Landscape News Summer 2023

Suite of BALI domestic contracts launched

Written by Owen Baker, Technical Officer - Policy and Research

During May 2023, the Association launched three new contract templates, intended for use by registered designers and contractors as part of a suite of project documents issued to domestic clients. The contracts were the result of many hours of consultation between an independent solicitor and BALI’s technical officers, Owen Baker and Richard Gardiner.

The Association are aware contracts are not always issued by members for all projects. The Association understand there are several possible reasons for this - the client may not request a contract, or the contractor potentially saves time by not writing and issuing a contract.

The Association also appreciate there is a more general stigma associated with writing, issuing and deciphering contracts. Historically contracts or, more disparagingly, ‘the small print’ have a reputation for being difficult to understand, with legal wording and complicated clauses.

Template contracts specifically for landscape use have previously not been freely available for all disciplines.

The law does not require businesses to issue a physical contract to their domestic client; a contract will still be in

force regardless, but the terms will be implied or agreed orally. However, most legal professionals agree a formal contract represents a clearer method of outlining rights, obligations, and responsibilities in relation to a project.

Domestic clients may not appreciate the level of expertise required to plan and execute a landscape design or construction project, which frequently leads to the skills of a landscape professional being undervalued. This undervaluing of skills can result in clients pursuing the lowest possible price for a garden project, which is often a false economy.

The Association regard the use of a contract and suite project documents including a specification, bill of quantities and design drawings as a way of highlighting to the client the skilled process associated with any landscape project, and for a member to differentiate themselves from a less skilled and experienced landscape designer or contractor.

Whilst it is true landscape or garden projects vary in their budget and scale, the Association suggest the process required to complete a design and/or construction project is the same regardless of these parameters, and a professional will distinguish themselves by following this process.

Previously the Association has offered a single contract, intended for use by landscape construction contractors with their domestic clients.

Feedback from members suggested this was not sufficient for the working relationships which arise between designer and contractor and their domestic client, which led to the development of the following variants:

• design only

• build only

• design and build

These contracts are intended to cover all working relationships which arise between accredited designers, contractors and their domestic client.

The contracts

Whilst writing the new contracts the Association was mindful of the need to provide client, contractor and designer with a document which notifies all parties of their responsibilities in relation to the entire project process, regardless of whether this is design-only, build only or combined design and build.

Based on feedback from members and their clients during disputes, the Association is aware that many domestic clients are

unfamiliar with the mechanics of a large value home improvement projects and require guidance through the process. Similarly, the Association, through their work in disputes, is aware of scenarios which lead to disputes. These scenarios frequently concern project management and decisions associated with project variations, and result from poor communication. When designing the contracts, the Association were mindful of the need to avoid ambiguity as much as possible.

The resulting contracts have been laid out to resemble a manual or FAQ document for the project, which can be used as a reference for both parties.

Whilst the Association have made every attempt to keep the number of pages for each contract to a minimum, they were also mindful of including sufficient detail to afford the member and their client clarity in the working relationship and protection from misunderstanding.

All three variations of the contract contain sections to identify each significant stage of the project including:

Definitions and interpretation

Terms associated with the contract are explained in simple language, and what these terms mean in relation to the agreement.

Information about us and how to contact us

Contact details associated with client and contractor, including a period of working.

Our agreement with you

How the client can formally confirm their acceptance of the documents presented by the contractor.

Our main obligations – to do the work

The terms under which the member is required to provide services.

Your main obligations – to pay us

The terms under which the client is required to pay the member.

Changes to the order or these terms

The circumstances under which a member or their client may vary the terms of the contract.

Permissions

The permissions the member will consider before undertaking the project, unless otherwise stipulated, including planning permission, tree preservation order, building regulations, and confirmation that the client will be responsible for paying for costs associated with these.

The services

The process by which the services will be carried out, starting with introduction of employees working on the project, to include progress updates and adherence to health and safety regulations throughout.

The use of contracts ensures all parties are clear on their responsibilities in relation to the entire project, eliminating ambiguity and ensuring the expectations of client, contractor and designer are met.

Access to the site

Contains clauses that will protect the member, such as requirements the site will be free from hazards and obstructions, and the remedies if the contractor discovers these when work commences. Also highlights role of CDM in the project.

Materials

This section contains clauses which refer to specification and supply of materials. Variation of texture and colour of natural materials is highlighted for the benefit of both parties, as is the length of warranties associated with materials supplied, together with the terms associated with these.

If there is a problem with the services

This section advises both parties how disputes should be resolved.

Price and payment

This section details how payment should be made, including how to pay, the value and frequency of staged payments and the consequences for missing payment deadlines

Obligations and responsibilities for loss, damage and insurance

This section outlines the responsibilities of both parties, and the need for either party to provide suitable insurance for the duration of the project. Specific circumstances which may occur during the project are also covered.

Events outside our control and suspension or frustration

This section specifies the events which may disrupt or even lead to the termination of the project, but for which the client and contractor cannot be held liable. For example, a pandemic.

Benefitting from your professionalism

Association members have proved to vetting officers their knowledge, skills and experience are worthy of the BALI accreditation, and it is these attributes that prospective clients seek.

Use of a contract is one way of demonstrating this professionalism which, together with associated project documents, will ensure the best chance of a mutually beneficial working relationship.

All three contracts are available free of charge to all accredited designer and contractor members. To download a copy, visit the members section of the BALI website.

Please direct questions regarding the contracts to Owen Baker, at technical@bali.org.uk

Owen Baker

Technical Officer Policy and Research