The Subject is Apply building control Legislation to building surveying.Assignment 4 Essay Example
Building Control Legislation 7
It has been widely argued that regulatory laws are vague and an imprecise term that normally encompasses instruments that are to ensure control sanity and constraint of certain actions. They are a set of rules that are aimed at governing the behavior of a particular subject. Criminal law and administrative law are part of the overarching framework for regulation. Private law if utilized by the legislative bodies relevant to the regulation towards achieving the aims of the regulatory policies can also form part of the regulatory framework. The regulatory laws function to restrict and control the operations of a given market in this sense the building and construction market. It is widely considered as the government’s domain through its agencies that are vested with powers of the public law (Willem ,24).
The essay will focus on analyzing the regulations that were flouted in the Pyrenees Shire Council v Day; Eskimo Amber Pty Ltd v Pyrenees Shire Council  HCA 3 and identify the various weaknesses in the work of the regulatory officers that came to light in the case. The essay will also aspire to give guidelines to the proper regulatory procedures and legislations to be followed to avert a similar scenario.
Chapter ten of the learning manual and legislation will be vital in the provision of the steps to be followed in the identification of the problems at hand. These will include the collection of the relevant information for evidence and formulation of the possible causes of action. This will follow a clear analysis of the dysfunctional consequences of the courses of actions presented before formulating the best steps to have been followed (Tasmanian Polytechnic).
To begin with, the regulatory processes faulted in the observing of the provisions in the Local Government’s Act 1958. Through these, the regulatory processes registered negligence in the duty of care and the omission to exercise the statutory powers by the public authority. The performances of the statutory duties is absent in all the regulatory process. Under the common or the public law the municipal council had the duty to inform the owners of the neighboring property to take the necessary positive actions through notifications to be able to remove the fire risks that they are aware of and minimize the chances of the property from being destroyed or damaged by the fire. This was despite the duties being owed to the sole occupier of the premises (Pyrenees Shire Council).
The breach of the duty in this case has serious repercussions as the health and safety conditions of the building were not suitable for habitation. In the application of the Duty of Care principles the owner of the building had the duty of providing a building structure that is not to cause harm to the occupants. The negligence of this duty by the building contractors has resulted in the damage of property. The assessment of the building by the supervisor reveals beyond reasonable doubts the faults in the fire system and the wall construction. The other negligence and weaknesses identified is the Standard Care. The negligence in the part of the regulatory body was through failure to provide reasonable care through the provision of advice. In addition, the occupier has suffered the proximate loss by relying to the advice (Tasmanian Polytechnic).
The Building Fire Safety Regulation Act was not adhered to as the inspection on the premises revealed lack of professionalism as the supposed hole that was connecting the 2 fire places allowed the entry of flames through the spaces between the identified back walls. In addition, the fire place side walls were fragmented thus creating a substantial fire risk. The structure thus required sound repair for the fire places and the chimneys safe. The fireplace openings are to be sealed and discontinued from use. In addition, the regulatory processes flouted the Public Health Act Regulations and the Fair Work (Commonwealth Powers) and other Provisions Act as the structure’s construction did not observe the rules to have the building to regulate and bar the smoke from penetrating through the walls and into the inner part of the house. As such, this would have caused health related complications to the occupants as the smoke is a health hazard (Pyrenees Shire Council).
It is to this respect that the regulator has to observe the building Act 1993 which aimed at demarcating the role of the Private building surveyors (PBS) and the building surveyors of the council (MBS). The PBS is to take the responsibility of enforcing the regulatory laws and legislations. In this case, the regulatory obligations are to follow the section 212 of the Building Act that states; “Except where otherwise expressly provided in this Act or the building regulations, a council is responsible for the administration and enforcement of Parts 3, 4, 5, 7 and 8 and the building regulations in its municipal district.” As a regulator the process of building and construction must follow the laws which permit the clear observations of the issuance of building permits, building work inspections, building occupation, the protection of the adjoining property and in ensuring the safety standards regulations that are contained in the parts 3,4,5,7 and 8 respectively of section 212 of the Building Act are adhered to (Law and legislation).
The PBS are the appointed sole authorities in the regulation of the building and permit processes and are to take sole responsibility of assessing and identifying the dangerous and uninhabitable buildings and constructions that do not meet the set regulations and legislations. As a regulator it will be my duty to be able to advise on the buildings and constructions that doo not meets the set regulations so that they are marked as not fit to be occupied. This should be done in accordance with section 115 where the regulator who is the enforcer is to refer the matter to the commission on building which is in charge of breaches in construction and non compliance. Despite the regulator having no powers to call for strict measures to be taken on the non compliance, section 178 (d) of the Building Act provides powers for this to happen. This is also contained in the section 198 (Law and Legislation).
The regulator under the Duty of Care at Common Law can claim for the existence of negligence if at all there is verification of a regulation or an Act breach. This can be assessed the existence of damage and loss and if the act that is foreseeable by the council would be as a result of failure to act. The duty of care does not exist in the Building Act Regulations but is accessible in the common law. To avoid falling prey to liability of duty of Care, the regulator is to act in accordance with the section 115 of the Building Regulations Act. The regulator is to act swiftly as notified and apply the Section 212 of the Building Regulations Act. As a regulator, it is advisable to issue an order of emergency in respect to the BC directives (Tasmanian Polytechnich).
Among other issues, the regulator is to assess the degree to which the occupants are to be exposed to danger as a result of the omission of the listed building legislations and rules. It has to be considered under close verification of an expertise who ill also have to assess the available self protection opportunities. In addition, the cost of the exercising of the legislative provided powers has to be assessed. In view of all these, the regulator will have no other choice but to have an Emergency Order issued. In some cases the application of a Building order or Building notice will have to apply and be complied with. This will be done after the assessment of the imminent danger and the enormity of the corollary. The emergency order will be preceded by the sufficing of a General Building Order aimed at rectifying the situation (Wilhem, 94).
The authority for the regulators to seek the application of the Emergency Order is contained in the Regulatory Practices Act, Building Act, Workplace Health and Safety Regulation 2008, Local Government Act,
Building regulations and the Penalties and the sentences Act. The regulator is permitted to issue the emergency orders if he/she is convinced beyond reasonable doubt that the proposed buildings occupation will cause an eminent danger. This has to be done by the regulator who is registered under the MBS and the functions cannot be assumed by a private regulator or building surveyor as he/she has no legal authority or backing to do so. It is however vital to note that this has to be done after an authoritative assessment of the building that is aimed at determining the facts (Tasmanian Polytechnic).
The building notices are issued by the regulators upon a contravention of the regulations of building and or the lack of adherence to the building permit. It has to be done in the presence of and in acceptance with the acceptance of the Private Building Surveyor or a registered regulator/surveyor. Under the section 111 of the building orders, the owner of the notified building is expected to vacate the building and facilitate the protection procedures as provided in the regulations guidelines. If the protection procedures and guidelines that are provided in the notices are not adhered to, the regulator will have to apply the section 112 of the building orders that are permitted to stop the progress of building. The building orders under the Section 113 are to be submitted alongside the building orders for the minor work that is to be carried out in the supposed venue. The building notice is to contain the regulations that are to be done before the issuance of the building notice if the regulator and the private surveyor are of the opinion that the protection work to be carried out in the venue is minor in nature (Law and Legislation).
The regulator is to follow up on the building notice with particular reference to this as it involves the aspects of health and safety. The regulator will have to seek the indulgence of the magistrate’s court if the issues at hand involved the breaches of Sections 16 that involves the progress of work without the building permits and other required documents. The regulator in this case is to ensure that the right processes of acquiring the necessary documents for the building processes are adhered to. This includes among others, the Building Reconstruction Authority Act, Local government Act 1958, Urban Land development Authority Act, Public Health Act, the Registration of plans (H.S.P.) (Nominees) pty. Limited) Enabling Act, Building Regulations Act, Building Act and the Building Fire safety Regulations Act among others (Law and Legislation).
Polytechnic, Tasmanian. «Apply Building Control Legislation to Building Surveying.» Learning Manual July July 2009: 59-62.
Willem, V. On The Intersection Betwen Tort Law and Regulatory Law. London : Springer, 2007.
Law and Legislation: cited on the 8th September, 2011 from; http://australia.gov.au/topics/australian-facts-and-figures/law-and-legislation
Pyrenees Shire Council v Day; Eskimo Amber Pty Ltd v Pyrenees Shire Council  HCA 3.
More Important Things