Colin Moore CMLI, LI Technical Committee member and JCLI and CDM Regulations lead, explores some of the issues around construction site visits for landscape practitioners working during the COVID-19 pandemic

    Jubilee Gardens construction site
    Jubilee Gardens under construction

    Recently, the LI produced a Technical Guidance Note “Site visits and fieldwork during the COVID-19 pandemic“. This technical blog explores further some of the issues that arise concerning site visits that may be necessary during the construction stage of projects.

    There are two scenarios which influence the issues likely to be encountered at the construction stage:

    Scenario 1 – The landscape professional is the Contract Administrator (CA)

    This is where the landscape professional is acting as Client’s Agent to administer the contract (between client and contractor) to construct a project.

    From the outset it should be noted that as CA, the landscape professional only has the power given by the construction contract. This is a fundamental concept in terms of dealing with the issues raised by COVID-19 – the client may wish the CA to solve it in a particular way but the CA has no power under the contract to do so in that way, despite being the Client’s Agent. At the same time the CA has two other roles, the first as adviser to the client and the second to act impartially where the construction contract requires the CA to do things in accordance, for example, ‘with his/her opinion’.

    Part of the adviser role is usually to carry out site inspection for the client (checking the construction work is being done in accordance with the contract). Although this is an essential role part or all of it can be undertaken by someone other than the CA but the role is essential for the CA to perform their duties.

    This scenario is typical for projects involving only landscape works, or sometimes building/engineering projects where the landscape (or part of it) is implemented as a separate main contract from the building/engineering contract. The typical construction contract used in this scenario is likely to be one of JCLI LWC, JCLI LWCD, JCT IC, JCT SBC, RIBA, or NEC4 (or one of the JCLI Homeowner contracts if appropriate).

    Scenario 2 – The landscape professional is just an adviser

    This is the usual situation where landscape professionals are involved with building or engineering construction contracts. The typical construction contract used is either JCT DB or NEC4 and landscape work is normally done as a sub-contract. There are two different situations depending on whether the landscape professional’s client is part of the ‘client side’ or the ‘contractor side’.

    If the landscape professional is part of the ‘client side’ their client will be the project client or one of the project team advising the project client (e.g. the project manager, architect, engineer). The landscape professional is part of that team of consultants one of whom will be the CA. The landscape professional’s role will include undertaking site inspection and advising the client, project team and CA. The landscape professional almost always has no power under the construction contract, but advises the CA on the quality of work within their remit and on associated contract administration. The CA is typically the project manager, or architect for a building project, or engineer for an engineering project.

    If the landscape professional is part of the ‘contractor side’ then their client will be the contractor, a sub-contractor or one of the advisors to the contractor. The landscape professional may have been novated from the project client to the contractor when the design-and-build contractor was appointed (or if the landscape professional is a sub-consultant to the architect the architect may have been novated). In this situation the landscape professional advises the contractor (possibly through another consultant or sub-contractor as their client) but has no direct communication with the project client or the CA who is usually the project manager.

    The issues:

    In both scenarios the landscape practitioner will have an agreement with their client which will include the relevant scope of work and duties (for an agreed fee) as well as the general terms and conditions of the appointment. When considering COVID-19, it is also essential to consider the agreement/contract between the landscape professional and their client. The issues concerning landscape professionals and COVID-19 at construction stage are different, however, for the two scenarios above.

    In the second scenario where the landscape professional is part of the ‘client side’, the key players at construction stage will decide how to proceed in relation to COVID-19. Typically, the key player is the project client advised by the CA and in discussion with the contractor. The opinion of the other members of the team may be sought but is unlikely to have much influence on the decision. If the decision is to continue work on site then that will be the context within which the landscape professional decides (in discussion with client and other key players) how to proceed, what precautions to take, how to protect employees, etc.

    Where the landscape professional is part of the ‘contractor side’ then the project client with the CA and contractor are the key players deciding how to proceed. The landscape professional is unlikely to have much influence over the decision but if the decision is to proceed the landscape professional will be expected to proceed and take whatever precautions are required by the contractor as well as any the landscape professional considers necessary.

    In the first scenario the landscape professional as CA is the key adviser to the client, assisting the client to make an appropriate decision as to whether to continue construction or not and if continuing, what precautions are appropriate. Such discussions must also include the contractor because both continuing or closing the site have cost and time implications for both the client and contractor.

    Contracts

    In terms of the detail of the conditions of contract and legal precedent concerning contracts etc., the LI does not give legal advice to members. Legal advice should also be specific to each individual project contract rather than generic or else specific to a particular published standard form contract unless that form has been used unamended.

    The key piece of advice I always give, however, is to communicate with all relevant parties, discuss and agree what to do without too much reference to the detail of the contract conditions. Don’t forget that the parties to a contract (e.g. client and contractor) can agree to vary the contract in whatever way they wish within the legal requirements for a valid contract. In the context of a construction contract the CA and other consultants are advisors to their particular client (who may not be the project client) but they also have a consultancy agreement with that client. Decisions need recording in writing, for which a lawyer may be required depending on the circumstances. Unilateral action by one party could be a breach of contract, e.g. a contractor or consultant stopping work, and is likely to have significant financial implications.

    If one of the parties to a particular contract decides to be unreasonable in coming to an agreement of how to proceed then legal advice will be necessary, but it is important to defuse situations rather than allowing them to escalate – nobody wins from a dispute (except lawyers). Note that usually each party considers that it is the other that is being unreasonable. The low key techniques for dispute resolution which are included in many contracts should be initiated before escalation to adjudication, arbitration and/or courts.

    However, as part of the process of preparing for discussions with client/contractor it is essential to gain an understanding of what approaches others in the industry are taking and to understand the legal aspects a little. The more prepared the better. This will involve research into available information from reliable, preferably primary, sources and may involve taking advantage of the free legal advice available to practices and members from the LI solicitors (Use the limited free time wisely!). Also advise your PI brokers/insurers of the situation and possibly get advice from their solicitors, or from your own solicitors. It is important to realise that there are no definitive answers. Grey areas also stimulate legal minds and an opportunity to get the courts to clarify the law.

    There is also very useful information on-line, e.g.:


    Colin Moore CMLI (edited from longer item)

    (Colin Moore is an experienced practitioner and speaker on landscape practice. He is a member of Technical Committee and led on the production for the LI of the JCLI contracts and information regarding the CDM Regulations)

    Since this blog was published some further important guidance has been made available:

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