Throughout my career, although I have designed around two hundred gardens for private clients or House Building Firms in the domestic sector, including thirty-seven Royal Horticultural Society Show Gardens at Chelsea, Hampton Court, Gardener’s World Live and Tatton Park, I have never considered myself a Garden Designer.
Contractor first, Designer second. For this reason, I have always taken a pragmatic view of my work, concerned primarily with getting paid. Over the past ten years, the majority of my work has been Consultancy, mainly involving dispute issues and problems, and I now think of myself as Consultant first, and Designer/Contactor second. Indeed, now that I have retired from both design and build, I am now a full – time consultant.
The Society of Garden Designers have a comprehensive template for Terms and Conditions for the Designer world, and although they are known as Terms of Engagement, they cover almost every aspect of design work, including a considerable amount regarding copyright and intellectual property rights.
The following Terms and Conditions are not intended to rival or compete with the SGD document in any way. They are simply another version designed to protect you as a professional individual, concentrating on Getting Paid rather than trying to protect your work from plagiarism. I consider copyright issues to be a confusing distraction in many ways, as the words and circumstances under which such claims may be made are too myriad and complex for what should be a simple set of rules under which a designer can operate and run their practice.
This is a purely personal view, and I totally understand why Designers wish to protect their ideas and integrity. My pragmatic Contractor brain has always managed to steer me away from ‘trouble’ with Lawyers and Courts in my own business dealings!
Terms and Conditions should be separated in some way, as your Terms are Your terms of selling Your services, skills and time. How much money per hour/day/project/mile etc; and when and how payments should be made and to whom. Conditions are the structure under which you are prepared to offer those Terms. Keep everything as simple as possible, so that Clients can clearly understand what you are offering and for how much money.
The following Terms and Conditions should be understood and known in detail by the Designer, almost as second nature. I strongly suggest that you do not add, alter or delete any one of them, as they are a combined chain. Coming across a Term you have discovered elsewhere and like the sound of, by adding it into the progressive chain of words, you may negate some part, or all of the rest of the document by repetition or contradiction without being aware of that matter.
Standard Terms and Conditions for Garden Designers
Address of Site
- The Term ‘The Client’ shall mean……………………………………………..who will be responsible for all payments to The Designer unless otherwise notified in writing prior to commencement. Unless otherwise stated in writing, the Client shall be deemed to be the rightful owner of the property as per the address shown above.
- The Term, ‘The Designer’ shall mean…………………………………….who will be responsible to the Client for the works as described in the Contract attached.
- Nothing in these Terms shall affect the Client’s statutory rights as a Consumer.
- All requirements and obligations concerning The Construction (Design Management) Regulations 2015 (CDM) shall be properly identified and dealt with under the Contract documents, and responsibilities designated within that CDM Plan. The CDM Plan shall form part of the Quotation and must be read in conjunction with that document.
- For the purposes and with general regard to CDM, The Designer shall be deemed to be The Principal Designer in respect of The Regulations. This responsibility will automatically end once the Designer has completed the design works involved in the project, when the responsibilities will return to the Client under the Regulations unless or until a Principal Contractor is appointed.
- The Client shall provide access to site for the purposes of carrying out surveying and site evaluation, and the Client shall make the Designer aware in writing of any pertinent matters relating to the property, including any problems or matters concerning the boundaries or neighbours, especially in regard of dispute issues or other site problems or potential problems.
- The Client shall instruct The Designer to carry out certain works, which will be identified and clearly stated in the Designers Quotation. These works are sectioned including Initial Survey and Concept Drawings, Further Drawings up to Final Draft Stage, Detailed Planting Plans and/or Detailed Structural Drawings (or any combination as set out in The Quotation) Payment for each stage shall be clearly stated and settlement made before commencing the next Stage.
- All Specialist Experts that may be required to carry out the survey or technical or legal design elements of the plans e.g. Structural Engineer, Surveyor etc shall be engaged directly by The Client, and settlement of their accounts made directly by The Client. This is an essential element of the Contract to avoid any future matters of responsibility between the Specialist and The Client.
- Any additional works required beyond those on site e.g. research into materials, supply of product samples, sourcing or resourcing in respect of the project shall be properly treated as Additional Works and subject to separate payment as may be required, including travel costs or other disbursements.
- Once each section of the Project is completed, this should be signed off by The Client as being accepted. Any subsequent alterations, additions or reductions to each section, shall be properly treated as Additional Works or Variations and will be charged at the agreed rates as shown in the Quotation.
- The Designer cannot be held responsible for any damage to, or costs involved in, any underground hazards, obstructions or services not made known in writing or apparent on visual inspection prior to commencement of providing the Client with ideas or drawings.
- The Client remains responsible at all times for any matters regarding Licences, Permits, Planning Permission or similar Legal requirements, unless such responsibility is specifically assigned to The Designer (See CDM Plan/Contract document).
- The Designer shall hold and maintain in force, all such Insurance cover as may be required for the project including Public Liability, Employers Liability and Indemnity cover.
- Once the design element has been completed, the responsibilities under CDM Regulations cease to be those of Principal Designer. Should the Client wish The Designer to attend to works other than design, e.g. Planting or Site Supervision, these works must be clearly stated in writing and become subject to separate suitable Contracts, either as a Supervisor or Contractor.
- The value of any claim made against The Designer shall be limited to the value of monies paid to The Designer at the time of the claim.
- This Contract and Terms and Conditions are governed by The Law of England.
Notes and Explanations.
- It is vital to identify the person or persons you are working for. If more than one person is involved e.g. husband and wife, both must be included and named. In the case of a Company, the Director responsible for the work must be identified and named.
- Your Practice or name must be shown in full, including status i.e. Fairacres Gardens Designers Limited.
- Legal Statement included to prove that you understand the need for Legal documentation.
- CDM Plans must be produced. Responsibility under CDM falls upon the Designer (Principal Designer) transferring the legal obligations under the Regulations away from the Client to the Designer.
- Again, under CDM Regulations, once the Designer has completed their work, responsibility returns to the Owner. If and when the Client appoints a Contractor, they become Principal Contractor who will then resume responsibility.
- Never assume that you will be allowed free access to a site, or that you may have unrestricted access at all times during normal working hours. This access must be agreed in writing as part of your Quotation (which form your Conditions).
- A very important point. As Designers, you should be paid for each part of a project in my opinion. It is not unreasonable to request money in advance (mobilization) or to be paid on completion of various sections of the project. As each project will vary in size, it is up to you to decide the tranches you would like to be paid for. This is known as Quantum muriet (As much as it is worth) in legal terms.
A major source of difficulty for Designers is cash flow. Clients are unwilling to settle their current account, preferring to wait and see what comes next. What amendments are to be made. It prevents Clients from saying ‘I don’t want that.’ ‘I have changed my mind and want something different now’ or ‘I have been given this present of a fountain. Can I have a pond please?’
- This is to prevent the Designer from having to bear the cost of engaging outside experts from their own pockets, then trying to get money out of the Client. Bear in mind that you may have not appreciated the need for such experts until later in the survey, and have not included any money for their fees.
In any event, the contract should be between the Specialist and the Client to avoid any dispute issues in the future.
- The Term allows you to charge for any incidental works, including researching and providing samples or discussing problems with a Landscape Contractor. Always ensure that you agree the extra works with the Client beforehand if you wish to claim for the time spent on such matters.
- Self – explanatory.
- This clause prevents you from being claimed against for any problems that were not made known to you in writing before you started work.
- Self – explanatory, or chargeable under Item 9.
- Self – explanatory.
- This is your ‘Sunset Clause’, handing back responsibility under CDM to the Client on practical completion of your design work.
- Self – explanatory. This clause prevents you from being involved in a Joint and Several Claim made against you and a future contractor should a case ever arise.
- Self -explanatory. May be England, Wales or Scotland of course!
All other matters, for example permission to display the finished project on Pinterest or Public Forums etc may be included and highlighted in the Quotation, and should not be included as a ‘Term’.
Your payment fees and structure, payment methods and interims are also matters for inclusion in the main quote, and not hidden away in Terms & Conditions. They are there solely for your protection and to ensure that you get paid with the minimum of fuss.
The Terms and Conditions as set out above remind (or educate) the Client to the fact that they have legal responsibilities they are not aware of under CDM. (Please see CDM under separate cover within The Landscape Library)
And don’t forget that anything you would like to see highlighted in future articles, please email me at email@example.com outlining your request, and if there is not an article already in The Library, I will produce a feature for inclusion with a copy to you direct. Your name or region will not appear in the article……..