Landscape Professional Practice

Gordon Rowland Fraser

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317108214
• Edition: 1
• Topic: Architecture
• Subtopic: Aménagement urbain et paysager

Graduate of the Royal Botanic Gardens, Kew, Chartered Landscape Architect, MBA and Barrister, Gordon Rowland Fraser draws upon 30 years of project management, professional practice and teaching experience to provide an uncomplicated and intuitive guide to the business aspects of the landscape profession. An indispensable reference for seasoned professionals, the book will enable the student or novice practitioner to turn their drawing board inspiration into reality without being overwhelmed or afraid of overseeing the implementation of their proposals. Guided by the Landscape Institute's 2013 Pathway to Chartership syllabus, this structured, step-by-step, narrative guide sets out the documentation commonly used within the landscape profession and makes accessible a logical and sequential understanding of contractual relationships; procurement strategies; processes of preparing client estimates and obtaining competitive quotations; of preparing contract documentation and administering formal contracts; general concepts of law as they relate to land management and the landscape profession; of business administration, market appraisal and positioning; and of the landscape consultant's appointment. As an understanding of professional practice is intrinsic to all Landscape Institute accredited courses, this is an essential text for every landscape architecture student during their education and their subsequent journey into professional practice. Those undertaking Garden Design Diplomas will similarly find the book invaluable as they venture into the world of creativity and commerce, while the seasoned practitioner will find it a comprehensive point of reference to add to their bookshelf.

SECTION IV
Project Implementation

9
Understanding Contractual Relationships

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THE AIMS OF THIS CHAPTER ARE TO:

• Explain the roles and responsibilities of the main participants in landscape contracts

• Explain how to identify client requirements and expectations and to establish and maintain a successful professional relationship

• Describe the range of project procurement strategies that may be adopted and the pros and cons of each

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9.1 ROLES AND RESPONSIBILITIES

In approaching project implementation, it is necessary to consider the roles and responsibilities of the three main protagonists within landscape contracts – client, professional practitioner and contractor – since being able to place each of these within their correct context is fundamental to understanding what follows thereafter. Smooth and efficient project implementation requires the professional practitioner to understand and fulfil their own obligations and to be clear what is required from other participants. The professional practitioner is frequently responsible for coordinating the project from start to finish, and must do all within their power to encourage the cooperation of all concerned.

9.1.1 The role of the client

The role of the client is paramount since it is they who ‘set the train in motion’ either by commissioning the services of a professional practitioner, often but not exclusively a Chartered Member of the Landscape Institute, or by entering into some form of agreement with a contractor.

It is perfectly possible and a frequent occurrence, for the client to reach agreement with a contractor without recourse to professional advice. It is, however, very much more common for the client to engage the services of a professional practitioner (discussed in Chapter 7). The professional practitioner then guides the development of the project proposals and contract documentation (discussed in Chapter 12); assists in the choice and appointment of suitable contractor(s) (discussed in Chapter 14); and administers the resultant contract(s) (discussed in Chapter 15).

The initial impetus for a project will come from the client providing an outline brief. The client must indicate the location of the works; this may be anything from an individual feature of a small domestic garden to the infrastructure of a major town centre redevelopment. Likewise the extent of the works; does the client require a professional practitioner to see a project through from inception to implementation and final completion (discussed in Chapter 7), or do they simply want a contractor to construct a new landscape feature such as a path or terrace? The client must indicate the intention of the project; the approach adopted when implementing landscape proposals as a condition of town and country planning legislation will be substantially different to that in respect of a client choosing to enhance the environs of their family home.

The client should be encouraged to provide as much information as they are willing to impart as regards their available budget. This can be a difficult issue on which the professional practitioner will frequently be required to offer sensible and sensitive advice. It is in the interests of all concerned to determine from the outset whether the client’s aspirations are remotely achievable within the funds available. As might be imagined, this is an area in which it is all too easy to inadvertently cause offence. Not surprisingly, therefore, well-developed interpersonal skills can be a considerable asset to the successful professional practitioner.

It is essential that the client indicate their preferred timescale for the project and whether there are particular constraints to be considered. For example, the anticipated opening date of commercial facilities for which delay might prove very expensive. It is vital for the smooth and efficient running of a project (not to mention the ultimate satisfaction of the client) that consideration is given to achievability of such objectives from the outset.

Having entered into an agreement, whether for the provision of professional services or for implementation, the client is obliged to make the site available and to facilitate access so the commissioned services may be undertaken. That a client should make the site accessible may appear an obvious statement but it is, in fact, not uncommon for projects to be delayed even before they begin. Picture a client who wrongly anticipates the completion of one contractor’s works upon which a second contractor’s operations depend. The second contractor is, for example, unable to commence ‘soft’ landscaping works, perhaps the planting of trees, shrubs and ground cover, because the first contractor, engaged to construct ‘hard’ landscape elements, has yet to build the raised planters and beds into which the ‘soft’ components are to be placed. In circumstances such as these it is quite possible for the second contractor’s works to be delayed by a few days, possibly weeks, or in extreme cases (particularly when dealing with bare-rooted nursery stock) until the next appropriate planting season.

Having entered into a contractual agreement, the client is required to pay for the services commissioned. Payment must be made at the agreed rates and intervals provided the works have been completed to the agreed standard. In general terms, the client’s obligations in this respect are exactly the same whether in relation to the services of a contractor or those of the professional practitioner.

The precise detail of the client’s obligations will very much depend upon the nature and content of each particular agreement, a subject covered in detail elsewhere in this book. For the present purpose, it is important simply to appreciate the professional and moral obligation of the professional practitioner to do all within their power to ensure the client fulfils those obligations.

That said, it should be noted that ‘privity of contract’ (discussed in Chapter 2) ensures the professional practitioner will not normally be held legally accountable should the client fail to perform any or all of their duties owed to a contractor or the supplier of goods or services.

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ROLES AND RESPONSIBILITIES OF THE CLIENT:

• Commissioning of services

• Outline brief

• Facilitating access to the site

• Payment for services rendered

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9.1.2 The role of the contractor

A contractor will normally be appointed in order that their resources (labour, plant and equipment, technical expertise, and contacts with the manufacturers and suppliers of materials) may be deployed in project implementation. Project proposals may have been produced by the client, by their appointed professional practitioner, or by the contractor as part of a combined ‘design and build’ package, of which more will be said later in this chapter.

In simple terms, legally binding contractual agreements (discussed in Chapter 2) consist of an offer and an acceptance, together with evidence of an intention to be legally bound, and some form of consideration; most commonly a promise to pay for services rendered, goods supplied, or a combination of the two.

In submitting a formal quotation or tender (discussed in Chapter 14) a contractor is offering to undertake works as they have been described; to the standard requested; at the price quoted; and, unless indicating to the contrary, under the terms and conditions provided at the time of the invitation to tender or quote. For example, terms relating to timescale, quality of workmanship, materials and so on, must be adhered to. The client’s acceptance of a quotation or tender indicates a binding promise to pay for the services rendered or goods supplied.

By the client’s act of acceptance the contractor is bound. In simple terms this means legal action may be taken against a contractor for any failure to perform to the agreed standard, within agreed timescales, or to do so for the agreed amount. This is, in fact, very much an oversimplification and, as discussed in Chapter 15, the majority of contractual agreements provide for terms to be varied, by negotiation between the parties or by some pre-determined mechanism, to reflect the changing circumstances that frequently occur.

Once a formal agreement has been entered into, the contractor will ordinarily be responsible for the employment conditions and the payment of all their suppliers and sub-contractors according to the principle known as ‘privity of contract’ (discussed in Chapter 2). In short, only the parties to an agreement may be held accountable each to the other. Therefore the suppliers of goods and services cannot hold the client to account for failings on the part of the ‘principal contractor’, with whom they reached agreement, even though the client may be the ultimate beneficiary of the goods or services supplied.

An exception to the general rule (that the contractor will ordinarily be responsible for the employment conditions and the payment of all their suppliers and sub-contractors) arises where the client enters into a separate agreement directly with a particular supplier or sub-contractor, as here, too, privity of contract exists. For example, it may become necessary for the client to procure specialist nursery stock in advance of appointing a contractor; perhaps because the stock needs to be grown in the nursery for a season or two before it is suitable for use on the project. The client is likely to agree terms, including those concerning payment, directly with the supplier and therefore remains accountable in this respect. In these circumstances the accountability of any contractor eventually appointed will normally extend only to the handling and installation of the materials rather than their supply.

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ROLES AND RESPONSIBILITIES OF THE CONTRACTOR:

• To undertake work as described

• To the standard requested

• At the agreed price

• Under the terms and conditions provided

• Within the agreed timescale

• To employ and pay suppliers and sub-contractors as agreed

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9.1.3 The role of the professional practitioner

The extent of the professional practitioner’s responsibility will depend upon the detail of their specific commission. The professional practitioner may have been appointed simply to provide design proposals, alternatively to oversee a project from inception through implementation to final completion, or to undertake any or all of the intermediate Scopes of Services (discussed in Chapter 7).

Importantly, in selecting and appointing a professional practitioner, would-be clients should carefully consider qualifications and experience and, in particular, how these affect the limit of professional accountability placed upon the individual or practice. Within the landscape industry the only trading title with any form of legally protected status (and arguably therefore the only industry practitioners able to offer reassurance in respect of professional accountability) is the title of ‘Chartered Member of the Landscape Institute’ (‘Chartered Landscape Architect’ in the alternative), which only professionally qualified members of the Landscape Institute who obtain the Institute’s chartered status are entitled to use (as discussed in Chapter 1).

As a result of the expertise that must be demonstrated in order to obtain Landscape Institute accreditation, Chartered Members of the Landscape Institute are regarded as the leading professionals within the landscape industry. There are however a great many ‘quasi-professionals’, less regulated and frequently less qualified than Landscape Institute members.

A plethora of trading titles are to be found within the landscape industry – ‘landscape architect’, ‘garden designer’ and ‘landscape gardener’ to name but a few. None of these titles have any form of legal status or protection and may be used freely by anyone, irrespective of professional qualifications or indeed of whether they hold any qualifications whatsoever.

The letters designate frequently conferred as a benefit of belonging to one or other industry association, unlike the ‘CMLI’ conferred upon Chartered Members of the Landscape Institute, do not necessarily indicate specific qualifications, experience, or compliance with a designated code of professional conduct.

The foregoing observations are not intended to diminish the efforts or the achievements of some very talented individuals but it is important, for the good of the industry as a whole, for potential clients to appreciate it is only the title of ‘Chartered Member of the Landscape Institute’ (as conferred by the Landscape Institute) on which they may rely for the provision of comprehensively regulated and rigorously accredited professional services.

Professional accountability is also affected by the extent to which Professional Indemnity Insurance (discussed in Chapter 3) underwrites the services provided. All professional practitioners should possess Professional Indemnity Insurance in order to ensure, in the event of what might be a considerable claim in negligence (discussed in Chapter 3) the individual’s insurance, rather than the individual themselves, meets the cost of any damages awarded.

Would-be clients should note Professional Indemnity Insurance is not yet a legal requirement and is very specific as to what activities it covers. When, as often happens, an individual from a related discipline such as architecture is appointed to carry out the work of landscape architecture, care should be taken to ensure that cover in respect of one discipline extends to the other. If it does not, then in the event of a claim, for example resulting from damage to the foundations of a building caused by negligent positioning of an unsuitable tree species, there may be no valid insurance cover in place. Meanwhile, the individual concerned may lack the funds with which to personally satisfy the claim. This should sound a note of caution not only to would-be clients but also to responsible practitioners keen to ensure their personal assets are not put at risk in the event of an unfortunate lapse on their part.

The professional practitioner is frequently commissioned only to develop design proposals and, having done so, the terms of their engagement will have been fulfilled. More commonly, the commission will involve the provision of detailed development proposals, specifications of materials and workmanship, and contract documentation (discussed in Chapter 12).

The professional practitioner is also quite likely to administer the process of obtaining competitive quotations (discussed in Chapter 14) and to assume the contractual role of ‘Contract Administrator’, which normally includes responsibility for the supervision of contractors’ activities and quality control (discussed in Chapter 15).

On more substantial projects it is common for the role of Contract Administrator to be undertaken by someone other than the landscape professional, for example a Resident Engineer if one has been appointed. Likewise, a technically competent individual situated on the site...