Emerging trends in construction law at the confluence of academia and industry

Abstract

Engineering UK’s 2018 report on the state of engineering records that in 2016, engineering enterprises generated 23.2% of the UK’s total turnover of £5.3 trillion (£1.23 trillion) and construction had a turnover of £171.91 billion, representing 14.0% of the total turnover produced within the engineering sectorial footprint. The congruence and distinction between the law underpinning construction and engineering in academia and industry is uncertain. The research aim therefore is construction and engineering law compared and contrasted from academia to industry. The author adopted a constructionist or subjective epistemology and relativist ontological stance. Constructivist and pragmatic philosophical paradigms and qualitative methodologies were selected including document analysis, interviews, case studies and focus groups. The construction and engineering law required by professional institutions to be taught in academia to undergraduates were analysed. Some similarity between the legal topics mandated by engineering and construction professional institutions was identified; for example, the legal framework, contract, environmental and health and safety law. The differences are that engineering bodies also require intellectual property awareness and construction institutions incorporate dispute resolution and land law. It was also argued that the importance of European Law should be recognised. Guidance for construction expert witnesses, who are engaged in dispute resolution, arising from three relevant significant documents that were published in 2014 by the Civil Justice Council, the Royal Institution of Chartered Surveyors and the Society of Construction Law was researched. The following were suggested as barriers affecting experts: regulations, budgetary controls, availability of evidence and deadlines. Construction-specific legal risks relevant to SMEs in Europe with a view to manage them were identified. The study confirms that the relevant legal risks for construction SMEs in Italy are: procurement, building regulations, construction contract and dispute resolution. The civil engineering SME case study touched on contract terms, regulations and dispute resolution and the additional issue of intellectual property protection was recognised. Environmental law issues surrounding the regeneration of brownfield land including contaminated land, waste management, water pollution, regulators, environmental impact assessment issues were investigated. Contractors’ standard of design responsibility in current standard forms of contract was analysed and recent relevant case law was reviewed. In conclusion, the overlap in academia, between construction and engineering law of legal topics including legal framework, contract, environmental and health and safety law has been identified. They differ in that engineering bodies additionally require intellectual property awareness and construction institutions include dispute resolution and land law. These findings in academia are reflected in industry. Although framed in a construction law context, the research on expert witnesses also applies to engineering expert witnesses. However, as identified by the accrediting professional bodies, there is a greater requirement for dispute resolution in the construction industry. Environmental law is relevant to both engineering and construction industries. Similarly, current standard forms of contract and recent case law are pertinent to both industries. The congruence and distinction between the law underpinning construction and engineering in academia and industry has been clarified. Subsequent research developed a design, manufacture and construct procurement model for volumetric offsite manufacturing in the UK housing sector and examined the introduction of Brownfield Land Registers in England. Topical and timely research examined the impact of BREXIT and the COVID-19 pandemic on construction law