Understanding the Advance Payments Code and the Highways Act Developer Obligations Explained

A developer asks you why she should make interim payments, she has become aware of the possibility of making Advanced Payments. (5 marks)

A developer is required by the Advance Payments Code (APC), which is a statutory notice served by the Council. The relevant law is Schedule 17 and Sections 219-225 of the Highways Act 1980 (Highways Act 1980, 1980).

The Advance Payments Code Notice (APC) is served by the Council after it receives an approval or acceptance of any Building Regulations application and after verifying that the streets within the site boundary are suitable for adoption. offer the most crucial support for civil engineering dissertation help. This is subject to the condition that the proposed layout is beneficial to the wider public. For example, a through route to potential future development or to public open spaces will be considered of public benefit (Cornwall Council Website, 2021).

The developer has to pay the APC sum. The Local Land Charges Register registers such notices, which will stay with the land and will remain payable even after the land is sold later (Cornwall Council Website, 2021).

Explain to the developer the methods and processes of making interim payments. (10 marks

Under Section 220(1), street works authority serve a notice on the developer within six (6) weeks from the passing of the required plans deposited with the local authority relating to the works requiring the developer to pay or secure under section 219 above of a sum specified in the notice. Such amount can be recovered, as provided under Section 220(4)(a) if the street works authority declares such amount as exceeding the required sum.

Section 219(1) will require the owners of new buildings in respect of street works to make the payments. Such payment is related to erection a building for which plans. are deposited with the local authority, and the building requires a frontage on a private street that requires works as determined by the street works authority. According to Section 220(3), if the authority declares that such work will be carried out on the street, the amount paid will be recoverable.

Section 220(5) deems the sum specified in a notice as paid fi the building erection is prohibited until works for construction or sewering are carried out.

According to Section 220(8), after the payment or securing the land as required above, the land is subdivided into 2 or more parts creating 2 or more owners, the sum or liability incurred due to street works are to be apportioned between the owners. The owner who secured the sum or secured the land must be released to the extent of the amount apportioned.

You are to include in your answer the advantages and disadvantages of making Advanced Payments and ways of guarding against any disadvantages. (10 marks).

The APC notice will require the developer to a sum of money to the Council to cover for the cost of constructing a street in order that residents are protected in the event that such developer fails to complete the development work (Cornwall Council Website, 2021). This is the purpose for payment of APC notice amount. This is a means for the local highway authorities to ensure protection of the council and the future residents of the development against the cost of completing tore remedying the work that may turn out unsatisfactory (Hampshire Couinty Council, 2020).

The disadvantage may be lie in the refund of excess sum or sum paid in case Section 220(4)(a) and Section 220(3) that show a chance that local authority was not sure of the plan even after passing the development plan. It takes six weeks for them to serve the notice after the plan is approved. The law does not give any limit of time of refunding the amount. Thus, the owner or developer will have the money stuck with the local authority.

Evaluate the remedies to a breach of contract. (5 marks)

Remedies to a breach of contract can be damages as of right. Damages is right exercised by party against the breaching party. The damages can be nominal where there is no loss (Poole, 2012, p. 1966). They can be substantial where there is a monetary compensation for loss suffered due to breach (Poole, 2012, p. 2010). For damages to recover, the loss should not be too remote from the breach (Poole, 2012, p. 1951; Hadley v Baxendale ([1854] 9 Exch. 341), 1854). Damages seek to place the party who suffered in the position had the contract was performed properly (Robinson v Harman [1848] 18LJ Ex 202, 1848). Damages can be liquidated (Robophone Facilities Ltd v Blank [1966] 3 All ER128, 1966).

Specific performance is required in case the subject matter of the contract is unique (Falcke v Gray ([1859] 4 Drew651, 1859). Injunction is required in case where damages are not adequate (Lumley v Wagner [1852] 1 DM & G604, 1852).

Using relevant case laws, discuss the defences to negligence. (10 marks)

The three kinds of defences to negligence are voluntary assumption of risk, contributory negligence and illegality (Horsey & Rackley, 2019, p. 313). For the defence of voluntary assumption of risks, the defendant must demonstrate that the claimant had consented to the full extent and the nature of the risk. It is not enough to show that the claimant was aware of the risk (Horsey & Rackley, 2019, p. 312). The defence of assumption of risk is, thus, based on the concept that the claimant had consented to the defendant's conduct. This voluntary assumption of risk automatically annuls the claimant’s claim of negligence. Voluntary assumption of liability comes under the purview of the law of contract (Jennings v Forestry Commission 2008 WL 2148122 (CA (Civ Div)), [2008] EWCA Civ 581, 2008). It is subject to an objective test with primary focus on “things said or done by the defendant or on his behalf in dealings with the plaintiff” ( Williams and another v Natural Life Health Foods Ltd and Mistlin [1998] 2 All ER 577., 1998).

For the defence of contributory negligence, a claimant will be held guilty of contributory negligence if they ought to have reasonably foreseen that if they did not act as a reasonable prudent man, they might hurt themselves (Horsey & Rackley, 2019, p. 305). This defence is not to defeat the claimant’s claim but to reduce the amount of damages the defendants must pay (Horsey & Rackley, 2019, p. 303). This defence, thus, requires proving the three elements of duty on the part of the claimants that they should have foreseen the result for their unreasonable behaviour; the breach of such duty; and that their act has caused the tort.

Claimant’s illegality is a ground of defence to negligence. In (Gray v Thames Trains Ltd [2009] UKHL 33, 2009), the House of Lords upheld this defence by ruling that if the claimant bore personal, albeit diminished responsibility for their actions, there will be inconsistency in the justice system if they were to be compensated for losses that losses are consequent on their own criminal act.

Using case laws, evaluate the defences to defamation. (10 marks)

The Defamation Act 2013, s1provides that a statement is not defamatory if the “publication has caused or is likely to cause serious harm to the reputation of the claimant.” Thus if the statement is truth (S2), honest opinion (s3), of public interest (s4) (Bonnick v Morris [2003] 1 AC 300, 2003), of operators of websites (s5), a “peer-reviewed statement in scientific or academic journal etc” (s7) or reports, etc protected by privilege (s8), it cannot be considered defamation.

Question 3

Using examples, discuss the reasons for good health and safety.

Good health and safety practices are important given the high levels of work‐related injury and disease. Their absence can cause a high incidence of accidents causing injury, such as cuts and lacerations, burns and scalds from handling equipment and other work products. As such, health and safety procedures must be audited and constantly reviewed. There must be proper planning and implementation of an effective safety and health management system (Gleeson, 2001). For example, in a catering industry, there must be standard protocols for using the cooking and supply appliances and hot liquids, including proper wear and gear, first aid kits and necessary safety SOPs in place in case of incidents.

Health and Safety Executive uses a range and mixture of regulatory interventions to improve Health and safety risk management, using examples critically evaluate the interventions.

There has been a variety of occupational health and safety management system standards and guidelines developed in the past recent decades. Understanding the impact of this system is necessary to assess the level of employees or workers’ health and safety measures and associated economic outcomes (S.Robson, et al., 2007). However, it is found that project management in industrial settings was mostly found deficient, particularly in the construction industry, with regard to integrating OHS risks. Such deficiency presents a major problem that affects the safety of industrial practices. There has been a general lack knowledge of OHS within organisations and project teams. Further, it has been found that the integration of OHS risk has not been systematic in all the industrial fields. This problem still exists irrespective of the fact that new and improved laws and management systems are in order (Badri, et al., 2012). Similar deficiency could be stated to be found in terms of work-related psychosocial risks, where there is a high-level diversity across strategies. Even though, interventions at policy-level and work-related psychosocial risk management have taken place in the EU, there has been a large neglectin the mainstream academic literature. This is despite the fact that there has been an achievement at the policy level a number of significant developments towards the management of psychosocial risks. Amongst the EU members, there is a great variation in the translation of initiatives into practices (Leka, et al., 2010).

During the pre-contract stage your Employer asks if there is any way they can take over part of the development before the whole development is ready.

Answer your Employer giving advice on what happens if part is taken over.

Pre contract actions (8 marks)

A development company may be requested by the owner or occupier or a property investment company to take on the role of project management subject to a fee, either fixed or linked with the profit of development. Assuming the project management role, the development company at an early stage can advise the developer about detail such types of building contract or can get involve in development brief or design discussion (Reed & Sims, 2014). This pre-construction phase does not involve any activities of development or construction. As such, the employer cannot take over part of the development before the while development.

Post contract actions (8 marks)

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Reaction to part being taken over (9 marks)

Bibliography

Cornwall Council Website, 2021. Advance Payments Code. [Online] Available

https://www.cornwall.gov.uk/transport-parking-and-streets/roads-highways-and-pavements/highway-and-infrastructure-adoptions/advance-payments-code/#:~:text=The%20Advance%20Payments%20Code%20(APC,fails%20to%20complete%20the%20works.

[Accessed 26 04 2021].

Highways Act 1980, 1980. s.l.:s.n.

Hampshire Couinty Council, 2020. The Advance Payments Code Guidance Note. [Online] Available at: https://documents.hants.gov.uk/transport/APCProcess-Guidancedocument.pdf [Accessed 26 04 2021].

Hadley v Baxendale ([1854] 9 Exch. 341) (1854).

Robinson v Harman [1848] 18LJ Ex 202 (1848).

Robophone Facilities Ltd v Blank [1966] 3 All ER128 (1966).

Falcke v Gray ([1859] 4 Drew651 (1859).

Lumley v Wagner [1852] 1 DM & G604 (1852).

Aluminium Industrie Vaasen BV v Romalpa Aluminium Ltd [1976]1 WLR 67 (1976).

Bennett v White [1910]2QB 643 CA (1910).

Horsey, K. & Rackley, E., 2019. Tort Law. s.l.:Oxford University Press.

Gray v Thames Trains Ltd [2009] UKHL 33 (2009).

Jennings v Forestry Commission 2008 WL 2148122 (CA (Civ Div)), [2008] EWCA Civ 581 (2008).

Williams and another v Natural Life Health Foods Ltd and Mistlin [1998] 2 All ER 577. (1998).

Bonnick v Morris [2003] 1 AC 300 (2003).

Gleeson, D., 2001. Health and safety in the catering industry.. Occupational Medicine, 51(5), pp. 385-391.

S.Robson, L. et al., 2007. The effectiveness of occupational health and safety management system interventions: a systematic review. Safety science, 45(3), pp. 329-353.

Badri, A., Gbodossou, A. & Nadeau, S., 2012. Occupational health and safety risks: Towards the integration into project management. Safety science, 50(2), pp. 190-198.

Leka, S., Jain, A., Zwetsloot, G. & Cox, T., 2010. Policy-level interventions and work-related psychosocial risk management in the European Union.". Work & Stress , 24(3), pp. 298-307.

Reed, R. & Sims, S., 2014. Property Development. s.l.:CRC Press.