'Bash a burglar' - Changing the Law – Be careful what you wish for!

If our laws start to support and encourage vigilantism and start to blur the boundaries of acceptable behavior then the whole legal system becomes confusing and loses its credibility. 

Source: Google Images

It is always interesting watching the news, particularly during party conference season and listening to the promises and commitment each party makes in order to try to win us over and secure our support and presumably our vote.  One issue that particularly caught my eye recently was a speech made by our very own Prime Minister no less, at the Conservative Party Conference in Birmingham, who suggested that anyone who is confronted by a burglar in their own home, should have the right to defend themselves, even in circumstances where they may have used excessive or disproportionate force then they still should be found not guilty of the offence.  A suggestion tagged by the BBC’s political editor, Nick Robinson, as ‘bash a burglar’.

Mr Cameron’s speech came on the back of a proposed law change, suggested by Justice Secretary, Chris Grayling in an attempt to tackle the issue of burglars, stating that ‘if you lash out, the law should be on your side’. BBC News (online) reported on 09^th October 2012:

‘Mr Grayling wanted to change the law on tackling intruders as soon as possible, he told the Conservative conference, saying it would be included in a crime bill passing through Parliament this autumn.

It will mean someone who is confronted by a burglar and has reason to fear for their safety, or the safety of their family, and in the heat of the moment uses force that is reasonable in the circumstances but in the cold light of day seems disproportionate, they will not be guilty of an offence.

Mr Grayling told the Birmingham conference: "Being confronted by an intruder in your own home is terrifying, and the public should be in no doubt that the law is on their side. That is why I am strengthening the current law.

"Householders who act instinctively and honestly in self-defence are victims of crime and should be treated that way’

Burglary is a very emotive subject and it is not only the physical damage and loss of personal belongings that have an impact on people’s lives, but also the emotional and psychological effects which can impact people for the rest of their lives.  It would be very easy therefore to consider such a proposal by the Conservative Party as a positive thing and as giving us a way of ‘fighting back’, with the legal system on our side.  However, if we put our emotions to one side for a moment, let us consider the consequences of such a law change.

Freedom is based on the concept of law being there to protect and ensure wellbeing for all.  The credibility of the UK legal system is based upon something referred to as ‘the rule of law’, which in its most basic form, is the principle that no one is above the law. If we start to introduce degrees of ‘reasonable force’, even in self defence into our laws, then this will also introduce a lack of clarity and confusion and compromise the rule of law.   How do you assess what is reasonable force? If the boundaries become blurred this could lead to inconsistency into interpretation of the law and result in people challenging and stretching the boundaries to a point where the law loses it’s balance/equity making it ineffective.

Although a burglar enters a building without permission and you would say at their own risk, it cannot be right that a building owner is in effect given permission by the law to seriously harm them.  This is stepping beyond the boundaries of self-defence and actually making the building owner just as much of a criminal as the burglar!  The proposed law change will mean ‘someone who is confronted by a burglar and has reason to fear for their safety, or the safety of their family, and in the heat of the moment uses force that is reasonable in the circumstances but in the cold light of day seems disproportionate, they will not be guilty of an offence’ This is actually a contradiction in terms as a judge and jury will effectively be assessing acceptable and unacceptable force for the same incident, one at the time of the incident and the other ‘in the cold light of day’! 

There are some who will say that burglars deserve everything they get, and will welcome changes to the law such as those proposed by the Conservatives, and this is exactly what the politicians want people to think.  The problem is however, if our laws start to support and encourage vigilantism and start to blur the boundaries of acceptable behavior then the whole legal system becomes confusing and loses its credibility.  Of course burglary is a criminal offence and causes heartache and misery to many every year.  Anyone faced with a burglar in their home should have a right to protect their home and defend their loved ones but even in this difficult circumstance a building owner should not be allowed to act outside of the current law.  To allow this to happen would be wrong and politicians should be very mindful of making high profile sensationalist proposals that could potentially undermine the very fabric of our legal system.  Our legal system is not perfect, but it has developed over many hundreds of years and it seems to work.  The message to David Cameron has to be ‘if it ain’t broke, don’t try to fix it’, unlike the economy of course!

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Business Development - People, the key ingredient to success!

Without people who can improvise, innovate, inspire, challenge 'the norm', and strive for continuous improvement most businesses would not survive long before being overtaken by their competitors 



Source: Google Images


Success of an organisation can be measured in a number of ways however the most valuable commodity in achieving success has to be it's people.  Without people who can improvise, innovate, inspire, challenge 'the norm', and strive for continuous improvement most businesses would not survive long before being overtaken by their competitors.   It would therefore seem logical for a business to invest in it's people and this should be considered at all levels, not just at a senior level. Everyone has to start somewhere and no matter what career path an individual selects, in order to develop they will require the guidance and supervision of more experienced members of the organisation to help them progress. If you look at a successful business you will usually find that there is a structured training programme for their staff at all levels. This will help fulfil the potential within individuals and also provide a good promotion and succession pathway, allowing internal appointments to be made of people who understand the business, rather than having to make external appointments which can often be expensive.

If a business is 'top heavy', i.e it has a high percentage of senior executive/managers, then what can happen is that when these individual start to retire or leave there may not be suitable personnel 'waiting in the wings' to fill these positions.  An external appointment may then be made, where the new individual will need time to adapt to the business and this can sometimes take many months. It would be much better for a business to have a 'succession plan', where individuals are identified at all levels and trained ready for these opportunities as they arise. Succession planning should start with the most junior of positions and this is where graduate appointments, year out industrial placements and even work experience opportunities should be considered.



Source: Google Images

At my last organisation we would usually appoint 2 or 3 year out industrial placement students each year for our office. The appointment would commence in or around June, however we would normally start the recruitment process in September/October of the year before.  This is when students return to University, and in order to get the best graduates we knew we needed to 'get in early'.  We would approach a select number of Universities who would send us CV's of students who may be interested in the opportunity.  After reviewing the CV's we would then invite those selected to a group workshop, where during the day they would also be interviewed individually.  The workshop enabled us to see how each individual would respond to a number of situations, and during this process we were also looking closely at enthusiasm and attitude.  At this entry level we were not looking for a genius, were were looking for someone with the right attitude and personality, as well as the expected academic aptitude, that had the potential to fit into our organisation.

Over the years we employed a large number of our year out students when they graduated and some went on to become Project Team Leaders and even Associate Members.  A year out placement student has a wonderful opportunity to not only gain experience, but to also secure a permanent position (business finances permitting).  The industrial placement could actually be viewed as a year long interview where the employer has the opportunity to look at an individuals skills, commitment and attitude and decide if they will fit into the business. Not every placement student turned out to be suitable, however this provided us with a highly successful recruitment method, which allowed us to employ top quality graduates who we could mould into our way of thinking, our vision and our business culture. Is  this  an approach that  you're  business  takes? If not, then whilst thinking about the long term future of your business then  maybe this is something that you should give serious consideration too.

At Coventry University we offer a wide range of degree courses covering all disciplines within the built environment (Building Surveying, Quantity Surveying, Construction Management, Architectural Technology, Building Services Engineering, Architecture and Civil Engineering).  Our students are very popular with employers and we encourage our students to secure a year out placement opportunity. We have some excellent students, who will be now starting the process of applying for positions for 2013.  We also have some students who are looking to secure graduate positions.  If you are an employer, who has or is thinking about graduate positions now or in the future, please contact me with details (garyoneill65@hotmail.co.uk), where I will be able to direct suitable students to send their CV's to you.

  
Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Are Housing Providers doing 'Asbestos' they can?

Guest article from Joe Malone BSc(Hons) ICIOB

Group Investment Programme Manager - WM Housing Group

This is the second of a two part article which considers asbestos.  Part 1 published a few weeks ago focused on legal requirements with this article  considering asbestos management.  It is argued that a knowledge and understanding of asbestos is fundamental to being able to interpret testing reports, and potentially result in significant cost savings

 

Competence

Source: Google Images



In part one of this article we discussed how  HSG264 had placed a key focus on competence. The left hand illustration  highlights the need for competent staff to work with asbestos but what is competence? I have a P402 qualification obtained from the British Occupation Hygiene Society so would I class myself as competent to carry out asbestos surveys? Absolutely not is the straightforward answer, for a number of reasons. Competence is defined as having knowledge, understanding and experience but what is key to this concept is that you must be able to prove it by means of records and documentary evidence. The P402 in itself might prove that I have knowledge and understanding of the subject but it does not prove experience; moreover, even site experience in the form of survey work has to be regularly audited under a quality management system. The expectation now is that site surveyors have a minimum of 5% of their survey work audited for quality. Since my employer has neither an audit system nor a quality management system in place then I could not possibly prove competence and therefore have taken a business decision not to carry out asbestos surveys 'in house'. I firmly believe that there are many asbestos surveys being carried out by surveyors who would find it impossible to prove competence. Is it time to rethink your approach to asbestos survey work?



OK, but what about asbestos removal contractors, how do they prove competence? This in itself is another difficult subject area and I believe that a number of licensed contractors would also struggle to prove competence. In writing my asbestos management plan, I drafted a contractor checklist for inclusion in the appendix and I will share the basic list with you to give you a flavour of what you should be looking for in a licensed contractor.

1. They must have a current HSE license to undertake works with asbestos.

 (check license duration and number)



2. They will have a current waste carrier’s license issued by the Environment Agency. (check and record license number)

3. They will be insured to carry out asbestos removal work and will have a minimum of Employers Liability (£10m), Public Liability (£10m), Professional Indemnity (£5m) and fleet cover for the carriage of Asbestos. (Values will vary with individual business requirements)

4. Improvement or Prohibition notices to be checked and where there are recent or serious breaches you should retain the right to select an alternative contractor.

5. Ask the contractor to provide a record of waste consignment notes for the previous month so it can be checked that contractors are disposing of asbestos responsibly.

6. Request that asbestos company provide a full training record for all site staff including site supervisors so that qualifications can be checked.  All site asbestos removal operatives and supervisors will be qualified to UKATA/IATP or BOHS  category C standard (Licensed work). All three organisations are listed on the HSE website as approved partners though each in turn has a glut of affiliate partners who deliver training to this standard. Note that it is also critical to ensure that trained staff are also receiving annual refresher training.

7. Ensure your contractor agrees to provide documentary ‘self certification’ on removal of asbestos.

8. Ensure your contractor agrees to provide ‘project specific’ risk assessments and method statements (RAMS) and therefore agrees to visit site prior to supplying  RAMS on each project. Far too many supply RAMS without even visiting the site in question and this is completely unacceptable.



Source: Google Images

9. Ensure they are UKAS accredited to ISO17020. This is the internationally recognised standard for the competence of inspection bodies. ISO 17020 should not be confused with the quality management standard ISO 9001:2000: the latter is specific to quality management systems and it does not require evaluation of the technical competence of an inspection body. ISO 9001:2000 is not regarded as an acceptable alternative to ISO 17020. Shockingly many are claiming  UKAS accredited asbestos competence based on holding nothing more than ISO 9001. You can check accreditation of inspection bodies and analytical services, but clicking on this link,



10. Ensure that laboratory/analytical services are also accredited  to ISO 17025 for conducting 4-stage clearance inspections and the issuing of reoccupation certificates following asbestos removal or clearance operations.



If you do apply this checklist I get a feeling you will have a higher than expected

failure rate.

Product Awareness

I have on a number of occasions received lab test results that claim that a material defined as Chrysotile is asbestos insulating board and therefore a notifiable product that costs lots of money to remove. Now note the product description below given for AIB.



'Asbestos Insulating Boards (AIB)(trade names ‘Asbestolux’ and ‘Marinite’) weigh around 700kg/m3 and contain from 16-40% amosite (brown asbestos) or a mixture of amosite and chrysotile (white asbestos.) Crocidolite (blue asbestos) was also used in some boards up to 1965'.



You will note that AIB does not contain only Chrysotile and in any event, Chrysotile is the lower risk Serpentine rather than Amphibole type. We have repeatedly challenged given lab results and found that the claimed notifiable product was in fact non-notifiable. On the last occasion, the quoted £20k removal costs were reduced to £1500 on re-assessment. Two key points arise from this observation.

1. Good product knowledge and awareness will cut  your removal costs.



2. You absolutely have to split the removal and analysis function so analytical services are employed directly by you and completely independent of the removal/remediation company. This removes that very obvious conflict of interest.

I have only scratched the surface of what is an incredibly complex subject area but I hope the guidance given in part one & two will help you work more safely and cost effectively.

Joe Malone BSc(Hons) ICIOB

Group Investment Programme Manager


Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

 

Planning Permission - Will a Section 106 Agreement 'Holiday' Stimulate Development?

Developers should not be under the impression that they have an automatic right to have section 106 agreements reduced or removed. Instead, section 106 agreements will only be waived for sites where the Planning Authority considers that the affordable housing requirement has resulted in the whole project becoming un-viable. 

Source: Google Images

Over recent years the process of obtaining planning permission in the UK has evolved and those involved in planning and development will be more than aware of additional requirements for certain developments in the form of section 106 agreements.  The Local Government Ombudsman explain why these requirements are necessary:

‘New development can place additional burdens on the existing infrastructure and resources in the area (such as volume of traffic). It can also deal with existing problems in an area (such as a lack of affordable housing) and allow opportunities to be realized (such as archaeological study). Councils may require developers to make some reasonable financial or practical contribution to the community to address these types of issues. For example, a developer seeking planning permission to build a new private sector housing estate may be willing to contribute to the cost of additional facilities at a local school and provide affordable housing.

This is usually achieved by making planning permission conditional on the developer first entering into an agreement or obligation, more commonly referred to as a “Section 106 agreement”. Once the agreement is signed, it is a legally binding contract, the terms of which can be enforced under contract law by either party against the other’

Source: http://www.lgo.org.uk

In reaction to the stagnant economy and particularly the stagnant UK housing market, Secretary of State, Eric Pickles, recently outlined the government's strategy for housing and growth.  In order to try to stimulate growth into the ailing housing market the government identified a number of proposals included (amongst other things), reducing planning delays and reducing the cumulative burden of red tape. Full details of the government proposal can be viewed at the following link. The strategy provides a brief explanation explaining why each of the proposals are necessary and suggestions for how they may be achieved.  With regard to reducing the burden of red tape, it is suggested that section 106 agreements are the primary cause of delay to many projects:

'It is vital that the affordable housing element of Section 106 agreements negotiated during different economic conditions is not allowed to undermine the viability of sites and prevent any construction of new housing. This results in no development, no regeneration and no community benefits at all when agreements are no longer economically viable. The Government estimates that up to 75,000 new homes are currently stalled due to site viability. S106 is an important tool to provide affordable housing and we welcome the flexible approach that many councils have already taken to renegotiating these agreements where necessary'

Having previously been involved in projects as a consultant advising Housing Associations I am fully aware of the financial impact that section 106 agreements bring.  I can remember one project in particular where the cost of the section 106 requirements imposed on an application for the development of 55 new houses, rendered the project unviable.  Although we tried negotiating with the local planning authority, at that particular time we received no concessions and the scheme did not proceed past the planning stage.  The Housing Association decided to 'land bank', therefore giving them the option to re-visit the scheme

when the economic climate looked a little more healthy.  In other projects developers would 'sell off' the affordable homes part of the development to a social housing provider, who would then take on the management and final fit out for these houses. 

Source: Google Images

Taken at face value the government proposals may suggest that developers can now 'negotiate' section 106 agreements and have all or at least the majority of the section 106 requirements that were imposed on them removed. There are arguments that would suggest that even if this does result in new houses being built again, who in the current ecomonic climate will be able to afford them? Remember, one requirement of a section 106 could be to provide a certain amount of affordable housing.  Therefore if affordable housing is removed from the planning requirement then by default the developer can build more expensive housing. As we are aware lending institutions are not exactly throwing money at those applying for mortgages, so obtaining funding for these 'non-affordable' houses is not going to be easy.

Developers should not be under the impression that they have an automatic right to have section 106 agreements reduced or removed. Instead, section 106 agreements will only be waived for sites where the Planning Authority considers that the affordable housing requirement has resulted in the whole project becoming unviable.  In order to demonstrate that this is the case it is easy to envisage even more work for developers in pulling together financial reports and other evidence to back up their argument.  It will also be very interesting to see how Planning Authorities assess this information and how they decide what the threshold for unviability actually is.

I have argued in previous articles that government policy often seems very short-sighted or blinkered and it seems to be the case here too. Temporarily removing section 106 requirements from planning applications may have a short term impact in terms of some increased development, but is unlikely to have the significant impact that the government suggest.  There are many other influencing factors that will prevent or delay development including other statutory approvals (Building Regulations, Party Wall), opposition from local residents and ultimately financial viability.  Attracting first time buyers to the market is also something that is proving problematic in the current economic climate, and until this is addressed, activity further 'up the chain' will also remain slow.  The government really need to take a holistic approch to stimulating development, rather than the fragmented approach that is often adopted.  Eric Pickles recent strategy for housing and growth suggests a holistic approach, however if any of the individual strategies are not implemented fully, it is likely that the whole thing will collapse like a deck of cards and we will be back to where we started!

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.

Rights of Light – A Dark Art

Guest article from Dr Peter Defoe - Partner and Business Systems Manager at Calfordseaden LLP  

A small group of Surveyors and others practice in the field of rights of light.  Few people outside this group understand what they do and why



Source: Google Images

Rights of Light, as an easement, have existed for nearly a thousand years with the first notion of time immemorial being 1189 and any building with windows constructed prior to this date being assumed to automatically have a right to light through those windows. Fast-forward to 1832 and the Prescription Act formalised the principle that any window that had existed for twenty years or more would have a right to light and this continues to be the case unless there is any legal agreement to the contrary.

In 1904 the law was clarified (Coll v Home and Colonial Stores 1904) to state that the right was only to sufficient light for ordinary purposes. Simply, this means that a property does not necessarily have a right to the same amount of light but that it can lose the benefit of light down to what is considered to be an acceptable minimum.

The main role of a rights to light surveyor is to be aware of the relevant law, to assess the likelihood of an actionable level of loss and to advise the client accordingly. From this they may then be instructed to advise on the possible alternatives, including reducing the scale of proposed development; calculate actual predicted losses; negotiation of settlements or appear in Court as expert witness.

First Contact

Most commonly the first approach, be it from the developer or the affected party, arrives in the form of a question asking if the development is causing or is likely to cause a rights of light issue.

What does the Surveyor do First?

The surveyor needs information and the first action is to accumulate as much as is available.

The quality of any advice is solely dependent on the information obtained so the surveyor is looking for existing and proposed drawings, surveys, and legal documents such as deeds for all properties, photographs and anything else that may be relevant.

From this the surveyor can form an initial view on the following:



·         Is the affected property older than 20 years or might the windows be in the same location as the previous property on the site, which existed for more than 20 years.

·         Is the proposed development close enough and large enough that the daylight to the subject room(s) will be affected?

·         Is there any known reason the window may or may not have acquired a right to light through prescription?

·         Does the room benefit from light through other windows that are unaffected?

 

The Surveyor should then visit the site. All too often the information that has been provided is found to be incomplete and it is only through actually visiting the site that this can become apparent.



One of the most significant factors in assessing loss will be the internal arrangement of the rooms that may be affected. For example, a window in the main part of a typical terraced house next to the rear extension will be in one corner of the room meaning that a large proportion of the room already has limited sky visibility. Very often, when acting for the developer, access is not available and the surveyor has to use local knowledge, possibly sales particulars to ascertain likely layout.

If the surveyor forms the view that there will possibly be actionable loss then the client will have to make a decision as to whether they want to instruct the surveyor to prepare actual calculations of loss. This can be an expensive process and the surveyor will make sure that his client is aware of this before proceeding.

What happens next?



The surveyor will calculate the estimated loss of daylight. The accuracy of this estimate will depend upon the accuracy of information provided. At the low end he counts bricks for window sizes. At the high end he has a cloud survey which, if he is lucky, also gives room sizes. Usually it is a combination of the various methods.

What is being measured is a representation of sky visibility at each point in the room with the threshold value being 0.2% of the total modified sky dome. The sky dome is modified because the value of the light from the sky on the working plane varies with the height above the horizon from which the light comes. Light coming from 45 degrees above the working working plane has a higher value than that coming from near the horizon or above 45 degrees. To account for this in our calculations we treat this as a modified sky dome which, when plotted on a piece of paper produces what is known as a Waldram Diagram (see below).

 

Dr P S Defoe PrD(BE) DipArb FRICS FCIArb MCQI CQP

Information/opinions posted on this site are the personal views of the author and should not be relied upon by any person or any third party without first seeking further professional advice. Also, please scroll down and read the copyright notice at the end of the blog.