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The State, the Building Code and the Courts: Prevention or Cure?

Paper number

Philip Britton

December 2013

A revised, retitled and updated version of the paper first published in January 2013, based on a talk given to the Society of Construction Law New Zealand at a meeting in Auckland on 1st May 2012

The paper 'The State, the Courts and Construction Standards: Prevention or Cure?' published in January 2013 as D152, has been revised by the author to reflect recent changes in regulatory frameworks in many common law jurisdictions, as well as some significant case law developments in England on consultants' certificates and in Australia, where rights of action in tort for rectification of construction defects are once more on the courts' agenda. The summary of the earlier paper read: How do the legal systems of the common law world attempt to guarantee that significant works of new construction comply with basic construction standards, and what rights and remedies do they make available if this preventive regime in fact fails? The paper's central focus is a detailed comparison between the situation in England and Wales and that in New Zealand, where the basics of construction standards are very similar to the UK Building Regulations regime; but where the law of tort in relation to construction defects has since the 1990s diverged significantly from the English model. Not only that, but the leaky homes nightmare of recently constructed buildings in New Zealand which are not adequately watertight has put extreme pressure on the legal system and on Government to provide redress. The courts have responded by extending rights of action in tort against original construction parties and against Building Control Bodies. The paper also considers the broader context of protection for homeowners, in which New Zealand is increasingly aligning itself with the Australian model of statutory intervention; and the conceptual difficulties of pure economic loss and duties of care in tort in a construction context.

1. Introduction - 2. Forms of legal intervention - 3. Prevention: standard-setting and -implementing - 4. Cure: remedies for non-compliant construction - 5. Liability when prevention breaks down : Hamlin revisited - 6. Recent developments in Australiasia: tort liability for construction defects - 7. Limitation defences - 8. Conclusions.

The author: Philip Britton LLB BCL is a Senior Fellow, University of Melbourne; Consultant, Fairweather Stephenson & Co Ltd (Aldeburgh, UK); also former Visiting Professor and Director, Centre of Construction Law and Dispute Resolution, King's College London:

Text 67 pages