My work as an expert witness, conducting around one hundred surveys each year, examining the reasons for failures leading to disputes and Court cases affords me a unique insight into the myriad causes for these very expensive and fraught situations – many of which are avoidable with due care and attention to detailing on the part of the designer.
In the eyes of the Court, the designer and specifier are deemed to be the professionals in all cases. Projects contracted under a Design & Build banner are equally seen to start and end with the designer – The Principal Designer, in the words of The Construction (Design Management) Regulations 2015. This individual may be a Landscape Architect or Garden Designer. The Principal Designer is the person responsible to the customer having once been commissioned and assigned as such, in writing.
This article is all about paying attention to the details of a project, and the very first such detail is the important matter of getting the customer to sign an agreement with the designer, to enable the contract to be legally formed. No signature equals no contract in the eyes of the Law. In the event of any problems, trying to disentangle yourself from an unsigned contract can be extremely difficult, as the designer will be held liable as the only professional involved in the project, often therefore, left alone to cope with any aspects of a dispute.
More commonly, a lack of attention to detail may be problematic if the designer includes cross sectional and technical drawings for a scheme, as they will become a major part of the contract which will be signed by the next person in line of responsibility for a project – The Principal Contractor (who may take over full responsibility, with the Principal Designer signed off and no longer involved) Whereas a Landscape Architect would be automatically expected to produce fully specified and detailed drawings and plans, many garden designers do not include technical documents.
If a designer is commissioned to produce outline/concept plans only, with the contractor left to offer their chosen solutions to construction techniques, this limited involvement should be agreed in writing. Should a designer elect to provide cross sectional/technical drawings, these must be site specific (not simply generic) and fully detailed. Simply drawing an area of decking for example, with no specification including full technical cross sections could leave the designer open to at least partial responsibility in the event of a project failure.
I have chosen decking as an example, as I have in mind a very recent case which is currently going through the Courts. The designer produced a very attractive drawing showing a multi-level series of timber decks, making their design intention clear, with steps up and down, leading from two or more levels across the site. Concentrating on the levels and steps, the designer did not explain how to achieve the desired results. A main deck area was terminated at the entrance to double bi-fold patio doors, with the deck finishing at internal floor level.
Left to the contractor to decide how to construct the (very expensive) series of decks without any considered thought about the technical problems and no instructions regarding water shed and structural solutions, the contractor chose to build a truly level, perfect fitting feature. So perfect in fact, that there was no thought regarding thermal expansion of the composite decking boards.
The result was a disaster, with bowed and buckled boards, fixing screws pulled through the boards, twisted planks and the most problematic of all – the precision cut boards had been placed in direct contact with the very expensive, powder coated patio doors. These had become scratched, with the coating violated and the twenty-year warranty invalidated. Although the contractor was initially held liable, the outcome was more complex, as both the designer and contractor are currently being sued for tens of thousands of pounds under the banner of Joint and Several Liability – all because the designer neglected the vital matter of thermal expansion in their drawing and specification.
Never assume – always ascertain. I learnt this maxim many years ago, drummed in to me by an instructor after I had presumed that something was different from the actual. I see designers who specify certain products for projects without fully understanding the reasons for doing so. Simply because they had seen something used for a purpose, and liked the idea, they copied the same description when in reality, that product should never have been used in the first place! By blindly copying what seemed a good idea can turn out to be dangerous.
A more sensible approach is to establish the purpose or requirement you are trying to achieve. For example, specifying a path with an inbuilt slope may require steps or a certain gradient using a non-slip paving material. Better by far to decide which solution by examining the choice of materials available. Rather than looking through brochures for an appearance, start by checking the slip ratings (Ramp or ‘R’ ratings for shod feet. 9 being the lowest slip rating and 13 being the highest, you should choose from R11 to R13) For particular materials, you should specify that quality as part of the project, the R rating being the most important factor.
If a project fails, and an inquest is held (or the case goes to Court), the first thing that is examined is the specification and quotation documents. ‘Has the Promised been Delivered’ is the maxim used by the Law. Has the landscaper carried out the works as per contract? If the answer is affirmative, the next part of the examination is the specification and plans supplied to the builder.
This is when the importance of ensuring compliance with rules, regulations and formal standards is so important. If you, as the designer, have taken all reasonable precautions to provide the customer the best possible service at the time of producing the specification, you will be likely to be found ‘Not Liable’.
Provided you have acted in good faith, and taken all reasonable precautions in your work, by concentrating on informed detail rather than relying on generalised broad brush/generic methods – pushing the button on the computer that is marked ‘paving’ and printing off the results – you will be seen as acting as a professional.
Alan Sargent FCIHort MPGCA
The Landscape Library Ltd