Statutory regulation of work
| Author | Julian Bailey |
| Pages | 1433-1466 |
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CHAPTER 18
STATUTORY REGULATION OF WORK
Introduction 1434
Compliance 1435
Planning laws 1436
(i) Statutory and regulatory planning controls 1436
(ii) Private controls on building activity 1438
Building regulations – generally 1439
Building regulations – England 1441
(i) Introduction 1441
(ii) Requirements 1441
(iii) Notication, inspection and approval of plans and work 1442
(iv) Consequences of breach of the Building Regulations 1445
(v) Interpretation 1446
Building regulations – Australia 1447
(i) Building Code of Australia 1447
(ii) Certication of work performed 1448
(iii) Order to perform building work 1449
(iv) Fines and penalties 1449
Building control – Hong Kong 1449
(i) Overview 1449
(ii) Building Regulations 1450
(iii) Non-compliant and dangerous building work 1451
Building regulations – Singapore 1451
(i) Introduction 1451
(ii) Preparation and approval of plans/permit to work 1452
(iii) Supervision of work 1452
(iv) Certication of work performed 1453
Licensing and registration 1453
(i) Generally 1453
(ii) Failure to hold a licence or be registered 1458
(iii) Disciplinary action – Australia 1460
Published industry standards 1460
EU construction products laws 1461
(i) Introduction 1461
(ii) Construction Products Regulations 1461
(iii) Consumer Protection Act 1463
(iv) Noise emissions 1464
STATUTORY REGULATION OF WORK
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Illegality and criminality 1464
(i) Illegality 1464
(ii) Criminality 1466
Introduction
18.01 e common law places few restrictions on the performance of construction
work, and the arrangements that a land owner may make to have construction work
performed on his land. Broadly speaking, if the work does not unduly aect other land
owners or persons in the immediate vicinity, an owner of land1 may do whatever he
pleases when it comes to building on it. e common law seeks to uphold, rather than
constrain, a land owner’s right to use and enjoy his land without being told by anyone
else what he can or cannot do on it. It places no general restrictions on who may perform
construction and engineering work, and the terms on which they may undertake to do
so. Furthermore, at common law any person, however skilful or unskilful, experienced
or inexperienced, honest or devious, may carry on business as a building contractor, and
may contract on whatever terms he is able to agree. e construction industry that the
common law would permit to operate (and possibly ourish) may therefore be described
as truly “free market”.
18.02 In the modern world, however, the “free market” of the kind permitted by the
common law simply does not exist, at least not in developed economies such as those of
England, Australia, Hong Kong and Singapore. e reason for this is the interposition of
primary and secondary legislation which (for good reason)2 places limitations on “when”,
“how” and “by whom” construction and engineering work can be performed. In this
book there are many examples given of where legislation impacts on the construction
industry, such as in relation to the permitted terms of construction contracts,3 and health
and safety issues.4 In this chapter consideration is given to the questions of (i) “when”
work may be performed, and the planning and other consents that need to be secured;
(ii) “how” work may be carried out, and the statutory restrictions (under building regu-
lations) which determine the minimum standards to which work must be performed;5
and (iii) “by whom” construction or engineering work may or may not be performed, and
whether a person needs to be licensed or accredited in order to carry out particular work.
1 Or indeed anyone with a derivative title, such as a lessee.
2 Lest building work be carried out in a manner which is unsafe, unsightly, unusable or defective or in such a way
as to have an undesirable impact on the site and surroundings of the area where the work is performed.
3 See in particular Chapters 6 (Price and Payment) and 19 (Home Building Contracts). Dispute resolution under
construction contracts is also heavily aected by statutory adjudication, discussed in Chapter 24.
4 Discussed in Chapter 21.
5 Primary consideration is given to the usual scenario of where a person wishes to carry out work for their own ben-
et (commercial or otherwise). is is to be distinguished from certain situations, which will not be considered here
in any detail, of where a statute positively requires a person to carry out construction or engineering work, whether
or not they would otherwise choose to carry it out of their own accord: see, eg, the Disability Discrimination Act
1995 (UK) (as to which see Roads v Central Trains Ltd (2004) 21 Const LJ 456 (CA); Royal Bank of Scotland Group
Plc v Allen [2009] EWCA Civ 1213).
STATUTORY REGULATION OF WORK
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Compliance
18.03 One of the major issues for businesses in the twenty-rst centur y (including
the businesses of those involved in the construction industry) is ensuring that business
activities are conducted in accordance with all applicable laws. is is to ensure not only
that the reputation and integrity of a business are maintained, but also to avoid the
potentially serious consequences that can ow from a failure to comply with the law. In
the argot of the business world, the topic of compliance with applicable laws is generally
referred to by the compendious term “compliance”.
18.04 W ho is responsible for ensuring that there is compliance with all laws applicable
to a construction or engineering project? Where the law in question is contained in a
statute or subordinate regulations, the person on whom the obligation falls to comply
with the statute or the regulations will depend primarily on the terms of the particular
instrument. For example, a statute may place an obligation upon a specic person to
obtain necessary permits, approvals or licences before work is performed, in which case it
is that person who must obtain them, and bear the consequences under the statute if they
are not. If a statute (or subordinate regulations) does not place the obligation for obtain-
ing necessary permissions on any particular person, the responsibility for obtaining such
permits, approvals or licences may be worked out as a matter of custom or dealing.6
18.05 It is, furthermore, open to contracting parties to agree amongst themselves who
is to bear the responsibility for ensuring that necessary permissions and approvals are
obtained, and that building regulations, standards and other laws are complied with.7 If
this is done, for example, by the parties agreeing that the contractor is responsible for
ensuring that all work performed complies with all applicable laws (including applicable
building regulations), the owner in such a case may have certain contractual rights, as
against the contractor, arising out of a failure by the contractor to comply with the rel-
evant regulations.8 But the contractual adjustment of risk and responsibility as between
the parties will not usually aect the operation of the statute itself, and the imposition
of the burden of obligation created by the statute.9 It is, furthermore, open to parties to
a construction or engineering contract to agree that work is to be performed to a higher
standard than that prescribed by statute, so that an approval of a design or of work by a
6 See , eg, Strongman (1945) Ltd v Sincock [1955] 2 QB 525 (CA), where it was accepted that, as between architect
and builder, the universal practice was that the architect would obtain necessary licences for the performance of
work by the builder. at, however, was an admission made in the circumstances of the project in question, and does
not represent a universal practice in today’s market.
7 One way in which construction and engineering contracts often attempt to do this is by casting on the contractor
the responsibility, in performing its works, to comply with all applicable laws: see, eg, JCT Standard Building
Contract, 2016 edition, clause 2.1 (“Statutory Requirements”); AS 4000–1997 clause 11.1; FIDIC Red Book (2nd
edition, 2017) clause 1.13; JCWC Standard Form of Building Contract, 2006 edition, clause 6.1; SIA Building
Contract, 1st edition, 2016, clause 7. However, under the FIDIC Red Book, clause 2.2, it is the express responsi-
bility of the Employer (where it is in a position to do so) to provide reasonable assistance to the Contractor at its
request to, among other things, further the Contractor’s applications for any permits, licences or approvals needed
to perform the work.
8 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 at [30], per Barrett J.
9 London Borough of Barking & Dagenham v Terrapin Construction Ltd [2000] BLR 479 at 488, per Otton LJ.
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