Liability in negligence for building defects in Ireland, England and Australia

Purpose The purpose of this paper is to consider decisions of the courts of three jurisdictions: Ireland; England and Wales; and Australia, in relation to recovery of economic loss in negligence for building defects and to identify the extent to which the legal environment of each jurisdiction has informed the approach of the courts to the issue. Design/methodology/approach The approach taken for this purpose is to review the extent of legislative intervention in each jurisdiction to provide measures of protection for home buyers, and whether that intervention has limited the scope of what may be recovered in negligence for defects. Findings The findings of the research indicate that the retreat from recovery for defects, led by the courts of England and Wales through a series of cases in the 1980s and 1990s, may be regarded in part as a product of their environment, and that legislative intervention in the area of remedies acted as a limitation on the scope of the duties that the courts were prepared to impose. Originality/value Although the issue of recovery for building defects in negligence has been covered extensively in the literature and jurisprudence, the cross-referencing of the common law position with the legislative context in the jurisdictions considered provides insights into the approaches of courts and why the position of the courts of England and Wales may not transpose comfortably to other jurisdictions.

Factors influencing land title registration practice in Osun State, Nigeria

Purpose The registration of land titles is an important component of title documentation and certification process that is influenced by a variety of factors. The purpose of this paper is, therefore, to examine factors influencing land title registration practice in Osun State, Nigeria. Design/methodology/approach Data used for this paper were collected from 520 land title registration applicants, representing 48.10 per cent of the total number of applicants for land title/property rights registration in Osun State, Southwestern Nigeria, using systematic random sampling technique, with sampling interval k = 5. Data collected were analyzed using descriptive and inferential statistical techniques, such as frequency distribution and percentages, relative importance index (RII) and factor analysis. Findings The findings revealed that factors such as high cost of title documentation and corrupt practices of land registry staff had significant influence on land title/property rights registration process, while factors such as suitability of organizational structure and personnel competence/low morale had less influence on land title registration in the study area. Practical implications The findings of this paper suggest the inadequacies inherent in the land title registration process in the study area which has significant implications for land titling registration process in Osun State, the entire Nigerian state and other emerging African economies. Originality/value The paper is one of the few papers that analyzed the factors influencing land title registration from the perspective of end-users in an emerging African economy like Nigeria.

Measures in curbing poor compliance to building control regulation among renovated terrace houses

Purpose The purpose of this study is to explore measures taken by local authorities in curbing poor compliance among renovated terrace houses in the state of Selangor, Malaysia. Design/methodology/approach A qualitative methodology was selected in the data collection and analysis of the study. Seven local authority officers from seven selected local authorities were invited to participate in a face-to-face interview session to share their experience. A focus group was conducted for the purpose of confirming the validity of the data collected during the interview session. The focus group consisted of 32 officers in charge of building control enforcement invited from 11 local authorities within Selangor State. Findings The results show that collecting revenue rather than ensuring compliance is the main objective among the authorities responsible for enforcing the regulations. There are four common tools adopted to penalize the offenders, which are compounds, demolition, prosecution and court orders, with a mix of opinions on their objective achievement. Major obstacles identified in the implementation of the enforcement task are low staffing capacity in monitoring and inspection, difficulties in preparing investigation paper and problems carrying out the demolition of illegal extensions. Originality/value The study uncovers obstacles to enforcing regulations on home renovations. The findings contribute toward improving the enforcement practices of local building control authorities.

When enforcement fails

Purpose This paper aims to present a comparative analysis of noncompliance with planning laws in advanced-economy countries. Most research to date has focused on the widespread phenomenon of “informal” construction in developing countries. However, advanced-economy countries also encounter illegal development, though at different scales and attributes. Because planning law is at the foundation of land-use and urban policies, it is time that the “orphan” issue of noncompliance be adopted by more researchers to enable cross-national learning. The two OECD countries selected for in-depth analysis – Portugal and Israel – probably fall mid-way in the extent of noncompliance compared with the range among advanced-economy countries. Like most OECD countries, the selected countries have generally viable planning-law systems. Their experiences can thus offer lessons for many more countries. Recognizing the limitations of enforcement mechanisms as prevention, the paper focuses on how each of these countries responds to illegal development. Design/methodology/approach The method relies on two main sources: analysis of official documents – laws, policies and court decisions in both countries – and field interviews about practice. In both Portugal and Israel, the authors held face-to-face open interviews with lawyers and other professional staff at various government levels. The interviews focused on four issues: the effectiveness of the existing enforcement instruments, the urban consequences of illegal development, the law and policy regarding legalization and the existence of additional deterrent measures. Findings In both countries, there is a significant phenomenon of illegal development though it is somewhat less in Israel than in Portugal. In both countries, efforts to reduce the phenomenon have been partially effective even though in both, extensive demolition is not exercised. Neither country has adopted a general amnesty policy for existing noncompliance, so both resort to reliance on ex-post revision of statutory plans of granting of variances as a way of legalization. The shared tension between local authorities and national bodies indicates that not enough thought has gone into designing the compliance and enforcement systems. In Israel, a recent legislative amendment enables planning authorities, for the first time, to set their own priorities for enforcement and to distinguish between minor and major infringements. This approach is preferable to the Portuguese law, where there is still no distinction between minor and major infringements. By contrast, Portuguese law and policy are more effective in adopting financial or real-estate based deterrence measures which restrict sale or mortgaging of illegal properties. Originality/value There is very little research on noncompliance with planning controls in advanced-economy countries. There is even less research on the legal and institutional responses to this phenomenon. This paper pioneers in creating a framework for looking at alternative types of government responses to illegal construction. The paper is, to the authors’ best knowledge, the first to present a systematic cross-national comparative analysis and critique of such responses. The authors thus hope to expand the view of the possible legal and policy response strategies available to planning authorities in other advanced-economy countries. The comparative perspective will hopefully encourage, expansion of the research to more countries and contribute to the exchange of experiences between jurisdictions.

Deregulating planning control over Britain’s housing stock

Purpose To apply path dependence theory and analysis to the regulatory framework for private-rented housing in Britain, especially affecting houses in multiple occupation (HMOs) and addressing the increased involvement of the planning system through planning use classes, permitted development rights and Article 4 directions. Design/methodology/approach This paper identifies critical junctures in primary and secondary legislation for housing and planning and analyses individual local authority responses in planning policy documents and tribunal decisions. Findings The rise of the HMO reflects wider changes in society leading to new forms of household and inter-generational inequalities. Local authority discretion and locked-in responses have resulted in different regulatory regimes for housing and planning, recently favouring existing communities of owner-occupiers against HMO residents, seen as transient populations not committed to the neighbourhood. Research limitations/implications Potential for further research on demographics and household formation, and on reviewing planning and appeal decisions involving HMOs. Originality/value The research is apparently the first specifically addressing planning regulation of the HMO from a path dependence perspective, in the context of planning protection of the single-family dwelling house and marginalization of other forms of housing.

Property rights revisited – are narratives the way forward?

Purpose This paper aims to show how property rights predominantly shape discussions about the governance of natural resources and thereby neglect questions of (collective) identities and alternative solutions to govern natural resources. The purpose is to introduce narratives as an alternative approach to the discussion about the governance of natural resources. Design/methodology/approach Guided by the question of how we acquire property and what that tells us about our understanding of to whom natural resources belong to, the paper reviews the history of property rights by looking into property theories starting from Thomas Hobbes, John Locke, Adam Smith, Immanuel Kant and Pierre-Joseph Proudhon. It then takes a closer look at The Economics of Ecosystems and Biodiversity (TEEB) study and the Nagoya Protocol with regard to property rights. Second, the paper introduces the concept of narratives surrounding property rights in the past and present. Findings Property rights are a social concept dominant in the industrialised world. This has strong implications when looking at the way indigenous people look at natural resources. Mostly, property rights are unknown to them or alternative concepts exist. Yet, documents such as the Nagoya Protocol or the TEEB study presuppose an understanding of property rights originating in European property concepts. A narrative approach to property rights introduces new ideas and looks beyond legislation and policies at the stories people tell about property and natural resources, at property stereotypes and identities and what this might entail for future natural resource governance. Originality/value The paper fulfils a need to find alternative approaches to govern natural resources against the background of global environmental challenges.

A legal perspective of current challenges of the Spanish residential rental market

Purpose This paper aims to explain the main difficulties in the Spanish residential rental market becoming a true alternative to home ownership. Design/methodology/approach Currently, the Spanish rental market only meets temporary housing needs; it is very atomized and lacks professionalism. It does not provide an adequate legal framework to fulfil the parties’ aspirations (i.e. stability, affordability and flexibility for tenants; profitability, security and guarantees to landlords). The analysis of this proposition and the resulting proposal are based on six years of research, which started with the TENLAW European project. Findings Overcoming these constrains is essential to double the rate of residential leases in Spain and get closer to the European average, thus achieving a true diversification of housing tenures and avoiding future housing bubbles. Practical implications The paper makes a series of recommendations to legislators and policymakers to draft an adequate legal framework aimed at increasing the housing rental market share. This is based on the experience of mature tenancy markets in Europe, such as the German, Swiss and Austrian ones. Social implications The new proposed legal framework will help to transform the tenancy model in Spain into a functional one, making it more stable, affordable and flexible, while increasing safety and profitability for landlords. The model is also applicable, on a more general level, to all Mediterranean European countries. Originality/value Rethinking the regulation of tenancies, in a context of housing crisis and unaffordability (still a reality in many European and worldwide countries) has valuable potential for making this type of tenure more popular and for avoiding future housing bubbles.

Quality control of constructions: European trends and developments

Purpose This paper aims to evaluate the quality control systems for constructions in seven countries in Europe with the purpose to trace innovative approaches and best practices that can serve as examples for other countries. Design/methodology/approach The paper is based on a series of research projects carried out over a number of years. The research results were updated in 2016 with a desktop research project in seven European countries. The results from this latest project form the heart of this paper. The information is organised into tables that describe and analyse the main features of the quality control systems of the countries (e.g. scope, focus and main characteristics of the procedures and quality demands on building professionals). Findings Several similar trends can be recognised in the quality control systems of the various European Union (EU) countries. Quality control is getting more and more privatised and the control framework is setting checks and balances throughout the construction process. Other findings are that scope and focus of the statutory control is unbalanced. Within the control processes emphasis is put on the safety aspects of complex constructions. Far fewer demands are made on the quality of the builders. Re-orientation of the building regulatory framework seems to be needed. Research limitations/implications The paper only focusses on European countries where private quality control is established and on selected topics. The findings are based on desktop research and not on the practical experiences of the stakeholders involved in the countries studied. Practical implications The paper draws some important recommendations for policymakers in the building regulatory field. It suggests both an enhancement of the effectiveness of the quality control procedure as well as the commitment of builders to comply with the regulations. Social implications The quality of constructions is essential for the wellbeing and safety of its users, its occupants or its visitors. This applies to the whole range of quality aspects: structural- and fire safety, health, sustainability and usability aspects. The analyses and recommendations of this paper aim to contribute to an improvement of the overall construction quality. Originality/value The paper makes an original contribution to the (limited) literature that is available in this field. The results can be used to situate the quality control systems of each member state within the EU, to assess the main trends, and it can be used as a guide to develop strategic choices on possible improvements in each country.

The right to walk in cities, a comparative review of Macau, Lisbon and Las Vegas

Purpose The purpose of this paper is to analyze walking activity and recent efforts at augmenting walkability conditions in the cities of Macau, Lisbon and Las Vegas. Design/methodology/approach The methodology consisted mostly of in-loco observations, pedestrian counts and extensive reviews of the literature, city plans and regulations. Findings The findings include the need to properly design, maintain and retrofit pedestrian facilities, while reducing safety conflicts among street users as well as the establishment and the nurturing of a culture of walking. Research limitations/implications A fivefold international walkability research agenda with implications for other cities around the world is established: the value and the need for comparative studies and best practices; the need for urban design interventions; the cultivation of attractiveness and aesthetics; the implementation of safety, construction and maintenance criteria; and responsible funding programs. Practical implications This paper has twofold implications for stakeholders with direct responsibilities in the design, planning, building and maintenance of streets and public spaces, and for those who simply use those places at their own discretion. Social implications A succinct set of recommendations include the need to augment endogeneity, the need to make cities for people and not for automobiles and commitment to resolving pedestrian safety concerns. Originality/value This paper discusses the factors affecting street vibrancy from both a stakeholder’s and a user’s perspective. The fundamental and inalienable right to walk is analyzed using the WPPFUS framework (walking levels, purposes, primacy of walking, facilities, unique features and safety concerns).

Operational problems and solutions of statutory complex adjudication: stakeholders’ perspectives

Purpose Statutory adjudication was introduced into the security of payment (SOP) legislation as a fast-track payment dispute resolution process with an express object to facilitate cash flow within the construction contractual chain. After more than a decade of the operation of the regime in Australia and Singapore, it becomes apparent that there are many operational problems that jeopardise the intended object of the legislation, particularly in adjudicating complex payment disputes. The aim of this paper is to explore views of the industry stakeholders regarding some operational problems of statutory adjudication of as well as possible solutions. Design/methodology/approach “Expert interviews” method is adopted to collect the empirical data, involving interviews with 23 practitioners from Australia and Singapore. Findings The study identified many operational problems jeopardising the attainment of the object of the SOP legislation such as bias of authorised nominating authorities, short adjudication timeframes, inadequate regulations of adjudicators, jurisdictional challenges, involvement of courts and lawyers and complex drafting of the legislation. The study also analysed the views of industry experts with regard to the opportunities for improvement in the operation of the SOP legislation such as following the Queensland model as amended, and introducing a legislative review mechanism and establishing a peer review process. It also suggested specific amendments to make the legislation a more user-friendly. Practical implications The implication of this study is a better understanding of the most critical problems inherent in statutory adjudication that need serious consideration by the legislatures and policymakers. In addition, the study also provides some practical measures as suggested by the industry practitioners for each identified problem which may stand as a reliable reference for potential reform in the SOP laws. Originality/value There is inadequate empirical research conducted to investigate problems in the operation of statutory adjudication. The study provides original empirical findings which become much necessary nowadays in light of the dynamic moves towards law reform in SOP laws, particularly in Australia. The study provides some practical measures as suggested by the industry practitioners for each identified problem which may stand as a reliable reference for potential reform in the SOP laws.