.B., Bregman, A.G. and Lubach, D.A. (1995), De nieuwe bouwplanprocedure: ervaringen op lokaal niveau, Bouwmanagement en technische beheer 14, Delftse Universitaire Pers, Delft. Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (1996), Evaluatie herziene Woningwet en Bouwbesluit, Sdu Uitgevers BV, Den Haag.

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Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (2002a), Onderzoek Van der Valk horecavestigingen in Nederland. Eindrapportage, Sdu Uitgevers BV, Den Haag. Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (2002b), Jaarrapportage 2002. Daadkracht in handhaving, Sdu Uitgevers BV, Den Haag. Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (2003a), Instorting van platte daken. Onderzoek, Sdu Uitgevers BV, Den Haag. Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (2003b), Patio Sevilla, onderzoek naar het instorten van balkons, Ceramique blok 29, Sdu Uitgevers BV, Den Haag. Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (2004), Handhaving werkt. Jaarrapportage 2003, VROM-Inspectie, Den Haag. Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (2005), Landelijke rapportage VROM-brede onderzoeken 2003 en 2004, VROM, Den Haag. Ministerie van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer (2006), Landelijke rapportage VROM-brede onderzoeken 2005, VROM-Inspectie, Haarlem. Ministry of the Interior/Ministerie van Binnenlandse Zaken en Koninkrijksrelaties (2002), Veilig geregeld. Een praktijkonderzoek naar tekortkomingen in veiligheidsregelgeving, Sdu Uitgevers BV, Den Haag. Onderzoeksraad voor de Veiligheid (2006), Brand cellencomplex Schiphol-Oost. Eindrapport, OVV, Den Haag. Oosting Commission (2001), Publieksuitgave Eindrapport, Oosting Commission, Enschede/Den Haag. Rasmusen, E.B. (2005), “Economic regulation and social regulation”, American Law & Economics Association Annual Meetings, paper No. 47, bepress, Berkeley, CA. Scholten, N.P.M. (2001), Technische en juridische grondslagen van de technische bouwvoorschriften Woningwet en Bouwbesluit, TNO, Amsterdam. Tweede Kamer der Staten Generaal (1983), Actieprogramma deregulering (woning)bouwvoorschriften, vergaderjaar 1983-1984, 17913, nr. 7, Sdu Uitgevers BV, Den Haag. Tweede Kamer der Staten Generaal (2004), Wijziging van de woningwet (verbetering handhaafbaarheid en handhaving bouwregelgeving), vergaderjaar 2003-2004, 29392, nr. 7, Sdu Uitgevers BV, Den Haag. van der Heijden, J.J., Visscher, H.J. and Meijer, F.M. (2006), “Bouwtoezicht bij veelvoorkomende bouwactiviteiten”, unpublished report, OTB Research Institute, Delft. van Overveld, M. (2003), Bouwbesluit 2003: theorie en praktijk. Beoordelen en verder ontwikkelen van bouwvoorschriften, Sdu Uitgevers BV, Den Haag. Vereniging Bouw en Woningtoezicht Nederland (2003), Nieuwsbrief CKB. Project Collectieve Kwaliteitsnormering Bouwvergunningen, nr. 3, Vereniging Bouw en Woningtoezicht Nederland, Den Haag.

Visscher, H.J. (2000), Bouwtoezicht en kwaliteitszorg, een verkenning van alternatieven voor de technische controles door het gemeentelijk bouwtoezicht, Bouwmanagement en technisch beheer 20, Delft University Press, Delft. Visscher, H.J., Meijer, F.M., Beekman, N., Droste, E. and Langman, N.A. (2003), Certificering op het gebied van bouwregelgeving, Bouwmanagement en technisch beheer 23, Delft University Press, Delft.

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329 Further reading de Ranitz, J. (1946), Het bouw- en woningtoezicht, VNG, Den Haag. Corresponding author Jeroen van der Heijden can be contacted at: [email protected]

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Appropriate real estate laws and policies for sustainable development in Nigeria

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Rashidat Adejoke Oladapo Department of Estate Management, Federal University of Technology, Akure, Nigeria, and

Abiodun Olukayode Olotuah Department of Architecture, Federal University of Technology, Akure, Nigeria Abstract Purpose – The paper seeks to describe the historical development, current status, and operation of real estate law and policy in Nigeria in the context of global requirements for sustainable development. Design/methodology/approach – The paper takes the form of a literature and legislative review. It examines the existing real estate law and policy (Land Use Act No. 6 of 1978) in Nigeria. The relevance of sustainable development to real estate laws and policy is highlighted. A brief comparative study of land issues in Nigeria and some developing nations is also included. Findings – The existing real estate law and policy in Nigeria is inadequate to meet the aspirations for sustainable development. Practical implications – The paper makes recommendations geared towards appropriate real estate laws and policies for sustainable development in Nigeria. Originality/value – The paper contributes to the critique on the existing real estate laws and policies in Nigeria. Based on tenets of sustainable development, it offers useful guidance on future formulation of real estate law and policy, in particular community participation, setting of different time periods, and the targets that each period must realize. Keywords Real estate, Law, Sustainable development, Nigeria Paper type General review

Structural Survey Vol. 25 No. 3/4, 2007 pp. 330-338 q Emerald Group Publishing Limited 0263-080X DOI 10.1108/02630800710772890

1. Introduction Real estate law and policy in Nigeria came of age in 1978, when a codification of land law was promulgated to unite the fragmented basis of land ownership and management. Prior to that time, Nigerian land rights were typically invested in communities, families and some individuals, all under customary land tenure systems in Southern Nigeria. A system similar to the National Land Policy was in operation in Northern Nigeria. Within these two regions of the country government was enacting ordinances and laws to appropriate land for public purpose for social services, amenities and infrastructure. Private land became a subject of commerce to non-natives and other individuals who were not landowners. There were innumerable malpractices in the use and management of land, as well as stiff opposition or reluctance from customary owners for government to acquire land for its array of public purposes. Apart from these, there were uncontrolled speculations of land, denial of access to productive or economic land by investors, a lack of uniformity in laws governing land use and ownership, fragmentation of customary land holding, and perennial litigation.

It therefore became obvious that Nigeria, as an entity, needed a unified National Land Policy. This culminated in the setting up of a panel to review the land tenure system in the country and establish a Land Use and Management Policy for Nigeria. The result was the promulgation of the Land Use Decree No. 6 of 1978. This was entrenched in the 1979 Nigerian constitution representing a National Land Policy for the country. The decree was changed into the Land Use Act Cap 202 (Law of the Federal Republic of Nigeria, LFN) 1990. Since the introduction of the legislation, more than two decades ago, the Act has been a subject of national workshops and conferences (Omotola, 1982), lectures and debates (Nnamani, 1989; Omole, 1999), which have noted the various inconsistencies, ambiguities and contradictions in the Act. Some scholars and practitioners have suggested a review of the entire Act, while others call for its repeal and abrogation. A number of reports have emanated from the manner in which land is administered and managed under the exclusive right of the state governors. In this context the unethical behavior of the land use administrators and committees has drawn particular criticism. At the global and national levels there have been growing interest in the identification and encouragement of development strategies that are environmentally and socially sustainable. Along with this interest has grown the recognition that sustainable development, and the efficient and equitable use of resources on which it is based depends, critically on the ways in which real property rights are defined and distributed (World Bank, 1990). Among the various aims adduced for sustainable development is the need to achieve greater social equity. Social equity and justice have been identified as being central to any meaningful land policy development (Farvacque and McAuslan, 1992; Wood, 1993). 2. Real estate law and policy 2.1 Real estate The term “real estate” is derived from a legal terminology, referred to as estate real, which means interest in physical land including everything on, over, in, under and above land (Barlowe, 1978). Real estate has been defined generally as space delineated by man relative to a fixed geography intended to contain an activity for a specific period of time. Real estate thus signifies land and its improvement. From the legal concept, land is seen as real estate with a bundle of rights in an abject economic value, while economically land is defined as the sum total of the natural and man-made resources over which possessions of the earth surface give control (Barlowe, 1978). From this definition land is considered as one of man’s most important assets, the availability of which is the key issue for all kinds of activities. 2.2 Law and policy Law is the rule that is supported by the power of government and that controls the behaviour of members of a society. Policy, on the other hand, refers to a course of action for dealing with a particular matter or situation, especially as chosen by a political party, government, or business company. Policy as a philosophical concept justifies the actions of a community, organization, political agencies or the state in their respective efforts to set the framework for solutions to common problems. From the pragmatic point of view, policy is an end

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product consisting of either documents or conclusions drawn by responsible authorities, which clearly express their views on problems demanding actions and how they are dealt with within the available resources. As a strategic point, policy refers to the fundamental process through which an organization provides stability and orderly change while planning to capture future desired goals. Policy as a framework for action (as both the process and end result) implies a guide to action, which is a guide for the achievement of defined goals. Policy therefore is goal-oriented; it is a calculated choice, a decision to achieve certain goals by doing certain things. From the above it can be concluded that law, which represents a body of rules, supported by the power of government, is an end in itself while policy is the means towards that end. 2.3 Real estate law and policy Real estate laws are rules laid down by the state to govern the way real estates are held and used by the general populace. It describes the rules governing acquisition of land, rights of individuals over the real estate, utilization and development of real estate and the consequences of all actions in the estate. Real estate policy means a government’s course of action for all transactions on land within its territory or jurisdiction. Land policy is thus the part of development policy measures, which are related to the role of land in the implementation of urban and regional plans. Land policy entails the intervention by government in regulating land resources under such facets as land tenure, land laws and courts, property taxation and rating valuation, development procedures, public utilities and infrastructure, land development accounting, land disposal arrangement, land or property management and, recently, facilities management. 3. The Nigerian Land Use Act No. 6 of 1978 The Land Use Act recognizes that it is in the public interest that: . land is made available promptly to all those who are willing, ready and able to use it for all purposes in the interest of the economy; . the rights of all Nigerians to land are asserted and preserved by law; and . the rights of all Nigerians to use and enjoy land in Nigeria and its natural fruits in sufficient quantity in order to provide for the sustenance of themselves and their families should be assured, protected and preserved. The four main objectives are to: (1) remove the bitter controversies resulting at times in loss of lives and limbs which land is known to be generating; (2) streamline and simplify the management and ownership of land in the country; (3) assist the citizenry, irrespective of social status, to realise their ambition and aspiration of owning the place where they and their family will live a secure and peaceful life; and (4) enable the government to bring under control the use to which land can be put in all parts of the country and thus facilitate planning and zoning programmes for particular uses.

3.1 Major provisions of the Act The main provisions of the Act are as follows: . All land in the state is vested in the state governors to hold in trust and administer for the use and common benefit of all Nigerians. This must not be construed to mean that the Act gives to the Governors all land in their states. Governors are just trustees and not the owners (Omotola, 1982). . The absolute ownership under customary law has been converted to right of occupancy by granting statutory rights of occupancy on working lands through the Government and customary right of occupancy on rural land through the local government authority. . The responsibility for the administration and management of urban land is under the Land Use and Allocation Committee, while that of rural land is under the Land Allocation Advisory Committee. The Governor of the state determines the membership. . The Certificate of Occupancy serves the purpose that the deed of conveyances was serving prior to the Act. Those whose interests were vested before the Act hold the right of occupancy in the land as if the Governor granted the same to them. . The consent of the Governor must be sought and obtained before the transfer of the right of occupancy for alienation, assignment, mortgage and land transfer for both developed and undeveloped land. . The Governor is empowered to compulsorily acquire the right of occupancy on any land for overriding public interests through the Compulsory Acquisition and Revocation Order as contained in sections 28, 34 and 44 of the Act. . Section 29 deals extensively with the compensation for the unexhausted improvement on the land compulsorily acquired by government. While compensation for developed land is based on the depreciated replacement value, the undeveloped land does not attract any value apart from the ground rent paid for that year which must be refunded to the owner whose right is revoked. 4. Accessibility to land in Nigeria There is a total of 98.3 million hectares of land in Nigeria and it is the most abundant resource in the country (Famoriyo and Wahab, 1984). As an economic commodity, the present and future needs of the populace centre on land. For these needs to be met there has to be adequate accessibility of the populace to this natural and economic resource. Accessibility to land in Nigeria is characterized by a number of factors. There is rapid urbanization exacerbated by rapid urban growth and high magnitude of housing needs, a chronic shortage of economic land, leading to its very high prices and consequently overcrowding. In addition there is a high demand for the peripheral unserviced land, limited supply of land by the state, and stiff opposition by private landowners to releasing their ownership rights to the government. Two parallel systems of access to land exist in Nigeria – the official and unofficial systems – and land speculators abound in both systems. The official system is government intervention in land supply on behalf of citizens, while the unofficial system is privately supplied land through market forces. As access to land is a major

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determinant in the pattern of income distribution, wealth and social welfare, the unearned surpluses are thereby accruing to a few. Apart from this, there are regulations concerning land planning, zoning and subdivision, which have become political and therefore go unenforced. This has put land out of the reach of the majority, thus creating a climate for corruption. There are poorly designed and inefficiently administered taxes and charges on land and real estate, which rarely raise sufficient revenue to provide new infrastructure or to maintain and improve on the existing old infrastructure in the growing cities. Government programmes are ineffective in rural and urban developments as a result of poor problem conceptualization, poor co-ordination, and paucity of funds (Fabiyi, 1990). 5. Current land problems in Nigeria Despite the harmonized land policy, problems still persist in people gaining access to the use of land in both rural and urban areas of the country. This is not surprising because the Unified Land Use Act No. 6 of 1978 has been politicized, abused and has failed to bring land delivery to all. The key land problems emanating from the administration and management of land through the Act are: . limited supply of planned land; . poor basic infrastructure in planned neighbourhoods; . various disputes involving allocated land; and . tortuous bureaucracy in all processes of land development. 5.1 Limited supply of planned land Figures from the registry office of one of the states in the federation (Ondo) revealed that there is a shortage of planned plots within the urban area. Private land owners do resist government efforts to revoke their statutory right of occupancy despite the fact that all land within the jurisdiction of the state is under the control of the state governor. The total number of applications accepted within a year has been as a result of the limited number of plots available for allocation. The Ministry of Land and Housing could not meet the needs of 50 percent of the applicants within any of the years. Within a period of ten years, out of 3,326 applications received for land allocation, 713 got the land, representing 21 percent of the total. This cannot allow for self-actualization of goals in ownership at present and thus sustainability is difficult. The situation is virtually the same throughout all the states of the Federation. 5.2 Poor basic infrastructure in planned neighbourhood Public infrastructure and social services (roads, electricity, waste disposal/sewage facilities, drainage system and water supply) in most Nigerian cities are in a deplorable state (Olotuah, 2002). Inadequacy in infrastructure is pronounced even in government residential estates throughout the federation. The poor state of infrastructure has led to the slow development of land after allocation in some government estates. In most cases allottees have to wait years before they can commence development. In most cases funds originally meant for housing development have been diverted to actualize other priorities in their list of needs. The condition of infrastructure in Nigeria cannot ensure sustainability.

5.3 Various disputes involving allocated land Many disputes arise from the allocation of land by the Land Use and Allocation Committee of the various State Ministries of Land, Works and Housing in Nigeria. Some disputes arise from the allocation of plots to applicants on acquired or revoked land on which compensation has not been paid to the former or original owners. Also there are cases of double allocations due to poor record keeping, the reallocation of undeveloped plots without revoking earlier offers, and outright malpractices in land offices. 5.4 Tortuous bureaucracy in all processes of land development This manifests in all stages of the application for government land for development (residential, commercial or industrial land). Delay springs up right from the time an application for allocation is initiated, to Town Planning Authority approval for building/development plans, and to issuance of a certificate of occupancy. For the alienation of the right of occupancy due to outright sale, or mortgage, the consent of the governor must be sought and obtained. This usually takes so long that the owner may lose interest in the purpose for which that consent is sought. 6. Sustainable development Following the United Nations Conference on Environment and Development in Rio de Janeiro, Brazil, in 1975, the Governing Council of the United Nations Environment Programme (UNEP) stated that environmental management implies sustainable development. Equally, the report of the World Commission on Environment and Development (1987) states that “sustainable development is a process of change in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional changes are all in harmony”. The commission defined the term “sustainable development” as “development which meets the needs of the present without compromising the ability of future generations to meet theirs”. The recent World Summit on sustainable development, which took place in Johannesburg, South Africa, in 2002 had in attendance more than 100 nations and 65,000 delegates. There, environmental issues were put on the global political agenda. The problems identified were global warming, species extinction, consumerism’s waste of the planet, natural resources, deforestation and species losses, issues of enormous human suffering, poverty, malnutrition and infectious diseases. The concern was that, if nothing was done to change the present indiscriminate pattern of development and social inequity, the long-term security of the earth and its people would be jeopardized. The starting point for any action on sustainable development must be a simultaneous consideration of both the present and the future in the built environment. This environment cannot be really dissociated from land or real estate (Asaju, 2004). The key to a sustainable environment is admitting that nature and environment are a continuum and that human and natural systems co-exist. If the built environment is therefore to achieve sustainability, land accessibility and ownership rights, together with essential infrastructure, are all essential. To provide for the growing demand for land and basic services for all social groups government will have to adopt new ways of thinking about the problem. Essentially, no land policy can really succeed in isolation from the tenets of sustainable development.

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Wood (1993) affirms that there are five fundamental goals of sustainable development, viz. conservation of resources, a built environment in harmony with the natural environment, protection of environmental quality, social equity between individuals, societies and generations, and changing values and attitudes through participation in environmental issues. The achievement of these goals requires substantial changes in behaviour and disposition of people at all levels. A system of environmental planning must therefore fulfill three functions: (1) the co-ordination and creation of policies over different time periods and spatial scales; (2) the identification of appropriate targets and methods for implementing them; and (3) the monitoring and evaluation of results. These must be the direction of thinking in any sustainable national land policy. 7. Land issues in some developing countries: a comparison with the Nigerian situation Land issues in most developing countries are often similar to those in Nigeria. In Devas’ (1990) study on financing of urban land development in Jakarta, Indonesia, seven common features concerning access to land in developing countries (Nigeria inclusive) are identified. These are rapid urban growth and high demand for shelter in a situation of low income for the majority, chronic shortage of serviced land, high price of unserviced fringe land, and massive unearned surpluses accruing to a few bad owners. Others include poor land registration and crowded titles, a maze of unenforced regulations relating to land planning, zoning and subdivision, and poorly designed and inefficiently administered taxes and charges on land. Dowall (1991) made a broad categorization of land problems in developing countries. In his effort to provide land policy options for urban Tanzania, Kironde (1997) summarily put these as the quality, quantity and price of land and housing. The problems also include the government’s failure to tax surplus land value effectively, and to control or work with the private sector in the area of land development. Njoh (1992) decried the partiality of most land policies in African countries as always ending up in benefiting rich or socially powerful citizens, as is the case in Cameroon. In South Africa the system of land redistribution was introduced through land restitution (the restoration of lands to those who were displaced by apartheid) and land acquisition (where the market provides means of effecting transfer). Most claims have not been totally resolved to the mutual satisfaction of all the interested parties (Christopher, 1995). 8. Conclusion Land ownership rights in Nigeria were certainly plagued by problems prior to the introduction of the national land policy by the Land Use Act No. 6 of 1978. However, since the Act has been in operation there have been six national governments which have successively subjected it to much abuse of power, partiality or favoritism. Practitioners and academics have criticized several provisions of the Act.

The national land or real estate policy has thus been found deficient in meeting the aspirations for sustainable development. A review of the policy is therefore now inevitable. The achievement of this depends on three functions: (1) its proper co-ordination over different time periods; (2) the identification of appropriate targets and methods for implementing them; and (3) the monitoring and evaluation of results at the end of all time periods. It therefore becomes imperative that a new policy gives ample chance for community participation in land delivery. Globally the tenets of sustainable development are being upheld by all nations, and Nigeria cannot be an exception. Governments, including that in Nigeria, must recognize that sustainable development requires substantial changes in behavior at all levels. The new policy should therefore consider the needs of the country as a whole, including those of local and regional planning, so that the entire structure can work to the benefit of the entire nation. References Asaju, A.S. (2004), “Globalization, urban, property market and the search for sustainable city development”, Real Estate Digest, Estate Management Students Association, Federal University of Technology, Akure, pp. 12-16. Barlowe, R. (1978), Land Resource Economics, 3rd ed., Prentice-Hall, Englewood Cliffs, NJ. Christopher, A.J. (1995), “Land restitution in South Africa 1991-1994”, Land Use Policy, Vol. 12 No. 4, pp. 267-79. Devas, N. (1990), “Financing urban land development of low income housing: an analysis with particular reference to Jakarta, Indonesia”, Third World Planning Review, Vol. 5 No. 3, pp. 209-25. Dowall, D. (1991), The Land Market Assessment: A New Tool for Urban Management, UNDP/World Bank/UNCHS Urban Management Programme, Washington, DC, p. 2. Fabiyi, Y.L. (1990), “Land policy for Nigeria: issues and perspectives”, Inaugural Lecture, Obafemi Awolowo University, Ile-Ife. Famoriyo, S. and Wahab, K. (1984), “Land tenure and real estate development in Nigeria”, International Real Estate Journal, Vol. 2 No. 1, pp. 65-71. Farvacque, C. and McAuslan, P. (1992), Reforming Urban Land Policies and Institutions in Developing Countries, Urban Management Program, World Bank, Washington, DC. Kironde, J.M. (1997), “Land policy options for urban Tanzania”, Land Use Policy, Vol. 14 No. 2, pp. 99-117. Njoh, A. (1992), “Institutional impediments to private residential development in Cameroon”, Third World Planning Review, Vol. 14 No. 10, pp. 21-37. Nnamani, A. (1989), “The Land Use Act, 11 years after”, lecture delivered at the Annual Party of the Nigerian Bar Association, Ikeja Branch, Lagos, 22 May. Olotuah, A.O. (2002), “An appraisal of the impact of urban services on housing in Akure Metropolis”, Journal of Science Engineering and Technology, Vol. 9 No. 4, pp. 4570-82. Omole, F.K. (1999), Planning Issues in Nigeria: Land Tenure System and the Land Use Act, Front Publications Ltd, Lagos.

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Omotola, J.A. (1982), The Land Use Act – Report of a National Workshop, Department of Private and Property Law, University of Lagos, Lagos. Wood, C. (1993), The Concept of Sustainable Development: Envisioning Sustainability, Earthscan, London. World Bank (1990), Towards the Development of an Environmental Action Plan for Nigeria, World Bank, Washington, DC. World Commission on Environment and Development (1987), Our Common Future, Oxford University Press, Oxford. Further reading Haastrup, A.I. (1982), “Understanding land policy”, The Estate Surveyor and Valuer, Vol. 6 No. 1, pp. 35-8. Corresponding author Abiodun Olukayode Olotuah can be contacted at: [email protected]

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Internet review The web site information included below includes two key and other informative sites. If there are any other interesting sites or sources of information that you have found useful, please e-mail me at [email protected]

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The Building Research Establishment (www.bre.co.uk) The BRE’s web site main menu includes: . home; . about BRE; . BRE by sector; . a to z of services; . key services; . news; . latest news; . press archive; . constructing the future; . training & events; . job opportunities; . e-newsletter; . search site; . contact us; and . how to find us. The Latest News section includes information on: . OFFSITE2007. Companies from the UK and abroad are building the first houses designed to demonstrate compliance to the new Code for Sustainable Homes. The Code, launched in April 2007, has been developed by Communities and Local Government (CLG) based on BRE’s EcoHomes method to enable a step change in sustainable building practice for new homes. It provides a means of assessing the sustainability credentials of new homes for energy, water, materials, waste, pollution and other issues. Companies such as Kingspan and Stewart Milne are ambitiously aiming to demonstrate how they would conform to the two top levels of the Code, Level 6 and Level 5 respectively. This means that both houses will have to be as near to “zero carbon” as possible. Kingspan Off-site’s two-bedroom “LightHouse” will have impressive levels of efficiency in terms of construction methods, energy use, CO2 emissions and carbon footprint and is being designed in line with Lifetime Homes and Scheme Development Standards (SDS). Every building material and component used in the design has been specified to optimise the building’s overall sustainability

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credentials. A highly insulating, airtight building fabric has been developed to provide generous daylight levels. This includes effective solar control and integrated building services based around a platform of sustainable technologies covering water efficiency, renewable energy technology, passive cooling and ventilation, as well as mechanical ventilation with heat recovery (MVHR). The Stewart Milne Group is aiming to show that sustainability is commercially viable in mass produced housing. They are building demonstration houses to exhibit these attributes. M&S and BRE’s five-year sustainable retail partnership. Marks & Spencer has announced that it is to enter into a unique five-year partnership with the BRE. The partnership, which is the first of its kind in retail, will see M&S and the BRE team work together on ways of helping M&S achieve its Plan A * targets to become carbon neutral, send no waste to landfill and extend the use of sustainable raw materials by 2012. M&S is increasing its store space by up to 20 per cent over the next five years and, in the biggest programme in the UK, is continuing to refurbish all of its stores. BRE will provide advice on ensuring these programmes are as sustainable as possible and will develop a set of “Sustainable Retail Construction” guidelines for new and existing M&S stores. These guidelines will cover everything from the analysis of initial store designs and the selection of construction materials, to auditing and working with key suppliers to deliver sustainable construction methods. BRE’s FIREGRID project features in BBC “Horizon” programme. FireGrid is a three-year £2.3 million project supported by the DTI-led Technology Programme and due for completion in April 2009. The project is led by BRE and includes the University of Edinburgh; Arup; ABAQUS UK Ltd; ANSYS Europe Ltd.; Vision Fire & Security Ltd.; the London Fire and Security Planning Authority and the Institute of High Performance Computing, A *STAR (Singapore). FireGrid aims to develop a prototype emergency response system that, in the event of a fire, will provide fire fighters with information concerning the likely sequence of events before they unfold. RDA to fund ambitious refurbishment project. The East of England Development Agency (EEDA) will be providing substantial funding for a high profile project that will move refurbishment up the housing agenda and help bring thousands more homes back on to the market. The £2.7m project will apply the latest techniques in energy efficient and intelligent design to a Victorian stable block to demonstrate the important role that refurbishment can play in delivering low carbon housing for the twenty-first century. The stable block which BRE has made available for renovation poses all of the problems associated with pre-1919 housing including solid brick walls, sash windows, a clay tile roof, dampness, disrepair and poor thermal performance. As well as pushing the boundaries of environmental good practice, the refurbishment specification will focus on meeting modern needs. The building will incorporate intelligent products and digital communication infrastructure to monitor building performance and enable the provision of tele-care, workstations, education and home entertainment. The aim is to kick-start a step change in refurbishment standards nationally and demonstrate the art of the possible. The stable block will be refurbished as an exemplar housing project with an education facility to showcase the latest refurbishment technologies and

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techniques, and a training centre for top-up courses and knowledge promotion in construction skills and crafts. BRE Trust publishes guide to Internet Protocol in buildings. New research has indicated how vulnerable UK businesses and homes are to the ever growing reliance on Internet Protocol (IP), the language that computers use to communicate with each other over networks. Two out of three home wireless local area networks (WLAN) have been found to be open to attack, and this year data security breaches are set to increase, raising serious risk management concerns for businesses. In response to this, the BRE Trust has published Internet Protocol: an introductory guide. This informative guide explains the challenges faced in anticipation of the increased use of IP and its application to building services, such as: CCTV/security; Voice over Internet Protocol (VoIP); Heating, Ventilation and Air Conditioning (HVAC); and lighting and entertainment systems.

The Royal Institution of Chartered Surveyors (www.rics.org.uk) The main menu of the RICS web site includes: . About RICS; . Built Environment; . Property; . Environment; . Management; . Training; and . RICS Services. There are Quicklinks to: . About RICS; . What is Surveying; . Find a Surveyor; . RICS Library; . RICS Books; and . Contact Us. Helpful Guides include: . Buying a home; . Selling your home; . Letting a property; . Understanding property surveys; and . Order RICS Guides online. Regulating RICS members: . RICS Rules of Conduct; . Regulatory Reform;

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Complaints Procedures; and Disciplinary Cases.

RICS News section includes: . Construction of new leaning tower announced. It has been announced that construction work to build a new leaning tower in Pisa, Italy will begin in June just three miles from the original monument. The modern glass and steel building, designed by architect Dante Oscar Benini, will be home to a number of apartments and offices, the Associated Press reports. Unlike the original landmark this new tower will not really be leaning. Instead it will simulate a tilt through a clever optical effect, making it look like the real thing. It will also be exactly the same height as the original, standing some 189 feet tall. Also unlike the real tower, construction work on Benini’s creation is expected to be completed within a relatively short space of time. It is believed the contemporary version will be ready within the next two and a half years, while construction on Pisa’s great monument began in 1173 and continued, with two long breaks, for the next 200 years. . Climate change education pack for schools. The Department for Environment, Food and Rural Affairs (Defra) has dispatched an education resource pack to schools throughout England. Available to every secondary school in the country, Defra’s new resource pack includes a number of educational tools, including An Inconvenient Truth, a film presented by Al Gore. Other items in the resource pack include a selection of films commissioned by Defra, in addition to links for online support and further information. The pack was developed by Defra, in partnership with the Department for Education and Skills. . Review of the Permitted Development Order 1992 – Final Report. Heriot-Watt University, Brodies LLP and Scott Wilson Scotland Ltd have published their joint research findings on the Review of the General Permitted Development Order 1992 and the Review of the General Permitted Development Order 1992. Recommendations are founded on improving the clarity, simplicity and ease of understanding, consistency and currency of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992. . Construction begins on NW China’s largest mine. Work has begun to construct the largest coal mine in Northwest China, helping the country to increase its annual output and meet the growing demands of its rapidly expanding economy. The $336m mine is being built in the Xinjiang Uygur autonomous region of China and is expected to take around 42 months to complete. According to state media it will be the first mine in Xinjiang to have a yearly output capacity of 10m tonnes and, it is hoped, will generate profits of $188m per year. According to the BBC some 80 per cent of China’s electricity comes from coal and as a result of this huge demand the country plans to build around 544 new coal-fired power stations. This means that more mines will be needed to bring up the coal from the ground and since Xinjiang is estimated to be home to 40 per cent of China’s total coal reserves it could see more mine construction in the near future.

RICS Opinion section includes: (1) Transforming Existing Buildings: The Green Challenge. If we are serious about combating climate change then we must address the 40 per cent of carbon emissions that come from our buildings. The steps that can be taken in people’s homes are becoming clearer and more widely accepted but action still needs to be taken in offices, retail units, hotels and industrial buildings. The report, Transforming Existing Buildings: The Green Challenge sets out practical steps needed to encourage the refurbishment of commercial buildings to ensure they meet the best energy efficiency standards. It was commissioned by RICS and carried out by Cyril Sweett to address the need for more information on how to make existing commercial buildings more energy efficient. The report also contains a set of 15 key recommendations from RICS for the government and the property and construction industries to ensure these measures are put in place. From painting walls lighter colours to installing insulation, a range of measures can have an impact on energy use in buildings and ultimately the environment. In response to the report RICS is calling on the government to: . Ensure all the buildings it owns and uses are brought up to high energy efficiency standards. Newly built government offices such as the new Home Office building have energy efficiency measures and retrofitting other buildings would encourage others to do the same. . Reduce VAT from 17.5 per cent to 5 per cent on retrofit and refurbishment as this would make it cheaper to make changes to buildings. The government has already signalled its intention to lower VAT to encourage the uptake of energy efficient products including light bulbs and should extend this include the refurbishment of buildings. . Consider other tax breaks as an incentive to introduce energy efficiency measures. . Introduce a compulsory code for sustainable buildings, developed in association with the industry, which would set out minimum environmental standards that have to be met when refurbishment takes place. This creates a level playing field that all those carrying out refurbishment work have to meet. . Ensure the planning system and the Building Regulations help energy efficiency rather than hindering it. The government must ensure these systems are weighted in favour of energy efficiency measures. One important change would be the introduction of a presumption in favour of micro generation equipment in Planning Policy Statement 22. (2) RICS view: Lyons Inquiry into Local Government. Sir Michael Lyons has revealed the findings of his inquiry into local government and has called for a full revaluation of all domestic properties. In addition, Sir Michael has called for the introduction of regular revaluations at intervals of no more than five years and new bands for council tax. On business rates he has asked the government to retain the national structure at present but called on them to look at long term reforms including localisation. (3) RICS view: Household Taxation and Local Charges. The Lyons final report supports RICS’s recommendation relating to the revaluation of all domestic properties for council tax. RICS is of the opinion that revaluation is well over

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due and that this should be one of the government’s priorities. For council tax to be fair and transparent it is essential that the information used is up to date. Further deferment of revaluation will only make its introduction more difficult as the changes in value resulting from any revaluation will be greater as the time between revaluation increases. The report also supports our recommendation for regular and consistent revaluations of no more than five years and this reinforces the necessity for revaluation to take place as soon as possible and the priority it should be given by the government. RICS supports the introduction of additional bands at the top and bottom of the current structure as this would enable fairer redistribution of the council tax burden and we also support the introduction of separate bands for Inner London to reflect the unique shape of the property market. The recommendation to abolish the saving limits in council tax benefits for pensioners is also supported. RICS are in favour of investigating further taxes for domestic waste collection and also recommend possible taxes for parking and landfill. The RICS supports the retention of the RPI cap on the national level of business rates as this is an important safeguard, ensuring stability and predictability for businesses. The RICS also supports the introduction of supplementary local rates, we recommend that businesses have a say in the matter and that the revenue is hypothecated to purposes likely to benefit businesses in the locality. However the RICS does not support the localisation of business rates and strongly recommend that business rates remain on a national basis as this ensures stability and predictability which is desirable for all businesses. They strongly recommend that the Non-Domestic Business Rate (NDR) is not relocalised and we are also against local income and sales taxes as we see these as unworkable. Office of Public Sector Information (www.opsi.gov.uk) The main menu of the RICS web site includes: . About OPSI; . Contact Us; . FAQs; . Site Map; . A-Z Index; . Glossary; and . Viewing Advice. Operating from within the National Archives, the Office of Public Sector Information (OPSI) is at the heart of information policy, setting standards, delivering access and encouraging the re-use of public sector information. OPSI provides a wide range of services to the public, information industry, government and the wider public sector relating to finding, using, sharing and trading information. The merger of OPSI with the National Archives in October 2006 enables the combined organisation to provide strong and coherent leadership for the development of information policy across government and the wider public sector. OPSI has an important role as a regulator of public sector information holders for their information trading activities. The Information Fair Trader Scheme (IFTS) founded on the principles of openness,

transparency, fairness, compliance and challenge helps re-users of public sector information to know that they will be treated reasonably and fairly. OPSI also investigates complaints against public sector information holders made under the Re-use of Public Sector Information Regulations. OPSI provides the Click-Use system for obtaining a licence to re-use Crown copyright and public sector material through an online licensing process and is responsible for the Information Asset Register (IAR) that lists information assets held by the UK Government with a focus on unpublished material. OPSI also provides a secretariat to the Advisory Panel on Public Sector Information (APPSI), which advises Ministers on how best to encourage the re-use of public sector information. Operating from within OPSI, Her Majesty’s Stationery Office (HMSO) continues to exist and fulfil its core activities including responsibility for the publication of legislation and the management of Crown copyright. This site also includes details about The Energy Performance of Buildings (Certificates and Inspections) Regulations 2007 (SI 2007/991), which implement Articles 7, 9 and 10 of the Energy Performance of Buildings Directive (EPBD) which have come into effect.

United Nations Environment programme Environment for Development (UNEP) (www.unep.org) UNEP’s mission is “to provide leadership and encourage partnership in caring for the environment by inspiring, informing and enabling nations and peoples to improve their quality of life without compromising that of future generations”. The web site is structured as: . About UNEP; . Publications; . Events and Meetings; . Awards; . Employment; . UNEP Store; and . The Billion Tree campaign. The current News section includes: . IPCC confirms that cost-effective policies and technologies could greatly reduce global warming. . A new assessment by the Intergovernmental Panel on Climate Change (IPCC) concludes that the world community could slow and then reduce global emissions of greenhouse gases. . UNEP Wins Prestigious USEPA Stratospheric Ozone Protection Award for the Second Time. . UNEP Champions of the Earth Awards Make Big Splash at Gala Ceremony in Singapore. . UN Engages Banks to Light Up Rural India.

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There are also details of the United Nation’s study “The Buildings and Climate Change Report” on potential energy savings of Europe’s energy consumption. It states that there is a potential saving of up to 20 per cent. The report also states that the main challenge to achieve emission reductions primarily in existing buildings by cutting energy waste.

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Westenhanger Castle (www.westenhangercastle.co.uk) Westenhanger is the site of a fourteenth century Quadrangular castle. The web site gives details of the ten-year conservation programme to the castle and the proposed work to the sixteenth-century barn, which has a hammer beam roof. Allspace (www.allspace.ie) This website details the company’s modular buildings. The site includes video and interactive photography. DEHN UK Ltd (www.dehn.co.uk) This site provides information on DEHN UK guides including lightning and surge protection. Information on National and International standards is also presented. Sustainable Development Research Network (SDRN) (www.sd-research.org.uk) The Sustainable Development Research Network (SDRN) aims to contribute to sustainable development in the UK by encouraging the better use of evidence and research in policy-making. Membership of SDRN is free and open to all. The main menu includes: . Home; . News; . Events; . Publications; . Research Reviews; . Sustainable Transport; . Engineering; . Spatial Planning and Development; . Business Resource Efficiency; . Collaborate; . Jobs and Training; . Links; and . About.

Health and Safety (www.iosh.co.uk) IOSH is Europe’s leading body for health and safety professionals. There are over 30,000 members worldwide, including almost 10,000 Chartered Safety and Health Practitioners. The Institution was founded in 1945 and is an independent, not-for-profit organisation that sets professional standards, supports and develops members and provides authoritative advice and guidance on health and safety issues. The site also gives details of the “occupational health kit” to help non-medics recognise early signs of work-related ill health. The kit also suggests actions for managers. Ordnance Survey (www.ordnancesurvey.co.uk/mdc) This site gives information on the new network of mapping and data centres. OS Sitemap is the new large scale mapping product which replaces Superplan and Siteplan. NetRegs (www.netregs.gov.uk) This web site gives practical specific guidance to small businesses (including construction) on their environmental obligations. There is a guide to explain the current and future environmental legislation which includes Site Waste Management Plans (SWMPs) which are set to become a legal requirement in 2008. The Passive Fire Protection Federation (www.pfpf.org) This site includes details of passive fire protection. The Regulatory Reform Order (Fire Safety) was introduced in October 2006. This places the responsibility for fire safety on building owners and employers. The designated responsible person must complete a Fire Risk Assessment to be compliant with the law. HSE (www.hse.gov.uk/construction/cdm/htm) This site details the responsibilities for Health and Safety following the CDM Regulations 2007. Responsibility for Health and Safety will also be on those who commission and pay for developments as well as designers. The definition of construction also includes demolition and dismantling. The main menu for this section of the web site includes: . What do I need to do?; . What’s in it for me?; . How do I find out more?; . Legal requirements; . How do I notify projects (F10)?; and . CDM 2007 launch and events.

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Asbestos Regulations (www.thameslabs.co.uk) This consultancy web site details “the Control of Asbestos Regulations 2006”. It also includes a podcast which discusses: . Changes to Regulation 4 (duty to manage); . Changes to exposure levels; . Facilities Manager’s duty to outside contractors; . Employer’s responsibility to train staff; . Textured coatings such as Artex; and . The meaning of sporadic low intensity work. Permavent (www.permavent.co.uk) This company supplies roofing membranes, tapes and ancillaries. The site is structured as: . Home; . Products; . FAQs; . Accreditation; and . Info. The information section includes: . Specifier’s Guide; . Comparison Chart; . Installation Guide; . COSHH; . Types of roof; . Why should I use Permavent?; . Distribution; . Energy Efficiency; and . Links. Google 3D Warehousee (www.google.co.uk) This additional capability of Google allows users to explore the virtual world. It is possible to download 3D models from Google 3D warehouse for use in CAD drawings. It is also possible to publish designs to the Warehouse as well as enabling the model to be displayed in Google Earthe. Stephen Todd