I have previously mentioned that I recommend maintaining a distinct difference between Garden Advice and Garden Consultancy. This differential is in no way to suggest that one is more important than the other. The crucial difference is in legal weighting. Advice is often provided in passing, walking around a site and answering questions, providing suggestions and possible solutions to customers, without the need for formality or the provision of written reports.
Consultancy reports demand duly researched and evidence-based comment, whether produced as a written Statement of Opinion, a Preliminary Report, an Extant Report, or one of the strictly legal reports under Court’s protocol, and deemed sufficiently expert to be allowed as evidence in a Court or at a Tribunal or Hearing. All such written reports bear weight and place a potentially heavy responsibility on the shoulders of the author.
In order to establish your credentials and ability to be able to write in a professional manner, you will need to produce opening paragraphs headed Personal Profile, in which you should set out your formal qualifications which prove that you are you a suitably qualified person to comment in a professional capacity.
When you are commissioned to produce a written report of any kind, it is essential that you ascertain the purpose of the commission. The explanation supplied by the customer should be established at the beginning or your report, headed ‘Client’s Brief’. This is ensure that if a client requests a report to be written in a specific manner, or for a specific purpose, they cannot then use that report for another purpose – one that you did not intend to satisfy.
A example of this ‘mis-information’ would be a report I was asked to write on the condition of a mixed species hedge in the rear garden of a property. A straightforward commission to visit the site and give an opinion (advice only) was altered to a request to put my comments into writing. For an additional fee, I wrote an article describing the hedge, with its’ merits and suggesting certain improvements, in some detail. The customer stated that he wanted to show his wife, and as he was bound to forget something, could I write it down for him.
Two weeks later, my report, in full, was displayed in a Planning Application, in the case of a heavily disputed case of ownership rights and responsibilities. Fortunately, my report was 100% accurate, and did not diminish my professionalism at all. If I had allowed the customer to influence me in any way, or to comment on anything that was not factual, I could have been called to the subsequent public tribunal as a witness – in a matter on which I had no prior knowledge. Never take any commission or statement at face value, and always qualify the instructions or ‘brief’ supplied by the customer at the start of your report.
STATEMENT OF OPINION
An opinion is a judgement or statement that is not conclusive or evidence backed. True Statements are those that are proven facts.
Statements of Opinion are those of the author, expressing their personal views, and are the least contentious form of report writing. Because they are your opinion, and not presented as facts, they are difficult to challenge – unless of course, you state an opinion on a subject in which you clearly have no knowledge. As an expert, and a professional, charging money for your knowledge, you will be deemed to have proven skills and well-informed opinion at every turn, and if you do not have proven knowledge, you should clearly state that you are not able to express an opinion, and not make any comment. Nobody knows everything, and it common practice to find that certain elements of a commission are not fulfilled.
When providing a Statement of Opinion, you will have already introduced yourself to the reader and shown evidence of your skills and knowledge, and therefore there is no need – unless you have specific and substantial special skills and provable ability in a subject – to deem it necessary to remind anyone of your status.
When providing opinion, it is advisable to describe, in detail, the subject of your attention, and the reasons for making mention. In other words, it is essential to introduce the particular subject and the reason for including it in your statement. An example may be a rotten fence post. In your opinion, the post is rotten and no longer fit for purpose. The reason it is rotten is because a) it was not suitably waterproofed prior to installation, b) it has come to the end of its natural life or c) another reason.
You may then give an opinion on a suitable replacement for the fence post. This may be a) another similar post, but this time properly impregnated under pressure treatment or b) replace using concrete posts.
Always use words, or forms of words, that cannot be mistaken for factual statements, as these are not Statements of Opinion. Always qualify every statement if necessary with words such as ‘in my opinion’, ‘I believe that’, ‘in my mind’, ‘it would seem likely’ or ‘it is not unreasonable to presume’ and similar phrases, that convey your meaning without binding you into a making a Statement of Fact.
PRELIMINARY REPORTS
If, when you arrive on site, and realise that the commission is not going to be a straightforward case of writing a report, due to the nature of the problem (or scope of the works), you should declare that you will need to write a Preliminary Report. An example of this scenario would be an area of subsidence, perhaps a drainage pipe run across a new-build site which has caused problems with collapsed footpaths or paving. The project has clearly ‘failed’ in that the ground was not sufficiently compacted following the installation of the channel.
This is not a commission that can be proven – or ‘evidenced’ in a form of words that could be used in a dispute claim, simply because you have no firm proof of the degree or speed of the subsidence. Perhaps another cause may be involved – a burst waterpipe underground, or land slippage. These types of commissions, those that may be subject to continual or potential changes in a period after you have written your report based on conditions on site at the time of your visit i.e. what you personally witnessed, should not be produced as Statements of Fact or Statements of Opinion.
These should be produced and titled Preliminary Reports and should be qualified as such. In order to make sense of the report, certain factors need to be established, as the foundation for any secondary or subsequent reports. In the case of subsidence or land movement, it will be necessary to set up number of provable ‘trials’, usually involving measurements and levels.
A full site survey of measured areas is essential, as the foundation plan upon which to calculate future movement. In the case of a subsiding drain run, if there are fenceposts available for use in a sensible manner (i.e. reasonably close-by) these may be utilised as fixed points for tensioned builders lines. A screw or nail fixed to a post, with another opposite on the other side of the garden (essential that the nails/screws are easily identifiable) pull a taut line from one fixing to the other.
These fixed points should be marked on a site plan – as crude as you like – provided each fixed point can be identified, numbered and measured from other fixed points
so that a pattern of fixed points, carefully and accurately measured on the site plan, each numbered to avoid confusion when taking fresh measurements in the future. Imagine a gossamer, or ‘cat’s cradle’ of string lines across the garden in the region of the area to be measured.
Once these fixed points have been secured, measure down from the taut line to establish the distance between the line and ground level at that point. Accurate measurements are crucial to enable future readings to prove the changes in level that may have occurred. Mark that figure on the plan, and note the date/s in a separate file or book.
This is only one example of a Preliminary Report. Essentially, any commission that you are called to deal with, that you recognise will be impossible to prove – even as a Statement of Opinion – without further evidence. You can state that you believe that subsidence is taking place, yet only on anecdotal evidence provided by the client, or visual evidence based on the fact that ground is lower in that region, but that is not a useful report to the client. They can take their own photographs to submit in a claim, but they need a suitable physical device to prove future issues.
Once you have organised the annotated fixed points and provided the client with a plan showing the locations and measurements obtained during your visit, they can take their own survey over the coming months/years and monitor the subsidence or movement. In my experience, the client has always called me back to conduct
any future surveys, which may lead to a different type of Report in case of any claim. Whatever happens, your preliminary report will be used as evidence from an independent expert in any claim.
EXTANT REPORTS
Extant means ‘still in existence’, ‘currently in existence’ or ‘surviving’ and is a term used to describe an existing state of affairs. Similar in gravity to a Statement of Opinion in legal terms, extant reports are useful for establishing the current condition of a situation. Examples may be a garden landscaping project that has been prematurely terminated for whatever reason, and a client (landscaper, customer, insurance company, solicitor) requires an independent assessment of the site produced at the time of writing. On a given day, at a given time, this was the state of affairs as recorded by an expert witness (or an independent professional whose expertise is proven, recognised and accepted by all Parties).
An example of an Extant Report may be a planting scheme that has been partially completed, with site clearance, bed preparation, weed killing operations and edging works undertaken to a particular level of success, but planting works interrupted for some reason. A qualified consultant’s report is required to formally state the number of plants in the ground, numbers left unplanted for whatever reason, and a schedule of those ‘missing’ plants listed in a plant schedule forming part of a fixed price quotation.
In other words, how much of the ‘promised’ has been delivered. Using your horticultural knowledge to recognise conditions on site, and identify the plant material involved in the completion of a planting contract, your extant report will be used for valuation and evaluation purposes when deciding costs and other contractual matters, as an independent consultant.
Extant reports are usually not contentious, as all the author is doing is recording facts as they are seen at the time. Photographs are essential, as evidence to verify the comments made by the consultant, and may be presented as an integral part of the written report, or a separate Photograph Appendix, with every item dated and explained in relation to the written word.
EXISTING SITE SURVEYS
Similar in many ways to Extant Reports, Existing Site Surveys generally involve gardens, sites, estates, premises e.g. schools or similar properties that have gardens as an important element in their existence. Extant Reports are mainly used as evidence in cases of dispute, whilst Existing Site Surveys are the precursor to further reports offering advice on making changes and improvements in the well-being of the site in question.
An example of an Existing Site Survey may be a ‘London Square’, where one or more of the famous gardens surrounded by tall metal railings, with locked gates accessible
only to paying residents are to be found. There are usually a number of gardens in a given area, maintained by a Management Company, where each resident is obliged to pay an annual (not insubstantial) fee towards the maintenance and upkeep of the gated gardens, as part of their rental agreement. Although many are owner occupied, their property deeds declare that the owners must contribute to the maintenance of the communal grounds.
Periodically, often heralded by a change in the Management Company, the Residents Association or Committee will call for a Site Survey, to be conducted by an independent expert, to establish how well the site is being run. These surveys are usually comprehensive, including the condition of the railings, garden furniture, footpaths, lawns, plants, features etc. These are primarily fact-based surveys, requiring detailed measurements to establish the type of equipment required to maintain the site, any damage or unsafe matters that require attention. Existing Site Survey Reports do not normally offer any suggestions or proposals for remedial works or improvements in any form.
These surveys do not usually include tree condition reports, as these are deemed to be a specialist subject, which usually means calling in the same tree expert on an annual basis to ensure compliance with various legislation and local by-laws. I have conducted many Existing Site Condition Survey reports over the years, and found them to be a fascinating source of ongoing work, whereby you become ‘the expert’ on those sites.
WORKING PRACTICE SURVEYS
Similar to Existing Site Surveys, WP Surveys are designed to study the existing working practices of an operation or business, including staff abilities and numbers, examining how they manage their work and duties. They usually follow an Existing Site Survey as a natural extension of the facts as discovered during that exercise. Before a Working Practice Survey can take place, a schedule of the existing site conditions is essential. How can you make any recommendations for improvements without knowing your starting point? It would be tantamount to starting a diet without knowing how much you weighed in the first place!
It is difficult to consider producing a Working Practice Survey without having full knowledge of the existing working practices. Even if you are not commissioned to undertake an Existing Site Survey, you will need to establish clearly a starting point on which to build your report. There are occasions when a client will ask you for a WPS without being in possession of the historical facts, and your report must be qualified as such. This starting point will require the customer to go back and research their files to balance them against your words, when the importance of having a foundation will become evident.
There is no short cut, although I recognise that some clients want to handle things their own way, especially if they think they may be saving money! As the consultant, you have to work with information provided to you – or not as the case may be. Sometimes you have to do your best with your given brief…
I have conducted many such Working Practice Surveys, which typically run into several days of research and analysis. Staying with the example of a group of London Squares, begin by identifying each garden site by name or address. A brief description of the garden, including metreage of lawn, shrub beds, herbaceous borders, hedges, site features etc. is essential, as sites vary from one another. Importantly, a statement regarding the current condition of the site; well-maintained/tidy, covered in leaves, full of weedy beds, box hedging destroyed by caterpillars etc. is an essential starting point.
You will need to have sight of the previous year’s timesheets or evidence of number of hours spent on specific tasks e.g. leaf clearance, mowing, weeding etc. in as much detail as you can. Although it may be not be given as a reason for calling you in, somebody somewhere will be number crunching; looking at making savings or rationalising the labour force. Some customers will confide in you and others will not. I always assume that the commission is based around money saving.
A survey of the existing staff is also essential, including their job description and current role in the maintenance of the ground. Are there too many unskilled workers, or too many over qualified staff? Discover what they all currently do with their time, when and how they operate. Does the team manage one site at a time, moving around during the week? Or do they split into teams or individuals, with their own responsibilities and tools/equipment? How do they cope with moving machinery from one garden to the other across busy streets?
Working Practice Surveys may be split into an existing survey, which will differ from the previously mentioned Existing Site Surveys in that they cover the ‘establishment’ or nuts and bolts of a site, not the way in which they are run. It is essential to establish current working methods to be able to decide if they are practical, best practice, best value and best use of staff to enable you to make any recommendations.
This is not a Time & Motion study (necessarily) although I have always managed to produce a list of proposals and suggestions that will indeed, save money, but also improve the working lives of the staff, who have become used to plodding along, and welcome anything to make their lives more interesting (and easy). Examples of improvements may be a) different tools and equipment, b) integrated mowing regimes, c) composting and waste management methods or perhaps by giving each person their own area of responsibility.
CIVIL PROCEDURE RULES (PART 35) REPORTS
There are some Consultants who are willing and able to undertake Court work or handle dispute complaints. Although this work is specialised, those who do carry out CPR work are all recognised experts in their field, and seemingly mainly involved in ‘hard’ landscaping, as so many of the complaints are in respect of landscaping projects that have failed for some reason. These failures may involve a few thousands of pounds, but by the time solicitors and Court fees are included, it may be double the original claim.
Unless a Contractor obtains and follows professional legal advice, and decides to issue a claim directly against their customer (or whoever) without careful thought and preparation, if the Defendant decides to counter-claim, an original claim of (say)
£8,000 can easily become an £80,000 final total after a Court has been involved.
So many people – customers and contractors – think it is a simple matter of filling in a form on-line for a few pounds, then sit back and wait for capitulation by the other side. Once they start the legal ball rolling, it is very difficult to stop it. Court Claims come in two main ‘sizes’; Smalls Claim (for claims under £10,000.00) and Multi-Track Claims for over £10,000.00 which are not handled as small claims, requiring the involvement of a solicitor on behalf of at least one side. Bearing in mind that many customers will have Legal cover on their household insurance, it costs them nothing to fight a claim.
Once a claim is made, it arrives at Court, where the case is allocated a number. Without exception, the Court will require an independent expert witness report, usually paid for by both the Claimant and Defendant equally. The onus is placed upon the warring pair to locate and nominate a suitable Expert Witness. There are very few experts in domestic landscaping in the UK (although there are more Surveyors than landscapers, they tend to work on buildings and not garden construction, and their reports are often – not always – too general) and may be found on the internet.
Both Parties will be instructed to obtain a report produced by the chosen Expert Witness, who will visit the site, compare all documents and specification, quotations, bills of quantity etc and produce a report known as a CPR Part 35, which will be used in evidence by the Court.
These reports are produced in a particular manner by the expert witness, known as Court’s Protocol, involving a series of ‘chapters’ including introducing the site, their personal profile and background, the site conditions as the witness saw them on a given day, together with any information that may be required as part of their brief.
These reports are produced to be read by a third party (The Judge) who has never seen the site and had no particular knowledge about landscaping or garden construction, and it is the responsibility of the report author to ensure that the project is described as thoroughly and accurately as possible to help the Court to arrive at an informed decision.
To underline the importance of CPR Reports, the author must conclude the report with a Statement of Truth. This is a strict form of words, clearly stating that the writer mas made clear which facts are known and which facts are not. It ends with words that describe the penalties for making false statements or anything that may be held in Contempt of Court.
These reports can become a very important source of income for some Consultants, combining years of experience with a strict protocol, which, if followed correctly, should not daunt anyone. Simply tell the truth as you see it, and you cannot go wrong!
DISTANCE REPORTS
A Distant Report may be on almost any subject, although most tend to involve disputes, when the site is too remote to make a physical visit financially viable. Courts only allow the sum of £750.00 for an Expert Witness report in normal circumstances, and this limit can be seen as prohibitive in cases where the project is in a rural part of (say) Wales or Scotland and the Expert is obliged to travel and stay in hotels.
Working only with photographs and quotations, documents, plans, specification etc, Distance Reports are Court’s Compliant, and frequently called for by a Judge. Essentially, a Distance Report is no different to a standard report, except that you need to remind the reader that you are obliged to make your comment subject to the fact that you have not seen the site.
I often receive enquiries from Solicitors, who know of my work, sending me a number of photographs of a site that may or may not contain Japanese Knot Weed. Obviously, some are very clear, whilst others may only have dead stems or broken stems. I can only report on what I can see, and in many cases, I have to reply that I cannot identify any signs of JKW in the pictures… no problem! I still get paid for writing a letter to that effect, which is presented as evidence in the case.
Distance Reports may be considered a Speciality of your practice if you choose to highlight that discipline in your promotional material, I carry out around ten such commissions each year – mainly on JKW.
GENERAL SITE REPORTS
As Consultants, we never know what the next email or telephone call is going to bring. This is the most exciting part as far as I am concerned. You simply never know who will be contacting you, or what the commission will involve. Obviously, I have been fortunate enough to receive all of the above, but many, many different types of problems have come my way. Although in theory, we may be contacted for any reason, it is also true to say that our commissioning clients need help of some kind. Most people commission Consultants to help them solve their problems and difficulties.
I have mentioned a few above, and will cover many more in the pages of the Handbook. Examples of genuine (redacted) cases will be published and background information supplied in other chapters to illustrate the diverse nature of our work. You may wish to specialise, and seek only commissions to suit your speciality, although that will not prevent potential clients from contacting you, as they often do not know what they need!
Whatever type of report you are writing – Report On The Condition of a Site at ???, Distance Report in Respect of ???, Working Practice Survey for ??? etc; each should have the title clearly shown on the front cover, and mention made of the nature of the script during the Introduction to prevent it from being misrepresented or used for any other purpose than that of your original brief.