Law

Question 1

How long are you liable for in contract and tort?

Answer 1

Six years.

Question 2

In what ways is the client responsible for the actions of the landscape architect?

Answer 2

The client is partially or severely legally responsible for the work of his consultants or contractors.

Question 3

Does the client have redress against the LA after 2-3 years if something goes wrong?

Answer 3

Liability in contract and tort lasts for 6 years (Limitation Act 1980).
For contracts ‘under seal’ and ‘deed’ the period for action is 12 years.
For personal injury – 3 years from the date at which the cause of action accrued or the date at which the person injured knew that they were injured.
For latent damage – 15 years (except personal injury.
For claims of libel, slander or malicious falsehood – 1 year.

Question 4

What is the difference between suing in tort and in contract?

Answer 4

Tort refers to duty of care, breach of duty and damage and is not limited to two parties. Contract refers to implied and express terms of a specific agreement between two named parties, unless a collateral warranty exists.

Question 5

Explain Professional Indemnity Insurance

Answer 5

Professional Indemnity Insurance is one of the requirements by the LI, enlisted in the CoC under Standard 12. PII is a cover against allegations of a breach of duty of care. It compensates the claimant and protects the professional.
The need for cover extends to any professional work undertaken outside your main professional practice or employment and to work undertaken by employees, sub-contractors or consultants. It is expected that both you and third parties have an appropriate level of cover commensurate with the work undertaken and to ensure it includes run-off.
PII works for 12-15 years after completion of the last project.

Question 6

What does the term ‘agent’ mean in a contract?

Answer 6

Agent is someone that represents the client and acts on behalf of the client on matters set out in the terms of their appointment.
Landscape architect that act as an agent, must act in the client’s interest and must always remember that acts done by him on behalf of the client will be deemed to be the acts of the client.
If employed as an agent to set up contracts with third parties – preparing a contract between the client and contractor to undertake the construction work of the landscape architect’s approved design proposals. The extent of authority is governed by the type of agency. ‘Special agency’ is usual with landscape architects where the agent and principal contract for one particular commission. Note: the landscape architect is not privy to the contract between client and contractor, and can neither sue or be sued upon it.
Duties include:
- To act in the principal’s interests (not his own)
- Not to make secret profits or take bribes
- Not to delegate his authority

Question 7

What are the landscape architect’s responsibilities as a client’s agent?

Answer 7

The landscape architect is the client’s representative and will act on behalf of the client on matters set out in the terms of their appointment. They must act in the client’s interest and must always remember that acts done by him on behalf of the client will be deemed to be the acts of the client.
Their responsibilities are expressed in various ways:
- Professional judgements, ethics and values
- Professional skills, practice and advice
- Legal knowledge and compliance
- Organisation and office management
- Project management and coordination
The LI’s Charter of Incorporation par 5(2).
If in administering a contract:
- to act in the principal’s interest (not his own)
- not to make secret profits or take bribes
- not to delegate his authority

Question 8

What standard of work is expected of the landscape architect?

Answer 8

That of a skilled professional person – conduct in accordance with the Code of Standards of Conduct and Practice.
The Landscape Architect will use reasonable skill, care and diligence in fulfilling their service to the client in accordance with the normal standards of the profession (LCA: Clause 3.2 Duty of Care).
Refer also to Standard 9 : ‘perform your work with due skill, care and diligence’.

Question 9

What does it mean to be an Agent of the client? Can you make decisions on behalf of the client?

Answer 9

Agent is someone that represents the client and acts on behalf of the client on matters set out in the terms of their appointment.
Landscape architect that acts as an agent, must act in the client’s interest and must always remember that acts done by him on behalf of the client will be deemed to be the acts of the client.
If employed as an agent to set up contracts with third parties – preparing a contract between the client and contractor to undertake the construction work of the landscape architect’s approved design proposals. The extent of authority is governed by the type of agency. ‘Special agency’ is usual with landscape architects where the agent and principal contract for one particular commission. Note: the landscape architect is not privy to the contract between client and contractor, and can neither sue or be sued upon it.
Duties include:
- To act in the principal’s interests (not his own)
- Not to make secret profits or take bribes
- Not to delegate his authority

Question 10

What are the essentials of a valid contract?

Answer 10

Intention, consideration (something must be paid or exchanged for the contract to be binding and enforceable in law), agreement (offer and acceptance, revocation – offer withdrawn or revoke up until acceptance, lapse of offer – deadline on offer); Express and implied terms.
Other criteria for valid contract – validity, capacity to contract, consent, legality of object, object of the contract, necessary formality.

Question 11

How can a contract be discharged?

Answer 11

A contract can be discharged through
Agreement – mutual decision.
Performance - refusal or failure of a party to perform his part of the agreement or repudiating his liability.
Breach – either because one party fails to perform their part of the agreement or repudiates their liability.
Contractual stipulation – eg. when contract entered into for a specified period of time it is discharged at the end of that period.
Frustration – illness of one party.
Lapse of time – contracts discharged by one party giving reasonable notice – for contracts of indeterminate duration (i.e. ‘contract at will’).

Question 12

What types of insurance should a landscape architect be aware of?

Answer 12

PII – Professional Indemnity Insurance – cover against allegations of a breach of duty of care e.g. Negligence
Motor Insurance – cars owned and operated or business purposes
Public liability (third party) insurance – covers third party in the event of injury when visiting the practice
Building and Office contents insurance – covers damage to buildings, fixtures, fittings; damage or theft to property; computers, data and business interruptions.

Question 13

What is a professional negligence?

Answer 13

Careless infliction of harm or damage; failure to fulfil their professional duty of care and perform to the normal standards of the profession.
For professionals, the standard of care is that of a skilled man exercising and claiming to have a special skill.
1. Personal injury – a LA may be liable if his negligence causes foreseeable personal injury to any foreseeable victim
2. Latent damages – liability to subsequent purchasers if faulty design or lack of inception of construction works – but only if defect was not known at the time of purchase
3. Economic loss – economic loss as the direct result of the professional’s advice

Question 14

What is the landscape architect’s legal responsibility?

Answer 14

LA has a legal responsibility to society, client, the landscape profession, LI and contracting or other professional organisation.
She/he is liable in contract, as a member of a practice (depending on the type of practice and the title), as an employer, as an occupier, as a professional (by exercising CDM) and in tort (to do with civil liberty – exercised in the absence of contract – sometime both).

Question 15

How can the landscape architect protect himself or herself from their legal responsibility?

Answer 15

A landscape architect should hold a PII, but she/he will always hold a legal responsibility to society, client and profession. Exercise your duties in accordance with professional standards set out by your professional organisation (LI).

Question 16

What would you do if a retaining wall collapsed on your site?

Answer 16

Ownership of any boundary wall needs to be clarified both at the design stage and in-service.
When retaining wall located on a boundary:
- a landowner who owns a retaining wall that supports his neighbour’s higher land is subject to an implied (unless it is expressly stated in a deed) easement and owes a duty of support to his neighbour’s land
- a landowner who owns a retaining wall that supports his own land is under a general duty of care to maintain the wall in such a condition that his land is prevented from collapsing onto his neighbour’s lower land
If the wall belonged to your neighbour and you haven’t done anything to make it collapse, then depends on whether your neighbour knew (or should have known) that the wall was in danger of collapsing. Landowners must do what is fair and reasonable to prevent or minimise known risks to their neighbours but they are not expected to carry out extensive investigations;
Party Wall Act 1996 - If damage is caused to the adjoining owner’s (neighbour’s) land or property (party wall, party structure, party floor etc.), an adjoining owner can either insist that the building owner makes good that damage or he can request payment in lieu. The amount of any money to be paid to the adjoining owner in this situation is to be determined by the surveyors.
Before collapse: If it can be shown, or suspected, that an existing wall is dangerous then a Local Authority (LA) in England and Wales has powers under the Building Act to take action but has no duty to identify them. One suggestion is that dangerous free-standing walls should be defined as ‘Statutory Nuisances’ making it a duty for LA’s to inspect their area and take action by issue of statutory notices.

Question 17

What information would you supply to apply for indemnity insurance?

Answer 17

• Information on the professional work undertaken outside your main professional practice or employment and to work undertaken by you, employees, subcontractors and consultants
• Largest commission in the past five years
• Projected schemes in detail, including the nature of the work (home and abroad)
• Conditions of appointment
• Forms of construction contract used
• Turnover of practice
• Number of employees
• Whether the practice deals with pollution, as an additional premium is levied for pollution liability
• Any claims/actions made against the practice

Question 18

At what level do you undertake Professional Indemnity Insurance?

Answer 18

The LI requires registered practices to take out PII (as do local authorities). This insurance ensures that practices have sufficient funds to me their financial obligations should an action for negligence be brought against them.
Employees also have a duty under CoC.

Question 19

What is the basic agreement between the landscape architect and the client?

Answer 19

Standard Document such as Landscape Consultant’s Appointment 2013.
You can also use other standard appointment documents such as:
- Consultnat’s Cotract (CIC Cons Con): Contract for the Appointment of Consultants on Major Construction Projects 2011
- JCLI Conusltancy Agreement for a Home Owner/Occupier, published for JCLI by the Society of Garden designers

Question 20

What is the nature of services promised by the landscape architect?

Answer 20

Scope of services prepared by the LI reflects the range of services offered.
It is split in stages to enable the landscape consultant to be responsible for either design through to contract administration or design through to non-administrative post contract services on D&B.
S1: Landscape Design and Administrative/ Post Contract services – feasibility design brief/concept proposals/ design development/technical design/Contract prep/ completion
S2: Masterplanning Services – Baseline Info, strategic framework/ preparation of design and written report, implementation strategy
S3: Landscape and Visual Impact Assessment services – Baseline studies/ identification of impacts, evaluation/ mitigation/report.
S4: Landscape Planning Services – landscape characters assessment/ pre-planning L&V feasibility/ LVIA Audit/ EIA coordination
S5: Landscape Management Plan Services – Scope/baseline/management plan
S6: Stakeholder Engagement Services – baseline/ communication and consultation process
S7: Landscape Maintenance – Scope/ tender docs/ contract prep, mobilisation/ maintenance contract duties

Question 21

To what extent is a landscape architect liable for the outcome of his work?

Answer 21

Landscape architect is liable in contract and in tort, as well as an employee of a practice or employer, also liable as an occupier, finally – vicarious liability.
When in contract, he has a
- duty of care – to make reasonable efforts to produce desired results
- Strict duty – guarantee that the desired result will be produced, making the promise liable even if the failure to produce it cannot be shown to be his or her fault

Question 22

How would you assess whether or not a landscape architect had acted negligently?

Answer 22

Courts will assess the facts of each case to verify first that a duty of care exists: this is a matter of fairness and involves weighing up the relationship of the parties and the nature of the risk to the public. In assessing breach of duty of care, the courts consider two main factors: the likelihood of injury or damage and its seriousness. A civil claim may become criminal f a breach was so grossly negligent that it constituted a criminal disregard for human life.

Question 23

What criteria determine the premium of Professional Indemnity Insurance?

Answer 23

• Schemes in detail to understand nature of projects/work undertaken by the practice/landscape architect (abroad and home)
• number of employees in the practice
• practice’s turnover
• largest commission in the past 5 years
• conditions of appointment
• types/forms of construction contracts used by the practice
• whether practice deals with pollution as pollution liability is levied separately
• claims/actions raised against the practice

Question 24

Describe the different types of liability of a landscape architect.

Answer 24

Liability in contract – LA is required to act in accordance with the contract between LA and client; he has a duty of care (to ensure reasonable care is taken in producing the desired result; strict duty – guarantee that desired result will be produced)
Liability in tort – negligence, nuisance, trespass, strict liability and libel
As a member of a practice – depending on role – if a partner/ director/ stakeholder/ employee in limited or unlimited or public; generally needs act in accordance with employment contract
As an employer – defined by contract of employment; statutory rights, Equal Pay Act 1970, National Minimum Wage Act 1998, Race Relations Act 1976 etc.
Vicarious liability – work conducted by employee for you (employer) in the course of their employment.
Statutory liability – duties imposed by Act of Parliament; The defective Premises Act 1972; The Supply of Goods and services Act 1982; CDM
As an occupier – Health and Safety at Work act 1974; Occupier’s Liability Act 1954

Question 25

What constitutes a legal contract?

Answer 25

• Intention
• Consideration (something must be paid or exchanged for the contract to be binding and enforceable in law) – can be bilateral or unilateral contract
• Agreement (offer and acceptance, revocation – offer withdrawn or revoke up until acceptance, lapse of offer – deadline on offer);
• Express and implied terms.

Other criteria for valid contract – validity, capacity to contract, consent, legality of object, object of the contract, necessary formality.

Question 26

Can you tell me why the case of Rylands v. Fletcher in 1866 is relevant to Landscape Architects?

Answer 26

It is an example of strict liability in tort (which does not require the proof of negligence or intent on the part of the wrongdoer).
‘the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.’
It has been applied to water, fire, explosives, poison etc.
The accused is not liable if the ‘escape’ could not reasonably have been foreseen. A landscape architect would need to be able to demonstrate that he or she made an assessment of risk during design construction and maintenance – assessing risk means evaluating the likelihood of injury and damage and the seriousness of such harm.
For LA – implications of plant species ‘escaping’ from the land where they were planted. In addition to any strict liability, the Natural Environment and Rural Communities Act 2006 (Wildlife and Natural Environment Act 2011 for Scotland) created an offence of allowing invasive non-native species to spread – criminal offence and fines up to 40,000 and 12 months in prison.

Question 27

Explain when strict liability may be relevant in a contract situation?

Answer 27

Liability in tort and in contract is separate, however one can be sued in both simultaneously.
It is your duty under contract to fulfil your duty of care (to ensure reasonable care in producing the desired result) and strict duty (guarantee the desired result will be produced), so if negligent legal advice on aspects of the law relevant to landscape architecture is given then rise to liability claims is given.

Question 28

What liabilities does the LA have?

Answer 28

LA is liable:

• In contract (breach of contract)
• Statutory (under Planning legislation or Health and Safety legislation)
• Vicarious (for employees)
• As a professional (e.g. exercise of reasonable care)
• In tort (negligence, libel, nuisance, trespass, strict liability)

Question 29

What is a collateral warranty?

Answer 29

• Legal agreement which stands alongside main agreement between client and landscape architect
• Forms a legal responsibility to the client and funder / tenant / purchaser (third party)
• It must be no more or no less onerous for the designer than that which exists between designer and client

Question 30

How is a Landscape Architect involved in Site Safety issues?

Answer 30

LA/ designer CDM duties apply from Stage 1 until completion; all risks either eliminated, reduced or controlled – designer to ensure listed accordingly in H&S file; modify or prepare designs to eliminate, reduce or control risks that may arise during construction phase
Additional duties see paragraphs 72-93 of HSE Guidance on CDM Regulations

Question 31

What are your duties under the CDM Regulations?

Answer 31

Depending on your role – client (domestic or commercial), designer, and principal designer (if one or more contractors), contractor, principal contractor, workers.
If designer, then your duties are: to eliminate, reduce or control foreseeable risks tht may arise during construction and maintenance/use of building, ensure appropriate information is included in H&S file.
If principal designer (requires a written appointment from client) – designers duties plus planning, managing and monitoring and coordinating H&S in pre construction phase, liaising with P/C in construction phase, ensuring designers carry out their duties, prepare H&S file at PC.

Question 32

What are the roles of Principal Designer and designer with regard to CDM?

Answer 32

Under CDM, designer’s role is to prepare or modify designs for a building, product or system relating to construction work. Duties include: eliminating, reducing or controlling foreseeable risks that may arise during construction and maintenance/use of building, ensuring information is included in H&S file.
Under CDM, principal designers role is appointed by the client can be an organisation or an individual with sufficient knowledge, experience and ability to carry out the role. Duties include: designers duties plus planning, managing and monitoring and coordinating H&S in pre construction phase, liaising with P/C in construction phase, ensuring designers carry out their duties, prepare H&S file at PC.

Question 33

How do liabilities of a Principal of a Private Practice differ from those of a Chief landscape officer in a local authority?

Answer 33

Depending on the form of practice, a partner or principal in private practice may have legal responsibility for the actions and debts of the practice as a business in addition to responsibility as landscape professional, whereas a senior/Chief landscape architect in a local authority is liable only for the actions related to his or her profession and any delegated authority they may have, not for the local authority as a whole.

Question 34

How would PII be calculated?

Answer 34

Common claims covered by PII are negligence, misrepresentation, violation of good faith and fair dealing, and inaccurate advice, PII also covers the obligations of the designer set by CDM Regulations under civil law for breach of contract or negligence – it does not insure against a breach of criminal law.
The level of cover should commensurate with the work undertaken and shall ensure that it includes run-off cover.
Before renewal of policy, insurer sends out questionnaire which determines the premium dues based on:
- Largest commission in the past five years
- Projected schemes in detail, including the nature of the work (home and abroad)
- Conditions of appointment
- Forms of construction contract used
- Turnover of practice
- Number of employees
- Whether the practice deals with pollution, as an additional premium is levied for pollution liability
- Any claims/actions made against the practice
The larger the organisation, the greater the chance of failure or number of claims, therefore the higher the premium.

Question 35

What are the differences between liabilities for negligence and debts in a limited company and partnership?

Answer 35

Claims against negligence of a landscape architect are covered by the Professional Indemnity Insurance of the Landscape Architect, either in Limited Liability Company or Partnership, if in company then responsibility of the employer, in partnership – responsibility of the member. Member of partnership is not liable for the torts or obligations incurred by the LLP, other than in tort for their own negligence. It is only possible to sue the LLP in contract and not the member. However, the member can be sued under the law of tort.
Debts in a Limited Liability company are due by the company which is a legal body in itself, however shareholder are only liable for the debts of the company to the amount unpaid on their shares; in partnership – a member is liable for the debts of the LLP in the event of it being wound up to the amount which he has contributed to the LLP as capital.

Question 36

How would you decide if CDM Regulations apply?

Answer 36

CDM 2015 applies to all construction projects in Great Britain as a whole, from concept to completion, including works carried out in territorial sea and the renewable energy zone.

Question 37

In what way is the LA legally responsible? Explain the reasoning behind ‘Rylands and Fletcher’.

Answer 37

Level of responsibility of the landscape architect in contract depends on his appointment but general he has a duty of care (to ensure reasonable care to produce the desired result) and strict duty (guarantee the desired result is produced).
Rylands & Fletcher is an example of strict liability in tort (which does not require the proof of negligence or intent on the part of the wrongdoer).
‘the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.’
It has been applied to water, fire, explosives, poison etc.
The accused is not liable if the ‘escape’ could not reasonably have been foreseen. A landscape architect would need to be able to demonstrate that he or she made an assessment of risk during design construction and maintenance – assessing risk means evaluating the likelihood of injury and damage and the seriousness of such harm.
For LA – implications of plant species ‘escaping’ from the land where they were planted. In addition to any strict liability, the Natural Environment and Rural Communities Act 2006 (Wildlife and Natural Environment Act 2011 for Scotland) created an offence of allowing invasive non-native species to spread – criminal offence and fines up to 40,000 and 12 months in prison.

Question 38

What is CDM and what are duties of those involved?

Answer 38

CDM Regulations 2015 are the main set of regs for managing the health, safety and welfare of construction projects.
All projects must have: workers with the right skills, knowledge, training and experience; designer, in charge of preparing and modifying design; contractor providing appropriate supervisions, instruction and information; written construction plan; principal designer and principal contractor (if more than one contractor); a health and safety plan.

Question 39

You have designed a play area, which is nearing completion, what information would you expect the contractor to supply towards the Health and Safety Plan?

Answer 39

They must provide the principal designer with any relevant information that needs to be included in the health ad safety file.
If principal contractor = principal designer (or P/D appointment finishes before the end of the project), then P/C takes responsibility for ensuring that the file is reviewed, updated and revised for the remainder of the project. At the end the P/C must pass the file to client and ensure the client understands the structure and content of the file and its significance for any subsequent project.

Question 40

Why were the CDM regulations introduced?

Answer 40

To avoid accidents on site (during construction and after). CDM is the main set of regulations for managing the health, safety and welfare of construction projects.

Question 41

What is a collateral warranty?

Answer 41

• Legal agreement which stands alongside main agreement between client and landscape architect
• Forms a legal responsibility to the client and funder / tenant / purchaser (third party)
• It must be no more or no less onerous for the designer than that which exists between designer and client

Question 42

How can PII constrain the work that you do?

Answer 42

If you wish to undertake work that is not covered by your insurance then you need to know your insurer know as soon as possible for them to provide you with a quote. Also necessary if you are using a non-standard form of appointment/contract.

Question 43

Who has responsibility for security and accidents on a building site?

Answer 43

Client (domestic or commercial), designer, principal designer, contractor, principal contractor, workers – each has a duty under CDM.
Principal designer is employed to plan, manage, monitor and coordinate H&S in pre construction phase, liaise with P/C during construction phase and provide client with H&S file at handover.

Question 44

I am domestic client, with a large garden, and wish to carry out landscape works to the value of 250k. What are the implications of CDM and what advice would you give?

Answer 44

Domestic client’s duties are normally transferred to the contractor/principal contractor – reflecting the size of the project and nature of risk.
Client needs to ensure a written appointment is in place.
Clients needs to be prepared to take on the role of the designer and principal designer (managing the project in pre construction phase) unless appoints accordingly.
Principal contractors duties include: planning, managing, monitoring and coordinating h&s in the construction phase of a project (liaising with client and P/D; construction phase plan; coordinating contractors work; providing site inductions; measures to prevent unauthorised site access; welfare facilities; engaging and consulting workers on their h&s and welfare).

Question 45

Can you explain how PII cover would be determined and premiums calculated?

Answer 45

Professional Indemnity Insurance is one of the requirements by the LI, enlisted in the CoC under Standard 12. PII is a cover against allegations of a breach of duty of care. It compensates the claimant and protects the professional.
Common claims covered by PII are negligence, misrepresentation, violation of good faith and fair dealing, and inaccurate advice, PII also covers the obligations of the designer set by CDM Regulations under civil law for breach of contract or negligence – it does not insure against a breach of criminal law.
The level of cover should commensurate with the work undertaken and shall ensure that it includes run-off cover.
Before renewal of policy, insurer sends out questionnaire which determines the premium dues based on:
- Largest commission in the past five years
- Projected schemes in detail, including the nature of the work (home and abroad)
- Conditions of appointment
- Forms of construction contract used
- Turnover of practice
- Number of employees
- Whether the practice deals with pollution, as an additional premium is levied for pollution liability
- Any claims/actions made against the practice
The larger the organisation, the greater the chance of failure or number of claims, therefore the higher the premium.

Question 46

An excavator hits a live electricity cable that also affects a TPO protected tree on your site. Can you explain who is liable? What would be your course of action?

Answer 46

Damage should have been foreseeable and care taken when building around tree with therefore client is liable. Unless D&B then contractor. A fee needs to be paid. If, however, survey did not identify live electricity cables then surveyor could be sued for negligence (by the client, separately).
If you deliberately destroy a protected tree, or damage it in a manner likely to destroy it, you could be liable to an unlimited fine. You could also be fined if you cause or permit such work. Other offences can lead to fines of up to 2,500.

Question 47

What roles can LA play I contracts?

Answer 47

Traditional
- Straight forward design and contract admin
- Act as advisors to other professionals who are administering the contract
Design and Build
- Act as designers to the client and then get ‘novated’ to the contractor in ‘Design and Build’ Contracts (advisory role), or continue working for the client as their advisor during implementation
- Work directly for the contractor from commencement of the design through to implementation. ‘Design and Build’ (advisory role).

Question 48

What would be your action, when uncovering a risk related to design, under the CDM regulations? How might a design be affected as a result of this? Give examples.

Answer 48

Designer’s duty under CDM is to eliminate, reduce or control foreseeable risks during construction, maintenance and use once built; cooperate with principal designer and principal contractor.
If new risk arises, the designer may have to amend / modify design to eliminate, reduce or control the risk.
Client’s request- suicide prevention measures to be applied – designer notified by client. (Project Mural)

Question 49

What are your H&S duties as a landscape architect?

Answer 49

Different duties if employer, self-employed, employees, people in control of premises and designers, manufacturers, importers of articles used for work.
LA: to factor health and safety in during the design process, mitigate risks and hazards; also during construction, use, cleaning and maintenance; consider the builder/user/public/bystanders.
Employee’s duties are to exercise reasonable care to him/herself and fellow employees and cooperate with employer in carrying out statutory requirements.

Question 50

What are the parties covered under CDM and what are their roles and responsibilities?

Answer 50

Client (domestic and commercial)
Designer
Principal designer
Contractor
Principal Contractor
Worker

Question 51

What are your liabilities as a landscape architect? How are you protected?

Answer 51

Liability in contract
Liability as a member of a practice
Liability as an employer (vicarious)
Statutory liabilities – CDM Regulations 2015 LA’s liabilities; under Planning legislation
Liability as an occupier
Liability in tort (negligence, libel, nuisance, trespass, strict liability)

Question 52

What are CDM regulations for?

Answer 52

• To plan work – risks managed from start to finish of project
• Appointing the right people for the right job at the right time
• Cooperation and coordination of work with others
• Providing a framework to ensure everyone has the information, instruction, training and supervision needed to carry out their jobs in a way that secures health and safety
• Ensuring workers are consulted and engaged and their welfare is protected

Question 53

What liabilities does PII cover?

Answer 53

It covers you against claims such as negligence, misrepresentation, violation of good faith and fair dealing, and inaccurate advice.
PII is a cover against allegations of breach of duty of care. PI will pay for the damages together with any costs awarded against the defendant if a claim against a professional is made.

Question 54

What is CDM and how does it affect the guy on site doing the work?

Answer 54

CDM is the main set of regulations for managing the health and safety and welfare of construction projects.
Construction workers work for or under the control of contractors.
They need to be consulted on matters affecting their h&s and welfare; take care of their own h&s – and others who might be affected by their actions; report any potential dangers/problems; cooperate with contractors and client if necessary.

Question 55

What do you do if a sub-contractor is working unsafely on site?

Answer 55

Report to principal contractor straight away. One of P/C duties is to ensure workers are consulted and engaged in securing their H&S.

Question 56

What health and safety procedures does your office have in place?

Answer 56

All liable for Health & Safety – Health and Safety at Work Act 1974.
Minimum health and safety requirements in workplace (The Management of Health and Safety at Work Regulations 1999):
- Employers/self-employed people to carry out assessment of risks employees and others are exposed to while at work
- Employers of more than 5 employees to record findings of the assessment, identifying any employees especially at risk
- Employers to implement preventive and protective measures on the basis of he schedules listed in the Regulations
- Employers to provide inductions to staff on preventive and protective measures in place, as well health and safety training
- Employees to comply with training and inform employers of any situations dangerous to health and safety/shortcoming in existing protection measures

Question 57

What are some of the biggest risks you face when going out on site in your area of practice?

Answer 57

Risks associated with construction sites – constant movement of construction vehicles, interaction with workers at work, unfinished work/structures causing potential trip hazards, surrounded by hazardous substances/materials/odours on ground and air, risk of small hazardous particles in air (protective goggles worn), risk of the worker/contractor driving a vehicle and not being seen by driver;
Risk can be minimised by PPE. Mention CSCS card.

Question 58

Have you had any exposure to the new CDM regulations? Can you tell us a little bit about them?

Answer 58

The Stage – liaising with principal designer on reviewing our CDM risk list; attending reviews with design team; assisting principal designer on compilation of all risks associated with construction of project. At Progress Meetings – principal contractor updates client on all CDM related items – accidents, near misses, eliminated/controlled risks, unforeseeable risks.
Project Mural – CDM risk list issued following Stage 3; updated list issued following issue of Stage 4.
King Cross Projects – Principal designer present at the end of the very initial stages of project, to assess the risk listed by designers and advise accordingly; principal designers attendance at Progress meeting at construction stage – issue of Health and Safety File at Practical Completion and updates to Health and Safety File at sectional completion.

Question 59

59. How might strict liability apply to landscape architects?

Answer 59

• Added responsibility – if a non natural substances is accumulated on their land and it escapes and causes damage
• EG: building an artificial lake – were the lake to burst its banks and cause damage to neighbouring land/property
• EG: a rubbish tip on a construction site – if harmful substances were to leak into neighbouring property and cause damage
  Refer to Rylands & Fletcher case:
  Rylands & Fletcher is an example of strict liability in tort (which does not require the proof of negligence or intent on the part of the wrongdoer).
  ‘the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.’
  It has been applied to water, fire, explosives, poison etc.
  The accused is not liable if the ‘escape’ could not reasonably have been foreseen. A landscape architect would need to be able to demonstrate that he or she made an assessment of risk during design construction and maintenance – assessing risk means evaluating the likelihood of injury and damage and the seriousness of such harm.
  For LA – implications of plant species ‘escaping’ from the land where they were planted. In addition to any strict liability, the Natural Environment and Rural Communities Act 2006 (Wildlife and Natural Environment Act 2011 for Scotland) created an offence of allowing invasive non-native species to spread – criminal offence and fines up to 40,000 and 12 months in prison.

Question 60

What is considered as nuisance?

Answer 60

Nuisance is concerned with the protection of the environment and the protection of a person’s use of his/her own land and land over which there is public right of way. Two types of nuisance: public and private.

• Consequential damage made to the environment, someone else’s land, land over which there is a public right of way
• Private nuisance – blocking a roadway with delivery lorries
• Encroachment is considered as nuisance eg. branches of a tree hanging into a neighbouring site

Question 61

What areas of the law of tort do landscape architects need to be familiar with and why?

Answer 61

Negligence, nuisance, trespass, strict liability and libel

• Tort is a wrongful act or omission – with legal implications
• Applies in an absence of contract
• Duty of care
• Duty of care as a professional