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In this subject, students explore the external constraints on construction. These are legal, via the public law of land use planning (sometimes called development control or zoning) and of applicable construction standards; and via the private law rights of those close to the project site. But they are also extra-legal, via community pressures to stop or modify planned development. The subject takes a comparative common law approach, considering a selection of Australian states and territories (including Victoria) and New Zealand, but also England and Wales, whose law remains the origin of the relevant law in Australasia, as well as in Hong Kong, Malaysia, Singapore and most of North America.
Philip Britton has extensive construction law teaching experience at King’s College London and in the Melbourne Law Masters and has published on ‘neighbour issues’ in construction. Melbourne colleagues will also contribute, together with guest speakers from ‘the field’.
This subject provides an examination of the legal and non-legal issues which operate as external constraints on construction projects, within a comparative common law context.
Principal topics include:
- The public law of land use planning: its aims, structures, operation in practice and openness to legal challenge
- The law of ‘building control’, via applicable construction standards: definitions, operation, enforcement and inspectors’ powers, including ongoing reforms in Victoria
- The private law rights ‘neighbours’ enjoy against the negative aspects of construction, via property/land law and the law of tort
- The remedies available in court for actual or potential infringement of these rights and judges’ approaches to the choice of remedy, including (in particular) to the assessment of damages
- How the structuring of the project may determine who bears the ultimate cost (or liability) if a neighbour successfully challenges the whole project, or where or how it is being constructed
- The powers (legal and extra-legal) of community action groups to influence decisions about new construction and how project sponsors may respond.
Intended learning outcomes
A student who has successfully completed this subject will:
- Have an understanding of the role and function of law – both public and private – in imposing potential and actual external constraints on construction projects, and of the interaction between public and private law in this field
- Be able to demonstrate an appreciation of the role and operation of planning law in attempting to safeguard community goals in relation to construction; the limits of those regulatory regimes; and the possibility for legal challenge of decisions on planning issues
- Have a general understanding of relevant objectives and requirements within the National Construction Code (incorporating the Building Code of Australia) and of the regimes which attempt to ensure compliance with applicable construction standards in individual projects; as well as a comparative understanding of how other common law jurisdictions operate in this area and of the difficulties of making such a regime work reliably
- Be familiar with the systems of private law which give ‘neighbours’ rights in relation to construction potentially or actually affecting them, including ‘the right of support’, the acquisition of easements by prescription, restrictive covenants, the law of trespass, nuisance and liability under Rylands v Fletcher and variations in the scope of these rights between different common law legal systems
- Acquire an in-depth understanding of the remedies which the law makes available to protect the rights of neighbours and the principles behind the courts’ choice of remedy in different cases
- Have an understanding of the tactics available to a developer or principal in order to minimise the risks of legal or popular opposition to a construction project
- Be able to demonstrate the research and communication skills to independently investigate, examine and analyse existing and emerging legal issues relating to all types of external restraints on construction.
Last updated: 29 January 2022