As a consultant, specialising in dispute issues – Court cases – and as an expert witness involving mainly landscaping projects that have failed for one reason or another, I see and hear many things. The Professional Garden Consultant’s Association has a small Specialist group of seven highly experiences landscape contractors who also act as Expert Witnesses, and we regularly exchange information regarding unusual or interesting cases, and our combined range of topics and snippets around the country combine to make a unique compendium of experiences.
With the advent of the Construction (Design Management) Regulations (the original regulations were imposed on the Building Industry in 2007, in response to the number of fatal accidents and lack of safety regulation in that field) and was later expanded to include landscape construction in 20015, a new standard was set. Known as the CDM 2015 Regs they control the landscape industry. Any firm carrying out garden construction works – including anything that involves machinery or equipment – must operate under those rules (known as a CDM Plan).
This Plan clearly identifies the person responsible for designing/specifying the works, known as the Principal Designer. This person MUST be appointed by the customer in writing, otherwise the customer retains that responsibility under the Regulations. Once designed and specified, the customer MUST appoint a Principal Contractor – someone who will be in charge of the construction works. I have covered the subject on previous occasions in recent articles in The Landscape Library.
Hopefully, more and more contractors are becoming aware of these regulations, after all, they will soon be seven years old, and ignoring them will no longer be an option. Too many times, I have heard contractors and designers say that they ‘don’t do CDM’ as though it was optional.
I want to bring another set of legal requirements to the attention of designers and anyone who is carrying out garden building. Another Act dating from 2015 in its current form, known as The Consumer’s Rights Act. Everybody has heard of it. Everybody knows it exists, and that it relates to our industry. Previously called The Sale of Goods Act 1979, the new Act expanded the scope of its coverage. It also replaces the old Supply of Goods & Services Act 1982 and it includes The Consumer Contracts Regulations 2013.
It is incumbent on all businesses, large and small, to learn to understand and use these two very important pieces of legislation to their advantage, and avoid falling into the many traps and pitfalls that ignoring them will bring about. Whilst the general public – the customers – may not be aware of CDM, they most certainly know their ‘rights’ when it comes to their benefit. They may not understand all of the ramifications and fine detail, but they think they have power over the tradesperson by citing the Act when trying to intimidate a contractor.
One of the practical benefits of the Consumers Rights Act 2015 is the introduction of ADR or Alternative Dispute Resolution, which is a useful aid to reduce stressful situations, allowing for both Parties in a dispute to achieve resolution without resorting to Court action. Before 2015, this service was only available to certain sectors, including the financial world. Specially trained and qualified independent individuals conduct ADR and hopefully reach a mutually agreed settlement of a dispute.
As a consultant/expert witness, I do not get involved in the Law, neither do I act as an Advocate for either side. I am totally independent, and do not need to deal personally with either CDM or the Consumer Rights Act, but I do need to have a broad understanding and knowledge of them when I am producing reports. Without this general knowledge, I would not know what the lawyers were talking about!
The first thing I need when accepting a commission is information. Details of the project, including a copy of the contract, plans, drawings, bills of quantity, specification, method statements etc. Every piece of information excluding email chains between the Parties unless germane to the matter in hand. I have to compare the ‘promised’ with the ‘delivered’. Has the contractor met the contract? Has the customer met the Terms of the contract?
Section 49 of the CRA requires that the work has been carried out with reasonable skill and care. The definition of reasonable skill and care is related to the specification provided by the contract. If the contract states ‘rough sawn timber’ for example, the customer cannot complain that they really wanted planed and prepared timber. This definition also brings the CDM Regs into play under those projects where it applies i.e. most landscape construction jobs, as the person acting as Principal Designer is responsible for specifying products and materials.
In other words, if the CDM Regs have been complied with, the contractor will have greatly increased their legal strength within the contract, simply because the customer is tied in and cannot say they were not involved with the project. It helps to prevent vexatious claims from customers as they are Party to the proceedings throughout the project under the CDM Plan.
Most importantly, and this is something that so many people do not take into consideration when taking on landscaping schemes believing that they are secure in their working practices, under the CR Act, a trader MUST provide a consumer with a written contract, and the failure to do so will have a negative effect on their position should a dispute arise. The main example of this is so far as the cancellation of a contract is concerned. Unless the consumer is provided with a Right to Cancel clause, they have a period of twelve months and fourteen days from the date of the contract to cancel it. The date of contract is taken from the date a project is commenced, irrespective of any documentation.
This might seem an anomaly at first sight. How can a contract be cancelled if it does not exist? The contract between the contractor and customer will exist if any work has taken place, and monies change hands. The failure to produce a written contract will mean that instead of having a cooling off period, and all the usual insurances that a formal contract brings to the project, by not having a written agreement leaves the contractor open to other issues. Under the Act, a contractor is not permitted to make any profit from a failed project. The only monies taken into consideration are the costs, without any profits.
So many times, a project fails through a wide range of issues, usually involving a lack of communication between the contractor and consumer. (By the term ‘contractor’, this includes Garden Designers, who should also be working under written contracts for the protection of both Parties) Working on trust, taking the word of the customer, treating projects as though they were matters that can be agreed with a handshake over a cup of coffee are the cause of so many disputes.
Under Sections 9 – 11 of the Act, every contract to supply goods is to be treated as including a term that the goods will a) be of satisfactory quality, b) be reasonably fit for the purpose which the consumer made known to the trader beforehand, and c) that they match the description given by the trader. If, for example, the customer required non-slip paving, and the contractor agreed to provide non-slip paving, unless the paving could be reasonably described as non-slip, the trader will be at fault if they supplied paving that was proven to be slippery under any standard test.
The foundations of a successful business will be built on understanding how the legal aspects really work. Get to really know and understand YOUR Terms and Conditions. Know them back to front, every clause, every line. Learn the Consumers Rights Act and use the Construction (Design Management) Regulations to the full extent of their protection. They are the foundations of your working platform.