Incorporating Building Conservation Journal
Building Surveying Journal
A different view Benefits of embracing diversity and inclusion PG
24
Levels of loss
Planning ahead
BUILDING CONSERVATION
Assessing value in contract breaches
How to future proof the profession
Caring for Hampton Court
PG
8
PG
18
Palace programme PG
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December 2015 / January 2016
rics.org/journals
RICS B UI L D I N G SU RV E YI N G J OU R N AL
A DV E RTI S I N G
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C O NTENTS
RI CS BUILDING S URV EYI NG JO UR NAL
Incorporating Building Conservation Journal
Building Surveying Journal
A different view Benefits of embracing diversity and inclusion PG
Levels of loss
Planning ahead
Assessing value in contract breaches
How to future proof the profession
PG
8
PG
18
24
BUILDING CONSERVATION
Palace programme Caring for Hampton Court PG
December 2015 / January 2016
rics.org/journals
28
Front cover: ©Shutterstock
contents 4 Aiming higher
BU I L DI N G S URVE YING JOU R NAL
Member involvement in RICS’ three-year plan will help raise the profession to a new level, says Alex Charlesworth
16 Staying power
Editor: Barney Hatt T +44 (0)20 7695 1628 E bhatt@rics.org
5 Update
17 Moving on up
The Building Surveying Journal is the journal of the Building Surveying Professional Group
6 A time of change
CON TAC TS
Advisory group: Gary Blackman (Lambert Smith Hampton), Alan Cripps (RICS), Brad Hook (National Energy Foundation), Mat Lown (Tuffin Ferraby Taylor), Patricia Newman, Trevor Rushton (Watts Group), Chris Skinner (Savills), Roger Stanton (Tuffin Ferraby Taylor), Andy Tookey (Baily Garner), Terry Walker (Walker Associates Ltd) The Building Surveying Journal is available on annual subscription. All enquiries from non-RICS members for institutional or company subscriptions should be directed to: Proquest – Online Institutional Access E sales@proquest.co.uk T +44 (0)1223 215512 for online subscriptions or SWETS Print Institutional Access E info@uk.swets.com T +44 (0)1235 857500 for print subscriptions To take out a personal subscription, members and non-members should contact licensing manager Louise Weale E lweale@rics.org BU I L DI N G C O N S E RVAT ION JOU R NAL Editor: Robert Mallett T +44 (0)20 7695 1533 E rmallett@rics.org The Building Conservation Journal is the journal of the Building Conservation Forum Building Conservation Forum Board contact: Frank Keohane (Paul Arnold Architects) Published by: Royal Institution of Chartered Surveyors, Parliament Square, London SW1P 3AD T +44 (0)24 7686 8555 W www.rics.org ISSN 1750-1032 (Print) ISSN 1759-3387 (Online) Editorial and production manager: Toni Gill Sub-editor: Gill Rastall Designer: Nicola Skowronek
Paul Spaven picks the highlights of the Dilapidations Forum Conference
7 Playing by the rules
Paul Greatholder examines best practice in bringing a dilapidations claim using the Civil Procedure Rules
8 Levels of loss
Abdul Choudhury discusses how the failures of previous energy efficiency policies can help inform new initiatives
Elina Grigoriou describes the take up of the SKA rating assessment method by the higher education sector
18 Planning ahead
Understanding the future educational, professional, and technical demands of building surveying is essential to remain relevant, argues Dr Kevin Thomas
20 Attention to detailing
Terry Davis reviews the different ways that a valuer can quantify loss
Internal wall insulation offers opportunities for energy saving, but the choice of product requires care, says Philip Smith
10 Out of the ordinary
22 Legal Q&A
Emma Humphreys provides an overview of recent dilapidations rulings
12 For better or worse?
The wording of a Schedule of Condition is critical to understanding repair responsibilities, as James McAllister explains
13 Watch your step
Vivien King considers the issues of disclosure when related to a client’s dilapidation claim
Legal experts answer common queries
23 A matter of time
Ewan Craig outlines the core competency of works progress and quality management
24 A different view
Heather Rabbatts talks to Barney Hatt about the benefits of embracing diversity and inclusion
14 Holding back the waves
Laurence Cobb looks at two recent cases that illustrate the issue of payment notices
Creative director: Mark Parry Advertising: Emma Kennedy T +44(0)20 7871 5734 E emmak@wearesunday.com Design by: Redactive Media Group Printed by: Page Bros While every reasonable effort has been made to ensure the accuracy of all content in the journal, RICS will have no responsibility for any errors or omissions in the content. The views expressed in the journal are not necessarily those of RICS. RICS cannot accept any liability for any loss or damage suffered by any person as a result of the content and the opinions expressed in the journal, or by any person acting or refraining to act as a result of the material included in the journal. All rights in the journal, including full copyright or publishing right, content and design, are owned by RICS, except where otherwise described. Any dispute arising out of the journal is subject to the law and jurisdiction of England and Wales. Crown copyright material is reproduced under the Open Government Licence v1.0 for public sector information: www.nationalarchives.gov.uk/doc/open-government-licence
DECEMBER 2015 / JANUARY 2016 3
RICS B UI L D I N G SU RV E YI N G J OU R N AL
C HA I R M A N ’S C O L U MN
OPINION Member involvement in RICS’ three-year plan will help raise the profession to a new level, says Alex Charlesworth
Aiming higher
R RICS has recently launched its business plan 2015 to 2018, and the Building Surveying Professional Group (BSPG) Board has also produced its own version, available to download on the website (http://bit.ly/1Xoltzf). It is essential to plan for the future and a three-year business plan is a very useful tool to focus the energies of the board. The BSPG is made up of volunteers who balance their time with their day-to-day workload, and in response looks at ways to harness additional members to cover more ground, more quickly, and more efficiently.
Setting objectives The business plan approach works well when organising the annual conference,
dinner, and also the soon to be replaced guidance notes. This will enable BSPG to focus its energies on principal objectives defined at the beginning of each business plan year. Each BSPG member will take responsibility for various objectives, and seek help from subcommittees made up of more volunteers from the wider membership. As well as driving efficiencies, I hope this approach will be more inclusive of our members, cover more ground, and drive building surveying forward. The principal objectives are clearly defined in the business plan and available for all our members to review. The aim is to be more accountable and transparent in what we are trying to achieve. We look to our members for support, and ask you to volunteer your time to help with our initiatives, so please contact me if you would like to be involved.
Course review The theme of this journal is dilapidations and as a core service line for building surveyors, it is essential it
4 DECEMBER 2015 / JANUARY 2016
is included as part of our business plan. In 2016 we will be looking at the regulations, and questioning whether elements of dilapidations can become mandatory standards. I am conscious that the knowledge and experience gained in dilapidations by graduates during a three-year degree amounts to little more than one to four hours. Until recently, RICS education set the skeleton for courses at universities, and it was up to universities to add the flesh to them. These days there is more emphasis on using the APC competencies as the guidelines for universities, which is both logical and provides more clarity. The BSPG will be assessing the APC competencies to ensure that they reflect current trends and business needs.
Dilapidations Forum RICS Dilapidations Forum Conference celebrated its decade with another superb event and I would like to thank chair Paul Spaven and his colleagues. Many of us will remember attending the first conference and it is encouraging to see so many young people attending this year’s event, showing that building surveying is stronger than ever. More than 400 delegates gathered from far and wide to meet legal professionals, mechanical
and electrical consultants and valuation surveyors. During the conference case law update, I did note that it has been a somewhat quiet year; hopefully this is due to us building surveyors amicably resolving matters, or perhaps the dilapidations protocol is playing its part. It will be interesting to see whether this remains the case, with the fast approaching energy efficiency standards confirmed for 2018.
Looking ahead We now look forward to 2016 and the RICS Building Surveying Conference on 19 April and I hope to see many of you there. The emphasis is on ‘many’, because the Queen Elizabeth II conference hall can hold up to 700 delegates—now there’s a challenge for the organisers. This is the final editorial in what has been an extraordinary year for building surveyors as the market continues to look favourably on our services, with the caveat of the impact on markets from the BRICS pack, in particular Russia and China. The BSPG will continue to promote the profession and I call on all members to help take building surveying to another level. C Alex Charlesworth FRICS is Chairman of the Building Surveying Professional Group BuildingSurveying ProfessionalGroup@rics.org
UPDATE
UPDATE Business energy tax reform In the Summer Budget 2015, the Chancellor announced a review of business energy tax, aimed in particular at simplifying and improving the effectiveness of the regime. The integration of the Climate Change Levy and Carbon Reduction Commitment Energy Efficiency Scheme (CRCEES) with other business energy efficiency policies and regulations will be considered. Effectively, the government would like one, simple reporting tool, one single incentive and one single fiscal mechanism. The Minimum Energy Efficiency Standard is not part of the review. One option is for reporting obligations under CRCEES and the greenhouse gas regulation to be incorporated in an enhanced version
RI CS BU ILDING S URV EYI NG JOUR NAL
In brief...
BIM Conference 12 February, London
of the Energy Savings Opportunity Scheme (ESOS), introduced to reduce overall energy consumption and carbon emissions and comply with the European Energy Efficiency Directive. In addition, a simplified carbon tax linked to ESOS, with the associated tax revenue used to fund improvements, would align well with the scheme’s rationale to cut business energy costs. The government has estimated savings of around £1.6bn a year if the opportunities highlighted by ESOS audits are realised.
The conference brings together parties who are developing and implementing building information modelling process collaboratively in their projects. To register your interest, visit n www.rics.org/bimconf
n For details, contact Mat Lown, Partner and Head of Sustainability at Tuffin Ferraby Taylor mlown@tftconsultants.com Twitter: @matlown
RICS training
Building Surveying Conference 2016 19 April, London
To register your interest early for the 2016 event, visit n www.rics.org/bsconf
3 December, London
Effective risk management in construction n www.rics.org/riskmgt 8 December, London
Standards and guidance notes
Alexander Aronsohn, RICS Director of Technical International Standards, has set out RICS work in developing consistent global property standards. The full article can be read in the September-October issue of the Property Journal. n www.rics.org/pjseptoct15 RICS has published the Japanese knotweed and residential property 1st edition guidance note, which will assist homeowners, purchasers and lenders in making informed decisions on assessing and reporting the risk. n www.rics.org/jknotweed All RICS standards and guidance notes go through a public consultation, which remains open for one month. Members and non-members can log their comments via iConsult. n www.rics.org/iconsult
APC enrolments
Building surveying APC enrolments have now beaten pre-recession levels. According to RICS, the key reasons are the upturn in the economy, ongoing RICS engagement with key employers, stronger recognition of RICS qualifications in industry, and increased emphasis on engaging government and wider stakeholders.
Encouraging diversity
RICS has launched an initiative to make the land, property and construction sector more inclusive and diverse. The Inclusive Employer Quality Mark is designed to help firms gain a competitive advantage and a diverse workforce. n Register your interest with RICS External Affairs Director Kim Worts, kworts@rics.org
Modern methods of construction n www.rics.org/mmc 15 December, London
Carbon management in the built environment n www.rics.org/carbonbe 17 December, London
Dilapidations: claims, obligations and settlement mechanisms n www.rics.org/dilapsbs 21 January, London
Rights of light: assessment and calculation n www.rics.org/rightsoflightlegal
Journal goes interactive Your RICS Building Surveying Journal is now available as an interactive ISSUU page-turning digital reader. Ideal for reading on a tablet or desktop, it allows you to ‘clip’ and share part or whole articles. Just go to your usual journal home page and click on the link or follow the link from your regular e-mail alert. DECEMBER 2015 / JANUARY 2016 5
RICS B UI L D I N G SU RV E YI N G J OU R N AL
D I L A P I DATI O N S
Paul Spaven picks the highlights of the RICS Dilapidations Forum Conference
T
A time of change he Dilapidations Forum Conference is the second largest event in the RICS UK calendar and this year attracted almost 400 delegates to the Mermaid Theatre in London. Among those listening to the 24 speakers were building surveyors, valuers, M&E engineers and some of the UK’s top property litigation solicitors and barristers. In a year when there has been little relevant case law, the Dilapidations guidance note is yet to be updated, and the Protocol is ‘old news’, many of the speakers had taken time to reflect on the future for the sector, with surprising outcomes. Peter Bill, former editor of Building and Estates Gazette magazines, ended the conference with a thought-provoking keynote address. He asked the delegates, by a show of hands, whether they would encourage their sons and daughters to pursue a career in dilapidations. Not one hand was raised. Dilapidations as a legal concept is really only relevant in the UK and Australasia, where it is known as ‘making good’. The rest of the world tends to have all-inclusive leases and a simpler approach to dealing with lease-end obligations. Given that the property investment world is now truly international, that commercial leases are on average around five years’ duration in UK, and most landlords and tenants are keen to resolve disputes swiftly rather than draw battle lines, perhaps the future is not so rosy for dilapidations?
Legal update The day started with an upbeat presentation by Emma Humphreys, Partner at Charles Russell Speechleys LLP. Despite the apparent dearth of cases, she presented seven relevant suits, including a salutary tale of service charge increases. In Arnold v Britton, relating to some leisure park chalets on the Gower peninsula in Wales, the tenants signed up to 99-year leases around 35 years ago with an annual 10% increase on the £90pa service charge. For many, that service charge is now £2,500pa, and by lease end could be £550,000. The plenary law session continued with Nic Taggart of Landmark Chambers dissecting the topic of consequential loss, via the highly entertaining medium of Bruce Springstein’s music. Guy Fetherstonhaugh QC of Falcon Chambers caught the mood with a review of the interpretation of contracts, accompanied by photographs of the buildings referred to in well-known cases.
Breakout sessions The chairman of the conference organising subcommittee, Chris Sullivan of Malcolm Hollis, departed from the conference format with a split for optional breakout sessions. In the valuations breakout panel session, Mark Wannacott QC, Maitland Chambers, provoked reaction by stating that there
6 DECEMBER 2015 / JANUARY 2016
is no need for the building surveyor in dilapidations – matters could all be resolved by a valuer. Andrew Outterside, a partner at Vail Williams, went further, suggesting that only a property agent is required. It was interesting that a number of the valuers on the panel, including Peter Beckett of Beckett and Kay and David Gilbert, Lambert Smith Hampton, disagreed. The building surveyor’s role is, in their view, essential. Charlotte Black of Wilberforce Chambers expressed the view that while a single joint expert might be the way to resolve smaller disputes or where the cost of works is not in contention, this approach does not work well for larger, complex cases. This seems to underline support for the RICS Dilapidations Resolution Scheme (DRS) launched last year. Those now trained and accredited by RICS DRS can expect to be busy. There was unanimous agreement from the panel, chaired by Terry Davis, on the assertion that case law was now catching up with section 18(1) of the Landlord and Tenancy Act 1927 and its sell-by date might be nigh. Indeed, Jon Rowling of Goodrow Building Consultancy, chairman of the committee updating the Dilapidations guidance note, stated that the recommendation will be that schedules are simplified to reflect this. The afternoon plenary included updates on mediation by Jacqui Joyce, author of the RICS guidance note, and the launch of an RICS Certificate in Dilapidations, by Martin Heffron of Cluttons. The emphasis was the creation of expert level practitioners and seeking ways to reduce the time and cost of dilapidations disputes. So, is there a future for the dilapidations surveyor? Bill reported similar pressures to those he experienced when working as a quantity surveyor. But change is slow and the demise of ‘traditional’ bills of quantities and the rise of the cost consultant did take around 25 years. C
More information >
To join the Dilapidations Forum, visit www.rics.org/dilapidations or email dilaps@rics.org Dilapidations Price Book 2015 is available from www.bcis.co.uk
Paul Spaven is Chairman of the Dilapidations Forum Steering Group, and Partner at Tuffin Ferraby Taylor pspaven@tftconsultants.com
Related competencies include Legal/regulatory compliance
DILA P IDATIO NS
RI CS BU ILDING S URV EYI NG JOUR NAL
Playing by the rules Paul Greatholder examines best practice in bringing a dilapidations claim using the Civil Procedure Rules
T
he law relating to dilapidations covenants and the impact of section 18 of the Landlord and Tenant Act 1927 is well explored. Significant changes in the law arising from new cases, legislation or guidance are painstakingly scrutinised. However, outside substantive law, there is merit in considering best practice in bringing a dilapidations claim, and identifying possible pitfalls. The RICS Dilapidations guidance note, paragraph 7.1. states: “A surveyor dealing with a dilapidations claim should be aware of the Civil Procedure Rules” (www.rics.org/dilapsgn6thed). The Civil Procedure Rules (CPR) govern how a claim should be conducted (http://bit.ly/1dUXsx8). Dilapidations claims have their own protocol, drafted by RICS and the Property Litigation Association in 2000 as a guide to best practice, and revised in 2006 and 2008. It became part of the Court rules on 1 January 2012. In common with other CPR protocols, it encourages the parties to: bb exchange information bb consider alternative dispute resolution bb try to resolve their dispute without the need for proceedings. A quick word count reveals that the words “surveyor or valuer” appear 22 times. By comparison, “solicitor or lawyer” do not appear at all. This suggests that the courts view the role of a surveyor as of fundamental importance. Paragraph 1.5 of the protocol allows that compliance in substance is the important thing, and the courts are
not likely to be concerned with minor or technical shortcomings. That said, paragraph 8.1 contains a warning that the courts will take into account the extent of the parties’ compliance when making orders about who should pay costs.
Litigation costs The case of Courtwell v Greencore in 2014 is illuminating. This began as a dilapidations case, but the decision was widely reported after the judge was highly critical about how the litigation was run. The amount claimed by the landlord was agreed shortly before trial. The parties disagreed about who should pay the costs of the litigation up to that point. The landlord submitted that the behaviour of the tenant’s team had been so unhelpful that it (the landlord) should recover a much larger than normal percentage of its substantial legal costs. One of the grounds on which the court can make such an order is non-compliance with a court protocol. But what the judge actually found was: “The landlord did not comply with either the words of the protocol or the spirit... The inflexibility and lack of cooperation was apparent on both sides... The suspicion and ill-feeling between the experts did not help. It would be wrong to award indemnity costs.” So the effect of the landlord’s advisers’ combative approach was that the judge was not impressed and the landlord lost a very valuable advantage. The CPR encourage parties to litigation to make early and realistic settlement offers by imposing sanctions if such offers are unreasonably rejected. There is a general right to make a “without prejudice except as to costs offer”. Known as a Calderbank offer, they
There is merit in considering best practice in bringing a dilapidations claim, and identifying possible pitfalls
are useful because they are completely flexible. However, while they can be very persuasive in the eyes of a court when deciding whether someone has litigated unreasonably, they do not bind a court.
Part 36 Part 36 offers were created by the CPR. They are, like Calderbank, offers but if successfully made the court should have no discretion on whether to make a generous award in relation to legal costs. The general effect of either party making a Part 36 offer is that if it is accepted within 21 days (as well as settling the case) the claimant will have the certainty of having some legal costs paid by the defendant. If either party makes a Part 36 offer and the recipient does not accept it, but then at trial does not ‘beat’ the Part 36 offer, they will be ordered to pay additional legal costs (sometimes interest too) on a punitive basis. The problem with Part 36 offers is that they are inflexible. For example, an automatic consequence of a defendant making a Part 36 offer (which in dilapidations claims usually means the tenant) is that it is committing to meet the legal costs of the claimant landlord up to the date the landlord accepts the offer. It is virtually impossible accidentally to get a Part 36 offer right, whereas it is very easy to get it wrong, as the very large number of cases on the issue evidences. Therefore, careful thought needs to be given to mechanics and effect of the offer. C
Paul Greatholder is a Partner at Russell Cooke paul.greatholder@russell-cooke.co.uk
Related competencies include Legal/regulatory compliance
DECEMBER 2015 / JANUARY 2016 7
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Levels of loss Terry Davis reviews the different ways that a valuer can quantify loss
F
or many years, landlords’ surveyors have prepared schedules of dilapidations (SoD) based on breaches of repairing covenants, costed them and then served such on the tenant. The tenants’ building surveyor would then negotiate and in all probability agree a settlement whether or not the landlord had carried out the work. The settlement would have been based on the quantum of the breaches of covenant and was often unrelated to the landlord’s actual loss. A series of cases including Ruxley Electronics & Construction Ltd v Forsyth [1995] and Sunlife Europe Properties Ltd v Tiger Aspect Holdings Ltd [2013] and, of course, the Dilapidations Pre-Action Protocol show that landlords cannot claim for something that they have not lost. Although this has come as something of a shock to elements of the profession, the concept has its roots in Section 18 (1) of the Landlord and Tenant Act 1927 and is the basis of common law loss calculations. Breach of contract (in these circumstances) is quantified by damages, which can be defined as the reimbursement of a loss suffered. So now we have ‘loss’ – the landlord should obtain reimbursement of any loss suffered by the breaches of lease covenants by the tenant. Such loss can often be established by the cost of carrying out the work defined in the SoD, 8 DECEMBER 2015 / JANUARY 2016
although this can still be challenged by the tenant as not representing the actual loss. But if the work has not been carried out, then the landlord has to prove actual loss according to the Protocol. Under these circumstances, the loss has historically been established by way of a diminution valuation (DV) and their use could continue despite recent court cases indicating that loss can possibly be established directly, There are various scenarios but a valuer (or any other surveyor) must consider: bb what is the best use of the premises and what would the hypothetical purchaser do – redevelop, convert, refurbish or repair? (The presumed purchaser of the premises if they were to be put on the market for sale at or shortly after the date of termination of the lease, as in a DV) bb the actual landlord’s intentions can (generally) be considered irrelevant – the hypothetical purchaser, the prudent landlord or market forces will define what to do with the premises (a hypothetical landlord who acts prudently by always following market forces with the objective of maximising value, profit and/or income) bb the valuer should then consider the options, and select the one that achieves the highest value in a practical manner – use of development appraisals may be required to establish this.
Assessing diminution The position established above then drives the valuation forward.
Redevelopment Under this heading we presume that the premises will be demolished – so does this mean that there is nil diminution? Not necessarily: if no planning consent exists as at termination then it may be prudent to let the premises on a shortterm basis. Some work may be required to achieve such a letting and this would prove the maximum loss suffered due to any disrepair – the figure would be capped by the maximum net income from the short-term letting. If planning was available so that immediate demolition can be considered, there may still be a loss suffered by the landlord if the former tenant’s alterations or fixtures have not been removed, thereby increasing the cost of demolition. The valuer may be assisted in this task by an architect drawing up a ‘content sketch’ to enable the valuer to prepare the necessary development appraisal to prove that redevelopment is the route to follow. In certain circumstances it may be appropriate for the former tenant to submit a planning application for redevelopment. Conversion The valuer will need to establish the extent of work still required to rectify breaches of repairing covenants and that superseded by the conversion work. All aspects of supersession come into play. In general, external work is still required but will be constrained by supersession arguments.
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Market driven supersession The valuer should identify those parts of the premises that require upgrading to satisfy the market and provide evidence of such. Again, the landlord’s intentions are not relevant but a development appraisal may be required to show that upgrading the premises gives an economic return and so would be carried out by the prudent landlord. All repairs so superseded are to be marked as such and deleted from the total. Justification is again required under section 5.6 of the Protocol.
Refurbishment Again, it is necessary to establish to the extent of work in the SoD required and that superseded by the proposed works. Repair This route assumes that the premises will be unchanged as to use and general layout but elements of the building may require replacement or improvement. In this case, it is reasonable to assume that the work in the SoD will be required unless ruled out by supersession arguments supported by post-termination events. Although in principle post-termination events are not relevant, in the real world the courts tend to take notice of such.
Next steps So what are the practical ways of achieving these scenarios? Supersession The actual landlord’s intentions are not generally relevant, the prudent landlord or the hypothetical purchaser’s intentions apply. Dealt with by response to the landlord’s Scott Schedule – does supersession apply (RICS Property Journal, March/April 2014, p17)? Individual items in the schedule marked as such and deleted from the total. Justification pursuant to section 5.6 of the Protocol is required and this can be included within a separate page of the Scott Schedule.
Landlord has carried out work but tenant considers this excessive or subject to supersession A DV will probably be required to show the loss based on an assessment of the work the valuer thinks was necessary to achieve a letting or sale without discount, delay or further expenditure. It may be possible, however, to argue this effectively by way of a response to the Scott Schedule. This element of the work will indicate the loss to include within the DV and may be significantly less than the cost of work carried out. The cost of the work must be proportionate to the loss suffered/the benefit gained. The burden of proof is on the tenant where the landlord has carried out the work Premises let with extended rent-free period, incoming tenant does the work The premises have been let on the basis that the incoming tenant takes a new full repairing lease and commits to carrying out the work listed in the SoD either within an agreed time scale or by the end of the term. The loss will be established by a DV and will need to separate the ‘normal’ rent free period from the ‘additional’ rent free agreed as compensation to the tenant for carrying out the dilapidation work. The loss will be the quantum of the additional rent free brought to a present value (PV). Premises re-let with repairing obligations capped by schedule of condition A DV will be required to establish loss. To get the premises back into a position where they can be re-let on full repairing terms work will be required at the end of the new lease term. The valuer must
establish the extent of such work and the loss will be the PV of the cost of the work at the end of the term. Premises sold in disrepair A DV will be required to prove loss. The purchaser’s intentions must be taken into account on the basis that they are the ‘hypothetical purchaser’s’ intentions as well; this would mean that we take into account purchasers with a special interest. Did the purchaser have a survey? Did the purchaser renegotiate price after survey? What work did or will the purchaser have to carry out on completion of purchase? This will establish the cost of repairs that the purchaser will need to carry out, taking into account any aspects of supersession. It is reasonable to assume that if the premises had been in repair then these works would not have been required and the purchaser would have paid more for the premises. This identifies loss. Special circumstances In all the above examples it has been presumed that market value or market forces will prevail. However, the loss being established here is that of the actual landlord, and we must not let ‘the tail wag the dog’. What if the landlord is a family trust that cannot sell or where a sale would generate a large capital gains tax liability? The landlord would be able to prove that their best economic solution is to maintain the building for the income and therefore other arguments are irrelevant. While I believe this approach is correct, many other valuers would disagree. It should be noted that the cost of preparing a diminution valuation is not normally recoverable unless by way of ‘costs’ if proceedings have been issued. C Terry Davis FRICS is Principal at TN Davis Chartered Surveyors terry@tndavis.co.uk
Related competencies include Legal/regulatory compliance, Conflict avoidance, management and dispute resolution procedures
DECEMBER 2015 / JANUARY 2016 9
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Emma Humphreys provides an overview of recent dilapidations rulings
Out of the ordinary
W
ith most of 2015 passing without any dilapidations cases, three – quite unusual – cases have emerged in recent months. The Creative Foundation v Dreamland Leisure Ltd & Ors [2015] EWHC 2556 (Ch) concerned part of a wall removed by the tenant which contained a mural painting by Banksy. The art had been applied without the consent of landlord or tenant and was estimated to be worth £300,000. The Creative Foundation had stepped into the shoes of the landlord and was seeking delivery up of the wall by way of an application for summary judgment. The lease contained fairly standard covenants about keeping the premises “in good and substantial repair”, painting the outside of the premises at regular intervals and not injuring any of the walls of the premises or making any alteration without the landlord’s written consent. For the purposes of this early hearing, the judge accepted that the paint sprayed by Banksy amounted to the wall being out of repair or condition. The options available for remedying the issue were: bb the mural could be painted over bb the mural could be removed by appropriate cleaning (and making good of the paintwork) bb the underlying section of wall could be removed and replaced. The judge accepted that the more invasive work of the third method
might be justified if it provided a more long-term solution, but the tenant needed to show that this method was at least as objectively reasonable when compared with the first two options. The tenant sought to justify the removal of the wall on the basis of the advice it had received, that the wall was likely to attract further graffiti because of the knowledge that Banksy had painted there. However, the judge accepted The Creative Foundation’s point that this problem of future graffiti would remain the same however Banksy’s work was removed. The judge therefore concluded that the tenant had no reasonable prospect of establishing that it was entitled – let alone obliged – to remove the wall containing the mural in order to comply with its repairing obligations. The court then moved on to consider the parties’ request to imply a term into the lease to address the question of what should happen to parts of the building replaced or otherwise removed by the tenant when complying with its repairing obligations. (The parties were agreed that these items revert to the status of chattels once removed from the building.) The judge decided to imply that such chattels should be the property of the landlord. His reasoning was that: bb the default position is that every part of a property belongs to the landlord, whereas the tenant only holds its interest for a period of time. It is therefore for the tenant to show that it is proper to imply a term that leads to a different result bb the mere fact that the tenant is discharging its repairing obligation when
The judge accepted that the paint sprayed onto the wall by Banksy amounted to the wall being out of repair or condition 10 DECEMBER 2015 / JANUARY 2016
it removes an item does not mean that it acquires ownership of such a chattel bb even if a term might be implied regarding ownership of waste or chattels with scrap value, it does not follow that the same term should be implied regarding the ownership of a chattel with substantial value bb whatever solution is adopted, one party gets a windfall and the judge felt that the landlord had the better right to this. Presumably, the relevant slice of wall will be making its way back across the Atlantic for the enjoyment of the people of Folkestone shortly.
Fixture versus chattel Another recent case offers a good illustration of the fixture versus chattel argument – where the decision on this point had very serious and unexpected implications for the landlord. Spielplatz v Pearson [2015] EWCA Civ 804 concerned a naturist resort established in the 1930s and owned by Spielplatz. Members originally used their plots to pitch tents and caravans but tastes changed over time and the chalet on the Pearsons’ plot had been built by their predecessor in 1975. After his death, a tenancy of “the plot or clearing” was granted to the Pearsons in 1992. There was no reference to the chalet within the tenancy document, apart from an obligation to keep the “keep the exterior of any Cabin Hut or other building in GOOD repair and properly painted or creosoted”. In due course, the Pearsons came to use the chalet as a full-time residence. Spielplatz became concerned about this and served a six-month notice to quit. The jointly instructed expert in Spielplatz gave his opinion in evidence that the chalet “would have been intended to be permanent and was not mobile or movable at any point in its life”. Image © Alamy
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m The mural painting by Banksy was removed
The Pearsons contended that their chalet formed part of the plot. Their case was that, while the parties did not realise it, the 1992 letting was a “tenancy under which a dwelling-house [was] let as a separate dwelling” and therefore an assured tenancy within the meaning of the Housing Act 1988. Spielplatz accepted that the chalet belonged to the Pearsons and contended that it had only let the land under the 1992 tenancy agreement. It therefore disagreed that there had been a letting of a dwelling-house so as to attract assured tenancy protection. The Court of Appeal held that the chalet was not a chattel; it formed part of the land and the Pearsons were therefore assured tenants. The court considered it irrelevant that both parties had regarded the chalet as belonging to the Pearsons. This decision followed guidance from the House of Lords in Elitestone Ltd v Morris [1997] 1 WLR 687, where it was held that a house built in such a way that it could not be removed except by destruction could not have been intended to remain a chattel and must have been intended to form part of the land.
Repair cost recovery Moving onto a more ‘traditional’ dilapidations case, we have recently had the judgment in Consortium Commercial Developments Ltd v ABB Ltd [2015] EWHC 2128 (TCC). Here, the tenant’s
breaches of covenant at the property had not been remedied by the landlord during the four years between lease expiry and the trial date. The landlord claimed that it wished to recover from the tenant before spending money on the repairs required. The parties’ surveyors agreed that remedying the tenant’s breaches would cost £315,258 and that the works would take around 12 weeks to complete. The claimant landlord also sought loss of rent and rates during that period, amounting to £45,666. It was common ground between the parties that, given the weak state of the market in 2011, the property had little prospect of being let while out of repair. Since the landlord had failed to undertake the required works to the property, its claim for damages for disrepair was subject to section 18 of the Landlord and Tenant Act 1927. (This provides that such damages cannot be greater than the diminution in the value of the landlord’s property as a result of the disrepair.) The experts’ valuations of the premises at the expiry of the term were widely different, with the tenant contending that the section 18 cap meant a £75,000 limit on any damages claim. The judge was fairly critical of the approach of both experts to their evidence in the case. The landlord’s surveyor was described as showing “excessive subjectivity” and the judge felt there should have been more careful analysis of the comparable evidence.
He preferred the evidence of the tenant’s expert, although he noted that the figures required significant adjustment. Damages for lack of repair were held to be capped (by section 18) at £225,000. On the landlord’s claim for lost rent and rates for the 12-week period required for the works, the judge concluded from the evidence that the market in the area in 2011 was very difficult even for properties in good condition. He therefore did not feel that the property would have let promptly even if it had been in good condition and rejected this element of the claim. The judge also rejected the landlord’s claim for interest on the damages at the rate of 6% and awarded 2.5% above base rate. The landlord’s claim of almost £361,000 was therefore significantly reduced to an award of £192,910 plus interest – although this was still almost three times the £75,000 cap that the tenant had sought to impose. C
Emma Humphreys is a Partner at Charles Russell Speechlys LLP emma.humphreys@crsblaw.com @PropLitEmmaHump
Related competencies include Legal/regulatory compliance
DECEMBER 2015 / JANUARY 2016 11
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D I L A P I DATI O N S
For better or worse? The wording of a Schedule of Condition is critical to understanding repair responsibilities, as James McAllister explains
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chedules of Condition have become increasingly commonplace in commercial leases over recent years. This is largely due to well-advised tenants taking the necessary steps to avoid inheriting the disrepair left by their predecessors. Landlords also benefit from the ability to shift property that is in less than desirable condition without having to forward-fund a pre-occupation refurbishment, thus deferring the problem to a later date. Business tenants with the foresight to have obtained a Schedule of Condition at the outset of their lease may take some comfort in the fact that they have documentary ‘protection’ as to the condition of the premises at lease commencement. What they may not know, certainly at the time of signing, is just how much protection this might later afford them. As with all things legalese, it hangs on the wording.
Amended wording The validity of a Schedule of Condition will depend on its incorporation into the lease. Aside from physical annexation, this involves amending the wording of the standard repairing covenant. Occasionally, the decoration covenant will also be modified, thereby widening the reach of the Schedule. Commonly, a modified repairing covenant will obligate the tenant to keep the premises in good and substantial repair, but in “no better condition” than evidenced in the Schedule. Alternatively, the tenant may covenant to leave the premises in “no worse condition”. The layperson might be forgiven for believing both terms amount to the same thing, but the true distinction is ascertaining where the liability benchmark rests. In instances of a “no worse condition” clause, the benchmark is set at the condition evidenced in the Schedule. Therefore, the moment the property falls below the recorded condition, the liability to repair is triggered. In this situation, there is no upward limit on how far the repairing obligation might have to stretch to satisfactorily reverse the disrepair. Conversely, a “no better condition” clause means there is a ceiling on the extent to which the tenant might be required to repair the premises. Accordingly, the Schedule acts as a cap on liability, rather than a trigger, but the repairing obligation still bites when disrepair arises.
Common mistake A common mistake with a “no better condition” obligation is to simply not repair at all on the basis this may improve the 12 DECEMBER 2015 / JANUARY 2016
premises beyond the documented condition. However, this type of clause does not preclude the tenant from the duty to repair when disrepair occurs. Exceeding the condition evidenced in the Schedule may, therefore, be unavoidable. In context, the property ‘condition’ is a reflection of the repair state of the various building elements, each element attracting an individual obligation to repair. In most instances, it is implausible to only part-repair something; often only a full and proper repair will cure the underlying disrepair. For instance, corrosion cannot be reversed by a few microns or a rotten window frame cannot be returned to a partially rotten condition. Only a full repair will suffice, which may well take the condition of that element, and possibly the premises as a whole, beyond the condition recorded by the Schedule. This is an inescapable by-product of the repair process.
Proactive maintanance In rare instances, an obligation might arise to leave the premises in “no worse or better condition”, which appears to combine both concepts. This evokes a scenario of leaving the property in animated suspension since repairing or failing to repair would compromise either obligation. In reality, such an obligation connotes the intention of ensuring the covenantor adopts a proactive approach to ongoing maintenance so that the property is yielded up more or less exactly as it was demised. A further common term is to “keep in as good and substantial condition as evidenced in the Schedule of Condition”. This appears to underpin the concept of proactive maintenance with the trigger point being a fall in condition below the standard evidenced, although absent any ceiling on the extent and scope of repair required. A Schedule of Condition may convey a detailed catalogue of all defects within a property, but it is the wording of the repair clause that will determine how it is to operate and its scope in protecting a tenant from disrepair existing at commencement of the lease term. The mere existence of a Schedule of Condition may not, therefore, be the panacea to all ills. C
James McAllister is Director at The Dilapidations Consultancy jm@dilapidationsconsultancy.com
Related competencies include Legal/regulatory compliance, Risk management
LEG A L
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Vivien King considers the issues of disclosure when related to a client’s dilapidation claim
Watch your step
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isclosure is a litigation solicitor’s nightmare, but is an angle of litigation and the Civil Procedure Rules that is rarely considered in depth, if at all, by their client, witnesses or even counsel. It could, however, bring proceedings to a grinding halt. Consider, for instance, a building surveyor’s file (whether stored as paper or electronically) relating to a client’s dilapidation claim. It may contain scribbled notes questioning whether items fall within the meaning of the lease, or emails (albeit marked ‘confidential’) from the client confirming plans to demolish the demised premises or to the client giving an estimate of recoverable sums woefully below the claim. The tenant’s building surveyor’s file may be equally revealing. Would those building surveyors want their files placed before the other side and the court? No. Could they be? Yes.
List of documents A party to litigation or more usually their solicitor, an officer of the court, has a duty to prepare a list of documents (however stored) within their control that support or adversely affect its case or that of another party. Would building surveyors’ files fall into that category? Yes. Once listed, other parties to the litigation and the court are entitled to inspect those documents unless ‘privilege’ is claimed. Nor does the duty to disclose end with the creation of the first list – it continues throughout the litigation process.
First, let us deal with some of the obvious questions: bb Is an instructed building surveyor’s file within the client’s control? Documents that come into existence on the instructions and for the benefit of a paying client will generally be owned by the client. So, yes the file will be within the client’s control. bb What happens if a disclosable document is destroyed? Its former existence must still be disclosed with an explanation, sometimes embarrassing, as to what happened to it. So, shredding a document assists no one. bb Is a document that is marked ‘confidential’ disclosable? While this tag may prevent anyone to whom the document is given showing it to anyone else, it is no protection against the court’s disclosure rules in litigation.
Privilege When can privilege be claimed to protect a document from disclosure? There are two occasions – when legal professional privilege applies and when it would be adverse to public policy to disclose the document. Legal privilege protects documents seeking and/or obtaining legal advice from the client’s lawyers and second, documents coming into existence as the client’s lawyers contemplate, pursue or defend litigation and are for the dominant purpose of that litigation. So, if the client’s lawyers are investigating details of a claim or defence or questioning or investigating potential witnesses, the consequential documents will not be disclosable. Remember, however: the privilege is legal professional privilege and will not protect Image © Shutterstock
advice from or investigations conducted by other professionals unless in answer to the lawyers’ requests.
Policy protection Public policy protects certain other documents from disclosure, for example, those relating to defence of the nation or much more commonly come into existence in an attempt to settle a dispute and are marked ‘without prejudice’. Use of these words enables the parties to conduct their negotiations without fear of proposals prejudicing their position. However, use of the words in other contexts (e.g. in advice given to a client by its surveyor) will not protect the document from disclosure. So, disclosure is not only an important step in the litigation process, it can prove embarrassing or even fatal to one or both parties. And if it is suspected that documents exist which have not been disclosed, a party can make an application to the court for specific disclosure. This is an expensive step and cannot be taken without evidence – it is not an opportunity for a party to go on a fishing expedition. Finally, take the process seriously too if you expect to be appointed an expert witness when previously instructed in the role of an adviser. What do you have on your files that may need at best an explanation and at worse, a stand down from your now expressed opinion? C
Vivien King is a consultant to Malcolm Hollis vivienking@malcomhollis.com
Related competencies include Legal/regulatory compliance
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LEGAL
Laurence Cobb looks at two recent cases that illustrate the issue of payment notices
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Holding back the waves
The issue of payment notices continues to be prominent. In the wise words of Coulson J in the recent case of Caledonian Modular Ltd v Mar City Developments Ltd [2015] EWHC 1855 (TCC): “One of the more baleful effects of the amendments of the 1996 [Housing Grants, Construction and Regeneration] Act has been a large increase in the number of cases before adjudicators (and thus before the Technology and Construction Court (TCC)) in which the claimant contractor argues that there was an automatic right to payment in full of the sum claimed.” In Caledonian and also in the recent case Henia Investments Inc v Beck Interiors Ltd [2015] EWHC 2433 (TCC) the court has looked at the thorny issue of pay less notices and provided more guidance. In both cases, it was found that there had been an attempt to argue a failure by the potential payer to prevent payment being due.
Payment notice date In Caledonian, Mar City engaged Caledonian to carry out works on a letter of
intent, which was agreed by the parties to be a construction contract. The argument centred around the date a payment notice was validly submitted, a crucial issue because this would determine whether an adjudication decision could be enforced. Generally, the court will not look at an issue ruled on by an adjudicator, but in this case the issue was short and self-contained and required no oral evidence. In summary, Coulson J found that the papers claimed to have been submitted by Caledonian as a payment notice did not constitute a valid payment application, being described as a “final account application summary” and an “updated account”. Further, Caledonian’s previous 15 interim applications were clearly stated as applications for payment, unlike the one being considered. It was a mockery of the notice provisions to provide for a scenario where an interim application was submitted, correctly challenged by a valid pay less notice, and then allow a claiming party to add a small variation, resubmit another application and hope that this would be ignored or not challenged in time, thus giving the claiming party a potential windfall. The Caledonian case certainly emphasises the need for a claiming party to describe its submissions and their nature clearly, and as
14 DECEMBER 2015 / JANUARY 2016
usual Coulson J applied a healthy dose of good sense to this area of great concern to the industry. But such interventions on the facts are rare and not to be relied on as a lifeboat to those in trouble with their notice procedures.
Timing The Henia Investments case also addressed the timing of payment and pay less notices. It was found that neither parties had followed the contractual requirements of the payment regime under the contract. Interim application 18 was issued six days late and both interim certificates 18 and 19 were issued late. Nor was it clear to which date interim application 18 related. The court said that it was crucial that any interim application must be clearly identifiable as such to avoid ambiguity. Interim application 18 was not “free from substantial ambiguity” because it was unclear whether it applied to the April or May due date, and was therefore invalid. The case further looked at the ability of the client to serve a potentially valid pay less notice if it disagreed with the view of the contract
administrator. It was found that on the facts of the case the employer could have issued the pay less notice in such circumstances, raising the question as to whether a contract administrator, knowing that the client disagrees with its certificate, should point out that it has the option to serve its own pay less notice. If we look at the Caledonian and Henia cases, it can be suggested that this shows a trend by the courts to address potential smash and grab adjudications by claiming parties where technical breaches of payment procedures may not reflect what is due on the merits of the case. Whether or not that is the case, and however welcome such an approach may be to those managing projects, unless those in control of client purse strings take the greatest care in administering the payment processes and regimes under construction contracts, the courts for all their efforts to deliver good sense, may have similar success to King Canute in keeping the tide back when it comes to windfall claims. C
Laurence Cobb is Partner at law firm Taylor Wessing lcobb@taylor.wessing.com
Related competencies include Legal/regulatory compliance, Conflict avoidance, management and dispute resolution procedures
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DECEMBER 2015 / JANUARY 2016 15
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E N E R GY E F F I CI E N CY
Abdul Choudhury discusses how the failures of previous energy efficiency policies can help to inform new initiatives
Staying power
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y ceasing funding of the Green Deal Finance Company, the UK government essentially scrapped the previous administration’s ambitious flagship energy-efficiency programme (see Building Surveying Journal October/November). However, the second energy-efficiency policy, the Energy Company Obligation (ECO) scheme, will continue to provide support to low-income and vulnerable households, having delivered 97% of home improvements over the past two years. A replacement for the Green Deal will likely draw on experience from both policies.
the Energy Act 2011, as of April 2018 the government will make it unlawful to rent out a house or business premises with less than an E energy efficiency rating, meaning that at least 682,000 properties will have to be improved. This was also to be underpinned by the Green Deal, which serves as a backstop mechanism for improvements and is now possibly under threat. Furthermore, as of April 2016, landlords would not have been able to refuse reasonable requests from tenants or local authorities acting on their behalf to improve their property up to Green Deal standards. Without these duties, there are no policy incentives or mechanisms in place to support the private rented sector in improving its energy performance.
Carbon cut targets
The independent review
The Green Deal was designed to deliver legally binding carbon reduction targets and tackle issues such as fuel poverty, rising prices, pressure on resources, energy security and economic growth. The scope of its ambition was summed up by Greg Barker, the former Minister of State for Climate Change, who hoped that it would reach 14 million homes within the decade. However, in terms of performance, from its start in 2013 to March 2014 the total number of Green Deal plans was just 2,000 and Green Deal Assessments 188,234, making it very unlikely that the ambitious target can be reached. Although well intentioned, the policy was not that ‘green’ or really a ‘deal’, as high interest rates for the loans and issues with delivery of energy and cost savings has demonstrated. The link to related policies such as Minimum Energy Efficiency Standards (MEES) was tenuous, and the change also put this initiative under threat (see http://bit.ly/1W4qeeU). Introduced in
The government is working up an alternative to the Green Deal for domestic properties and has commissioned an independent review led by Peter Bonfield, Chief Executive of BRE Group, to look at standards, consumer protection and enforcement of energy-efficiency schemes. At a recent review workshop, clear concerns emerged around skills and quality control. This suggests a replacement scheme may attempt to address earlier shortcomings. On the skills front, assessment and advice on home improvement measures was felt to be inadequate. This led to the installation of inappropriate measures that did not deliver the level of savings necessary to pay for themselves. Moreover, there was a lack of understanding on the impact of different alterations and how they interact. In a sense, the assessment amounted to a simple exercise in data capture. This, in turn, had a direct impact on the quality of measures installed, again
16 DECEMBER 2015 / JANUARY 2016
impacting on performance and savings. Reflecting the need for continued quality assessment throughout the installation process and beyond, the upfront costs are likely to be higher.
Skilled professionals There are, of course, professionals with the skills and experience to carry out such work effectively and ensure quality, but not nearly enough. The government’s recent announcements on funding for apprenticeships present a real opportunity for industry to grow and meet the challenges ahead. However, given the uncertain nature of energy policy over the past few years, commitment is hard to guarantee. The need to improve energy efficiency in the UK’s housing stock is of vital importance if the country is to meet its carbon and energy reduction targets. To maintain the existing stock of poorly performing buildings, ways must be found to make them fit for purpose. Currently, the crux of the issue is the lack of conviction and clarity in policy. Amid this level of uncertainty, industry cannot take the necessary steps to prepare for the future or to grow the energy-efficiency sector and the skilled professionals that go with it. C
Abdul Choudhury is RICS London Policy Officer achoudhury@rics.org
Related competencies include Construction technology and environmental services, Conservation and restoration, Sustainability
SUSTA INA BILITY
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Elina Grigoriou discribes the take up of the SKA rating assessment method by the higher education sector
Moving up
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trong growth and greater familiarity with sustainable practice within the interior fit-out arena has seen new sectors and countries look at adopting the SKA rating assessment method. In higher education facilities, thousands of refurbishments are undertaken each year, large or small, often with highly specialised requirements and limited budgets. Construction windows create a constant challenge for optimal design, operational effectiveness and minimal environmental impact. For these reasons, many university facilities teams identify SKA as a common method of communicating, incentivising and measuring sustainable practice in their fit-out projects. SKA rating for higher education (SKA HE) is planned for release in early 2016. The scheme is supported by the Association of University Directors of Estates, University College
London (UCL), Rider Levett Bucknall, Grigoriou Interiors, Overbury and AECOM, in addition to the SKA Technical Committee and a wider industry research team. Developed to assist interior fit-outs and refurbishments meet clear sustainable good practice, SKA HE evolves from the existing SKA rating methodology to reflect the specific estate requirements, which usually encompass a wide range of space uses and occupants.
Revising criteria Criteria have been drawn from current SKA rating for office and retail schemes with adaptations for lecture theatres and other teaching and learning spaces, while additional measures have been developed to deal with laboratories and other specialist spaces. Many higher education providers are already involved in the development of SKA HE, including UCL, the Universities of Liverpool and Manchester, City University and Goldsmiths, using existing versions of SKA rating. They praise its clarity and simplicity, seeing it as a cost-effective
Sustainability goal UCL has adopted RICS SKA to promote good practice in sustainability across its portfolio of projects. As a result, we have delivered significant savings as well as ensuring that the university is acting responsibly. We have also supported the upskilling of UCL project staff, enabling them to get a better understanding of our sustainability goals. Richard Jackson, Director of Sustainability, University College London
and flexible means of dealing with smaller scale projects that do not warrant a full refurbishment assessment. Both UCL and City University have sent internal staff on RICS training courses to become accredited assessors. Free use of the tool and method of self-assessment make it an attractive alternative to the large human resources required for other schemes. Universities currently using the system report that SKA has not added capital cost and has encouraged operational savings. It is also credited as an effective means of educating framework suppliers on university requirements.
Reducing waste A significant evolution of the scheme involves upgrades to the waste and resource management issues. Industry commitment to monitoring, managing and reducing construction waste has been a huge success, with the majority of contractors embedding stringent targets as standard practice. SKA HE aims to include total project resource management, bringing reuse, repair and reduction strategies into the design process where it can have the biggest impact. It is felt that the industry is ready to bring sustainable resource management even closer to the dilapidations
process; both landlords and tenants should search for economical solutions that minimise materials wastage in dilapidations and new fit-outs.
Retail rating Following the addition of the HE scheme, an updated release of SKA rating for retail is scheduled for 2016. A list of SKA-compliant products can be found at www.rics.org/ska and the searchable directory at www.specifinder.com. The number of individuals registered on the online tool has increased by a quarter year-on-year, and certified assessments have more than doubled annually to 402 projects in October, up from 336 in April. Fit-outs achieving the highest SKA rating level of gold increased from 22 in 2013 to 106 by October, while the number of silver certificates has trebled and those achieving bronze has more than doubled. C
More information > The online system and Good Practice Measures requirements documents are free to use and accessible at www.rics.org/uk/knowledge/ ska-rating The SKA rating team also welcomes feedback on the current schemes.
Elina Grigoriou is Design and Sustainability Director at Grigoriou Interiors, SKA rating Technical Editor and Chair of the Technical Committee elina@grigoriou.co.uk
Related competencies include Construction technology and environmental services
DECEMBER 2015 / JANUARY 2016  17
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I N D U STRY E D U CATI O N
Understanding the future educational, professional, and technical demands of building surveying is essential to remain relevant, says Dr Kevin Thomas
Planning ahead
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uture professional and technical demands came under the spotlight at this year’s RICS Building Surveying Conference, when more than 520 delegates took part in a debate under the banner of education, skills, and engagement. As one of the invited panel members in this debate, I would like to outline the main points of the discussion and also expand on this topic more widely for the benefit of the members who were not present. Firstly, education: this is of major importance to the future because the majority of new members are still produced through the graduate route via RICS-accredited university courses. There are currently 26 RICS-accredited building surveying degrees in the UK delivered at universities, and a small number of accredited international degrees. This reflects the constitution of the building surveying membership, which is still heavily UK-centric with only 10% being non UK-based. By contrast, surveying professions — such as commercial property and quantity surveying/ construction — have a much larger proportion of international members.
Course relevancy It is imperative that building surveying degree courses are current in terms of the subjects they deliver, to ensure graduates in the pipeline have the required knowledge, skills and attributes to meet the needs of stakeholders when they are employed (see Building Surveying Journal, March/April 2015). To inform the discussion at the conference, a short survey was prepared 18 DECEMBER 2015 / JANUARY 2016
It is imperative that building surveying degree courses are current in the subjects they deliver and circulated to leaders of all the UK building surveying degrees. This looked at how relevancy is maintained, engagement with the profession and trends in sandwich placement opportunities and numbers of applications. To ensure relevance, all respondents confirmed that they regularly review their academic content against RICS APC competencies. This is now a key component of maintaining accreditation of the degree through the RICS partnership agreement. They also all confirmed that they hold regular, normally twice a year professional/employer liaison meetings with key stakeholders. These are professionals with local, national, and in some instances international profiles. Practitioners are also used extensively to deliver guest lectures on relevant and current topics and assist with assessment of student work, normally linked to ‘live’ projects. These activities for ensuring relevance also cover in the most part how engagement with the profession occurs. There are further examples around placements for sandwich students and how these allow direct interaction with employers on a regular basis. As for student placements, there has been a
steady decline in opportunities since 2008 although there are encouraging signs of increasing interest from employers. The average placement employment rate is around 50% of a cohort, although the majority of students who wish to undertake the year out do so.
Applications recovery With regard to numbers applying for building surveying degrees, from a low point of 2013 there are signs of a slow recovery upwards for full-time provision. My own institution, Northumbria University, saw a 41% rise in applications for September 2015 entry compared to the previous year. However, part-time study has been severely impacted by the long recession and has almost disappeared. Some universities are running classes with only one or two students in years one and two, albeit they can be combined with full-time students in most but not all instances. This was a conscious decision to ensure a service was provided to the local stakeholder employers. It has to be acknowledged that, ultimately, universities educate and do not train, albeit there are elements of skill development within the curriculum, such as CAD/Revit software training. There is Image © Patrick George
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therefore the likelihood that graduates have skills gaps and intervention in some way may be required to improve this.
Mentoring scheme The Building Surveying Professional Group (BSPG) Board has been proactive in developing a mentoring scheme to help young graduates get work experience or shadowing opportunities and assisting with APC queries and preparation. Still in its infancy, wider success can only be achieved through a larger network of committed individuals. Please contact me if you would like to take part. The board has also established regular contact with almost all of the UK building surveying degree providers, visiting the universities and speaking to their students. This has proved successful in strengthening relationships and raising awareness. A significant issue we face is around diversity and the lack of female members
in particular. The university graduate pipeline unfortunately reflects this position, in stark contrast to architecture, for example, where the majority of students and graduates are female. There is a lack of suitable building surveying female role models. We need to ensure that women feel they can put themselves forward for promotion to more senior positions. The feeling at the conference discussion was that perhaps overall support is lacking. According to the RICS and Macdonald & Company Rewards and attitudes survey 2015, women frequently earn less for doing the same job than their male counterparts (http://bit.ly/1FYo1ZP). Company policies can make it difficult for women to return to work after having children, and unconscious bias continues to plague the industry. This means we are currently missing out on an area of recruitment for students and therefore graduates. Although the BSPG student initiatives may improve the situation, there is a wider issue related to the marketing of the profession and here RICS has a key role to play. We also need to consider the more innovative areas of work we engage with, and promote these in schools. Pupils may be enthused by the use of innovative technologies including IT, 3D imaging and modelling, for example.
Pay and fees The discussion also considered the relative position of the building surveyor compared with other surveyors. Although certainly not underpaid, building surveying is one of the lowest average salaried areas of surveying. According to the RICS and Macdonald & Company survey, on average facilities managers are paid 24% and project managers 34% more than building surveyors. We need to reinforce to clients the added value that we bring to what we do and state that we will deliver it as specified, whatever the service offered. We may also, however, be culpable as we strive to ensure sufficient business for
We need to consider the more innovative areas of work we engage with, and promote these in schools
our organisations to survive and look to undercut competitors. The BSPG is considering putting together a standard Scope of Service to create more transparency in what we offer and to allow potential clients to compare offers more easily. However, this is unlikely to be an adequate replacement for the previous fee scales, which were finally withdrawn in 2000 after the Monopolies and Mergers Committee considered them to be anti-competitive and operating against the public interest. The final part of the conference discussion focused on possible changes in the type of work that building surveyors may do in the future. The tension between more managerial and strategic opportunities versus those more technical based was apparent. There is a perception that building surveying degrees are following the management path, but this is not totally accurate. The programme leader survey indicated that the most important subjects in the curriculum were building pathology, construction technology, law (i.e. dilapidations) and building surveying practice, highlighting a focus on traditional technical areas. There has, though, been a rise in required management skills and this is predicted to continue with more collaborative working and the reviewing of large amounts of information prepared by others. The service nature of what we do means there will always be changes in our clients’ demands. We need to be ready to accept those changes, otherwise other professionals will be ready to step into our arena and undertake the work. Considering the implications now will give us the opportunity to plan ahead and future proof our unique position as chartered building surveyors. C
Dr Kevin Thomas is Head of Department of Architecture and Built Environment at Northumbria University and a member of the Building Surveying Professional Group Board kevin.thomas@northumbria.ac.uk
Related competencies include Construction technology and environmental services
DECEMBER 2015 / JANUARY 2016  19
RICS B UI L D I N G SU RV E YI N G J OU R N AL
I N S U L ATI O N
Internal wall insulation offers opportunities for energy saving, but the choice of product requires care, says Philip Smith
Attention to detailing
T
o begin with, a few statistics: around 30% of buildings in the UK have uninsulated solid walls— more than eight million — and space heating contributes around 75% of energy use in buildings. Given that around 45% of heat loss in the average solid-walled property passes though the walls, if roof/loft insulation and double-glazing have been installed, solid wall insulation appears the next logical step to reduce heat loss, promising huge savings in energy and carbon emissions. Insulating the walls externally may be the more obvious choice, but external wall insulation is not generally permitted to front walls in conservation areas and normally requires costly alterations to roofs and reveals. The alternative is internal wall insulation (IWI), although this requires careful consideration of detailing and thorough preparation to avoid pitfalls.
Product range The range of products, systems and materials available reflects the varied technical and economic requirements of the marketplace. Rigid insulation boards formed of phenolic foam, polyurethane, polyisocyanurate or wood-fibre are fixed mechanically to studwork or by dot and dabs. Aerogel Spacetherm claims to have the highest thermal performance (measured in U-values and R-values), albeit at considerably higher cost than comparable rigid-board products (around £150). Some products cope better than others with damp. Expanded and extruded polystyrene products (EPS and XPS) can be installed in locations where condensation is an issue and vapour permeability is not required, such as window reveals. Alternatively, mineral wool batts can be inserted between studwork. Knauf provides an integral system that uses thermally-engineered studs with XPS bonded to oriented strand board (OSB), 20 DECEMBER 2015 / JANUARY 2016
which can be prepared off-site. For larger scale insulation projects, wet-sprayed cellulose also offers large economies of scale and can fill gaps otherwise inaccessible. Those wishing to address the broader sustainability agenda of low-embodied energy might prefer natural, less processed materials such as sheep’s wool, hemp, cotton or natural fibre, or wood-fibre. Advocates claim the new finishes provide a healthier environment due to greater thermal comfort and the radiant heat of the surroundings. However, slightly thicker insulation layers might be required to achieve the target U-value. Insulating the inside of solid walls results in a marginal reduction in floor area, so it is worth checking the thickness required to achieve the target U-value. Whether or not this is significant enough to affect the property value depends on its location. However, the visual impact can often be mitigated by design. For example, the splayed corners of the window bay and bookshelves can conceal insulation that is returned along the back of the alcove to prevent thermal bridging. Not all insulation products on the market provide significant improvement in thermal efficiency, so it is always worth checking the U-value would comply with Building Regulations for improved external solid walls before selecting. Part L1B stipulates a U-value of 0.3W/m2K, and similar criteria apply under Part L1A.
services. Cold bridging can also occur through the insulation’s fixings and some systems provide thermally-broken screw fixings. BRE’s Good Practice Guide 183 Minimising thermal bridging provides a set of recommended section details. Internal insulation reduces the temperature of the masonry wall to which it has been applied. Academic research indicates the increased risk of frost damage in UK building stock is not significant. However, the insulation causes a shift in the dew point, potentially resulting in interstitial condensation. This may damage external wall finishes. Opinion is divided about how to manage moisture when insulating walls internally. Some systems incorporate a vapour barrier to the inside face. Other so-called breathable systems allow vapour to pass through both insulation and brickwork. Where a vapour-closed method is used, vapour barriers need to be continuously sealed and taped at edges to prevent moisture bridges. Adequate ventilation to internal spaces l Windows require particular consideration
Thermal bridging The effectiveness of insulation depends on how well it integrates with other building elements that conduct heat more efficiently. Insulation must overlap at junctions and not be compressed excessively. Ill-conceived detailing at junctions may compromise its performance and lead to condensation and the ensuing problems. Particular consideration should be given to window reveals, unvented joist ends, partition walls, the eaves junction and penetrations for building Images © Philip Smith
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l Wood fibre board is one choice for insulation
l Rigid polyisocyanurate boards are fixed with battens
l Splayed corners to a window bay conceal insulation that runs behind a bookcase
is then all the more important to avoid problems associated with condensation.
The installation process Careful consideration should be given to the practicalities of installing each product and selecting the system that best suits the circumstances. For example, one might think twice about specifying heavy 2.4m rigid boards to upper floors in a high-rise block. One manufacturer has produced an automated installation system with laser measurements, which allow batts to be pre-cut off-site. Time is paramount, given the cost of labour and decanting owners or tenants, but allowance is needed for preparing walls, for example, hacking off plaster and sealing damaged brickwork. Personal protective equipment is particularly important for installing mineral wool and some rigid boards that produce fine dust. Electrical cables will be exposed and may require upgrading for fire safety. Studwork must support the load of fixtures such as radiators, curtain rails and shelving, which must be refitted, along with light fittings and sanitary appliances. Many owners choose to refit decorative coving, dado rails and the like. Close supervision of installation work (or ‘upskilled’ personnel) is necessary to
ensure high standards of workmanship. Careful measurement and precision fitting is required to reduce thermal bridging and avoid breaks in vapour barriers. Insulation should be refitted where necessary to avoid small gaps which would make a big difference in thermal performance.
Regulatory compliance Multiple tenure remains the greatest legal hurdle, because occupiers often lack a long-term interest in the building and generally require freeholder consent to undertake alterations. In addition to Building Regulations Part L1B or L2B requirements, consideration should be given to Part B, appendix A relating to the spread of fire and minimum required periods of fire resistance, Part E (sound resistance) and Part F (ventilation). Part M (access) restricts the minimum width of new stairs to 1,200mm, which could limit insulating stairs internally. Listed building consent and the Party Wall Act may apply in some instances. In one recent case, (Kelliher v Ash [2013]), the judge concluded the particular method used to remove plaster was notifiable under the Act. The regulatory body Solid Wall Insulation Guarantee Agency provides guarantees for solid wall insulation (www.swiga.co.uk).
The greatest economies of scale can be achieved by more efficient installation processes. It is the labour that costs the most, not the materials. Precise financial payback periods will be unique in each case. Naturally, better cost savings can be achieved when installing IWI as part of an existing refurbishment project, and for larger-scale insulation schemes. Until recently, the upfront cost of IWI provided a strong disincentive to private owners. Funding from the Green Deal and grants such as the Energy Company Obligation removed this barrier. However, the Green Deal did not achieve the anticipated uptake after its release in 2013, with its over-complex and lengthy implementation process seemingly its greatest weakness. The scheme relies initially on automated reports generated from fixed data entry on site. Installing IWI clearly requires careful consideration of the technical issues summarised above, in particular, with regard to thermal bridging and moisture management. I am sceptical whether the Green Deal’s profit margins permit the detailed consideration or have the capacity to calculate and inform owners accurately of the cost benefits of each measure. In any event, the current government has withdrawn funding with no promise of reinstatement on the horizon. The potential benefits of IWI are clear from a statistical perspective, even though the improved thermal performance may not be immediately apparent to the occupier following installation. Installers must be aware of the inherent pitfalls and hurdles, and the level of quality control required to achieve the full benefits of improved thermal efficiency. But given the great opportunity it offers to make huge savings in carbon emissions and to reduce the nation’s dependency on imported fuels, sooner or later its value will fall under the spotlight. The ball is now in our court. C
Written by Philip Smith as a Building Surveyor at Watts psmith@sustainablerenovation.co.uk
Related competencies include Construction technology and environmental services, Conservation and restoration, Housing maintenance, repair and improvements, Sustainability
DECEMBER 2015 / JANUARY 2016 21
RICS B UI L D I N G SU RV E YI N G J OU R N AL
LEGAL HELPLINE
Legal Q&A A global claim
Q
My architect has given my contractor a six-week extension of time as a result of 50 small variations. The contractor is now claiming loss and expense for the delay but says it cannot provide any details of the individual affects and has grouped it all together. My architect tells me that the contractor has failed to prove any loss so no money is due. Who is correct?
> Charles Blamire-Brown
A
On the face of it, this is a classic example of a global claim: the contractor has failed to particularise which losses have been caused by which variations. In my experience, global claims tend to spark rather extreme reactions. On the one hand, there is the temptation for the employer/contract administrator to dismiss a claim outright at the mere hint that it is global in nature. The allegation is made that such a claim offends the principle that the contractor must establish that the losses claimed were caused by the employer risk events (the variations in this instance). In failing to do so, the contractor is effectively reversing the burden of proof. Such a claim also ignores other explanations for the cause of the claimed costs, for example shortcomings in the contractor’s tender or performance and/or events which are the contractor’s risk. On the other hand, the contractor protests that the employer should not be allowed to benefit from its inability to demonstrate the causal link between the employer risk events and the losses arising where this complexity has been of the employer’s own making. Middle ground There is a middle ground: just because a claim is global in nature does not of itself mean that it can be dismissed outright. In Walter Lilly & Company Ltd v Giles Patrick Cyril Mackay and another [2012] EWHC 1773 (TCC), the court held that the contractor needs to prove, on a balance of probabilities that: bb events occurred that entitle it to loss and expense bb those events caused delay and/or disruption bb such delay or disruption caused it to incur loss and/or expense. In our scenario, the contractor will need to establish firstly that the variations entitle it to recover loss and expense. 22 DECEMBER 2015 / JANUARY 2016
+info Charles Blamire-Brown is a Partner at Pinsent Masons LLP charles. blamire-brown@ pinsentmasons.com
Let us assume that the contractor is operating under a JCT Design and Build Contract (2011). Clause 4.20 entitles the contractor to recover loss and/or expense in circumstances where the regular progress of the works has been/is likely to be materially affected by a relevant matter, which includes a change (or ‘variation’). However, there are a number of condition precedents to being entitled to make a claim. For example: bb the regular progress of the works must be ‘materially’ affected by the variations bb the contractor must make its application as soon as it has become, or should reasonably have become, apparent that regular progress has been/is likely to be affected bb the contractor must also provide information and details to support its claim as the employer reasonably requires. If these requirements are not met, there may be grounds for dismissing the claim outright. Delay or disruption The contract administrator has already awarded a six-week extension of time in respect of the variations, and thus the contractor is likely to be entitled to certain prolongation costs relating to this delay. It is not clear however whether the variations caused, and/or the contractor is claiming for, any disruption costs or other loss and expense. Indeed, a claim for loss and expense might include a number of costs, for example: bb prolongation costs, including site as well as off-site overheads (head office costs) bb disruption costs arising from a disturbance, hindrance or interruption of a contractor’s work progress resulting in lower efficiency or lower productivity than would otherwise be achieved bb loss of profit bb finance charges bb interest. The problem comes in establishing that the losses claimed were caused by the events in question. In terms of prolongation costs, albeit an extension of time may have been awarded of six weeks, it will be necessary to establish when the prolongation costs were actually incurred. Also just because a contractor is entitled to an extension of time for an employer risk event notwithstanding that it is concurrent with a contractor risk event, the same is not generally true in respect of its entitlement to recover loss and expense. C
A PC
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Ewan Craig a speaker at the RICS annual ‘It’s Your APC’ conference, outlines the core competency of works progress and quality management
W
A matter of time
Works progress and quality management is one of the optional competencies of the building surveying Assessment of Professional Competence (APC). It is allied to the core competency of contract administration, encompassing the monitoring of works under the various forms of contract and procedures used in the construction industry.
The levels At level 1 Inspect and record progress and quality of building works. At level 2 Report and advise on the adequacy of progress and quality of building works. At level 3 Manage and coordinate progress and quality of building works as a contract administrator/supervising officer or equivalent. You should be familiar with the works progress and quality management issues in your submission documents and be ready to address questions on them and aspects related to them.
Questions Actual questions are based on the candidate’s experience,
which should be at level 2 but could exceed this. Two examples are given below. You found some defective work to the roof during the refurbishment of property X. Could you please explain your inspection and reporting of this for the works quality and progress? This is aimed at level 2. It could, however, be extended to level 3 if you act as the contract administrator. The answer would explain pertinent issues to support your application of knowledge. The contractor was about a third of the way through the works to refurbish the four-storey building under a traditional contract using the JCT Standard Building Contract. The works included the replacement of the pitched roof covering in artificial slate. I monitored the works on a regular basis and works were generally progressing well. On site, I noticed that the recently fixed roof battens were too small and did not comply with the contract documents. I also noticed a different type of artificial slate to the specification had been brought to site. A particular colour and style of slate had been specified, following agreement with the client and the planning authority. The contractor’s substitute slate was noticeably different. I followed the contract and RICS guidance notes, making notes and taking photographs of the battens and slates for our records. I informed the contractor on site about the battens and slates;
they confirmed that these were incorrect. I informed the contract administrator, who issued a contract administrator’s instruction to the contractor to rectify both matters. The approach informed the contractor at the earliest opportunity so minimising any potential delay and the contractor confirmed the critical path was unaffected. The approach also demonstrated to the contractor and client that we were diligent in our role and that a record was created if required later. You reported on the effect that a client change for additional work would have on project Y. Please explain how you arrived at the report and its effect on the project? This is aimed at level 2. However it could be extended to level 3 if you act as the contract administrator. First, I gained further details. I then quantified the change in accordance with the provisions of the contract, JCT Standard Building Contract. I followed this and the guidance notes to assess the change. The redecoration of an additional internal area,
adjacent to the works, was similar in character to the existing contract rates. As the change was prior to the programmed redecoration and the additional area was relatively small, it could be accommodated. I also considered the conditions, quantities and preliminaries, which would not be adversely affected. In liaison with the contractor, they agreed in writing that the additional redecoration was independent of other works and would not impact on the critical path. I reported the increased financial implication using the contract rates and that progress would be unaffected.
Care Given the time constraints of the APC your answer should give a brief but whole response. The answers given above are not exhaustive; care should be taken to demonstrate your own skills, abilities and knowledge to the assessors. C
More information > For details on the APC pathway guide for building surveyors, visit http://bit.ly/1qBVUhw
Ewan Craig is an APC assessor and the Programme Leader for the BSc [Hons] in Building Surveying at the College of Estate Management e.craig@cem.ac.uk Related competencies include Contract administration, Contract Related competencies include practice, Construction technology Legal/regulatory compliance, and environmental services, Works Sustainability progress and quality management
DECEMBER 2015 / JANUARY 2016 23
RICS B UI L D I N G SU RV E YI N G J OU R N AL
D I V E RS I TY
Heather Rabbatts talks to Barney Hatt about the benefits of embracing diversity and inclusion
A different view RICS is trying to grow its membership: 50% are aged over 50 and only 13% female. How should the organisation go about doing this? For any organisation, its survival and future growth is dependent on the talent it embraces. As a membership body, you need to be reaching out to all of the younger people coming into the industry — both men and women — and demonstrating how you will support their ongoing professional development. What steps need to be taken to attract new members from more diverse backgrounds? There are a variety of ways, such as offering members an insight into the sector, showing them how they can progress in their careers and ensuring that this is done by a diverse mix of male and female speakers. RICS is a global body, so having people talk about their experiences working in other countries is one way. If you take a step back and think globally, the organisation is probably much more diverse than you see it. It is partly about trying to make these connections. Whether it is what your website looks like, when you gather your members together, and who you have sitting on your boards. It is about ensuring that they are people with the experiences and backgrounds to take your strategy forward, so you get a real 360° view of the world in which your sector is operating. Do you think, for example, there could be a danger in always relying on the same names to make presentations at RICS conferences? In any sector, one reaches for the usual suspects; it is important to use the leading lights. But I do think having other voices is important. I was talking recently to some heads of FTSE companies about the diversity of thought, and we all recognised 24 DECEMBER 2015 / JANUARY 2016
that bringing in people from other sectors and drawing on different sets of experiences and skills really adds value to board conversations. I have spoken at conferences in sectors with which I have no involvement, but there is always transferability of knowledge. I think the best conferences get people to step back from their day jobs and look at the world slightly differently. One of the reasons is that there are usually some things in the culture that need to change. Good boards bring experiences from other sectors to bear on those problems. These are universal issues we are all trying to address: how do you manage change, how you deal with uncertain environments and uncertain futures. People’s careers look very different to 20 years ago when many progressed in singular organisations. Now people are moving and forming their own companies. All of these issues are challenges and relevance is hugely important for bodies such as RICS. I was on the board of Crossrail for six years. I chaired audit and risk of huge engineering and construction challenges. We were working with incredible engineers, as well as construction companies, but I believe that I added significantly to the deliberations on how the project was seen strategically. If you want to drive up membership and reach out to younger people and those from different backgrounds, then leadership needs to come from the most senior level of an organisation. Your senior executives and boards need to be reflective of where you want to drive the organisation, because those voices around the table will have ideas about how best to do that. The reason to organise diversity conferences, as RICS has done, is to take insights from those conversations and see how you can implement them in your own organisation. Image © Shutterstock
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What can be done to attract and retain talented professionals regardless of social background, ethnicity, religion, sexuality, disability or gender? It is about how you reach out to people. When they visit your website do they think it relates to them. Do they see images of people doing different things that speak across their range of skills? How do you ensure relevance across all your communications so that people think “I would like to go to that workshop” or “I would like to go to that conference”, for example. How do you get people to network, and how do you bring in external speakers so that people think ‘oh I hadn’t thought of that’. The answer is ensuring the organisation has a real sense of purpose and is also bringing on members for the future. You need that fresh blood coming through consistently. What are the business benefits of diversity and inclusion policies? Increasingly, research being carried out in the US and UK shows that where boards have diversity of thought as well as race and gender, businesses have performed better in terms of their profitability and return of shareholder value. This body of evidence is growing all the time. In a globalised business, if you ignore 50% of the population in terms of talent and are drawing from a very narrow cultural range, you are not going to make the best business decisions. My experience working with RICS members at Crossrail was that a number had worked in Hong Kong and Singapore, for
example. Big infrastructure projects by their very nature are international, and being involved in those projects is crucial as you are building your career. Ensuring that international knowledge gets embedded into the organisation is key. It is also a great asset in terms of the inclusion agenda because people are working in different cultures with people from different backgrounds. So hearing those different voices in your conferences or your professional development courses is a very rich source of insight. Ideally, having one speaker who is able to talk about what is happening to the industry globally from personal experience would be really valuable. C Heather Rabbatts CBE began her career as a barrister before becoming a senior executive across a number of sectors including government, media and sport. She is currently Managing Director at Smuggler Entertainment, a Director at the Football Association, and a member of the Royal Opera House Board of Trustees. Barney Hatt is Editor of Building Surveying Journal bhatt@rics.org Related competencies include Conduct rules, ethics and professional practice, Business planning
Building Surveyor Carless & Adams Partnership LLP is an established and independent multidisciplinary construction consultancy offering Architecture, Building Surveying, CDM Advisor, Quantity Surveying and Project Management services to a variety of clients within the commercial, educational, healthcare and residential sectors. To meet the demands of our expanding client base, increasing workload and planned expansion, Carless & Adams Partnership LLP has a fantastic opportunity for a Building Surveyor to join the team. The Building Surveyor position is a client facing role and you will need to have good communication skills, be self-motivated, professional, and have an ambitious and driven character. This role represents an excellent opportunity to grow personally, professionally, and for the right candidate offers the prospect for real career development and progression.
If you are looking to progress your career whilst earning an attractive salary package with benefits, then send your CV and a cover letter to: GMoran@carless-adams.co.uk All applications will be treated in the strictest confidence.
www.carless-adams.co.uk
To ad ve rtise con t a c t Em m a Ke n n e dy +4 4( 0 ) 20 7 8 7 1 5 7 3 4 or emmak@wearesu nday. c om DECEMBER 2015 / JANUARY 2016 25
RICS B UI L D I N G SU RV E YI N G J OU R N AL
A DV E RTI S I N G
Specialists in Recruitment and Search & Selection Focused on the Construction and Property industry, here are a few of the key roles that we are working on.
Associate or Director Building Surveying
Estate Building Surveyor
Associate Building Surveyor
Hertfordshire/London Borders
Central London
Sussex/London Borders
• Highly successful independent Building Consultancy
• Significant Landed Estate
• Partnership in the short term
• Must be MRICS possibly FRICS
• Party wall specialist required to take control of service line
• Management of Consultants in the delivery of services
• Delivery and development of building surveying service line
• Own network and contacts required to strengthen offering
• Personal delivery of projects up to £10 million
• Salary c. £80,000 + pension, healthcare and significant bonus
• Mixed asset classes through Commercial, Residential and Retail • Significant package
• Existing workload, internal and external clients • Growing a small team and working within a larger service line • Excellent salary and package with performance led bonus
If you are interested in one of these opportunities please contact Elliot Wright on 0203 817 0000 or email ewright@carriera.co.uk If one of these roles does not meet your brief, please still get in touch as we have other opportunities available.
Recruitment – Search & Selection – Market Intelligence – Benchmarking
www.carriera.co.uk
Is 2016 the year to specialise? Are you a Chartered Building Surveyor with several years’ experience, looking for an opportunity to specialise in your favoured service line?
Building Surveys London/Home Counties We have no formula for the person we seek. You could be at any level from partner/director to part time freelancer. You may have a practice which could co-operate or combine with ours. Our only requirement is that you have solid experience of building surveys of older property and complement our friendly, easy going but professional outfit. CV in confidence to james.flynn@jamesflynn.co.uk or call 07740 825859 for an informal chat.
Stapleton Oak is currently recruiting on behalf of a wide range of client firms, from some of the best known multi-national property consultancies, to niche building surveying practices. Common among them is the opportunity to specialise, or part-specialise, in diverse fields of Building Surveying based practice, including: • Technical Due Diligence • Bank Monitoring • Dilapidations • Party Wall • Project Management (CAT A/CAT B/Development Management) Some of these roles are to join well established teams, recognised as market leaders in their field; others to spearhead new departments for firms looking to increase market share. If you have a specific interest in any of the service lines above, and are considering a career move in the New Year, please don’t hesitate to contact me for an informal discussion in the strictest of confidence: Neil Lancum at Stapleton Oak Recruitment & Succession Planning Ltd 07900 004256, via email at neillancum@stapleton-oak.co.uk or on LinkedIn
To ad ve rtise con t a c t Em m a Ke n n e dy +4 4( 0 ) 20 7 8 7 1 5 7 3 4 or emmak@wearesu nday. c om 26 DECEMBER 2015 / JANUARY 2016
Building Construction Conservation Journal Journal
Lynda Jubb is Chair of the RICS Conservation Board Forum conservation@rics.org
OPINION COVER LINE
Beacons from the past
There’s a small tangential link between the articles in this issue of the journal. The stories of lighthouses and royal palaces are probably linked in numerous ways, but the one that came to mind for me was the historic association with England’s most famous king, Henry VIII. Henry’s father had been rather taken with Hampton Court as it developed from monastic grange to tenanted lodgings and eventually, bishop’s palace. In fact, this
Holding court
How repair work at Hampton Court fits around visitor needs PG.
28
huge elevation in the site’s status took place in just a couple of generations. Henry’s tussle with Cardinal Wolsey established Hampton in 1528 as a Royal palace, and there it remains, a jewel in the west London fringe. Although beacons and shipping guides are traceable back to ancient times, Henry had already made a significant change to the management of the UK’s maritime assets by granting a royal charter to the Guild of the Holy Trinity in 1514. Trinity House, the successor corporation of brethren drawn from the Royal Navy and Merchant Navy built its first lighthouse at Lowestoft in 1609. So, just as the marriage of Henry’s elder sister Margaret to James IV of Scotland led to the Union of the Crowns,
In a new light
The lighthouses helping to revive community fortunes PG.
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and later the Act of Union (1706 or 1707 depending on your jurisdiction), the Northern Lighthouse Board is a sister body to Trinity House. This historic narrative contrasts with the historic uses. I think of lighthouses as lonely places, which keep sailors away from danger and guide them on their way. Nothing could be more different in concept from a place for political gathering, built to draw people nearer to each other. But in 21st century Britain, both now rely heavily on visitors, both for income and for purpose, and share similar technical
challenges of access and interpretation. The story of Lossiemouth’s transition is especially inspiring. Of the two, in spite of the scale of visitor numbers and the demands they place on the historic fabric, Hampton Court is probably the most easily adapted. Henry himself was no stranger to hosting larger numbers of visitors; he added gardens and dining rooms, and even a 28-seater communal loo. The loos are probably not his finest achievement, but I have to say, in both visitor comfort and maritime history, he was a man ahead of his time. C
Membership of the Building Conservation Forum is FREE. For more information, email conservation@rics.org
Heritage Agenda Henry Russell’s regular update on the key issues in the conservation world PG.
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December 2015/ January 2016
rics.org/journals
H E R I TAGE RICS BUILDING CONSERVATION JOURNAL
1
In the first of a series, Andrew Harris describes the scope of the conservation work at Hampton Court Palace, which is coordinated around visitors and events
Holding court
H
ampton Court is one of Europe’s most cherished historic buildings, and is visited by thousands every year who enjoy its fine Tudor and Baroque architecture and interiors. In reality, its character is more complex, and the ever evolving chronology of change and repair over centuries continually challenges archaeological, architectural and curatorial understanding. For all who have worked on the current conservation programme, this has required a balance 28 DECEMBER 2015 / JANUARY 2016
of technical resolution and aesthetic considerations, and a willingness to shift opinions and approaches as the palace has revealed itself. The Manor of Hampton Court is first mentioned in 1086, although it likely existed long before that. The site was passed from Earl Algar to the St Valery family by William the Conqueror, and remained in the family until the early 13th century. By 1237, Hampton Court had been sold to the Knights Hospitaller, who used it as a grange, the centre of its agricultural estates in the area. By the 14th century, Hampton Court’s location, conveniently between the royal
palaces at Sheen and Byfleet, led to it also being used as a luxury guesthouse. It was later tenanted and came into the hands of courtier Giles Daubeney in 1494, the year before he became Lord Chamberlain to Henry VII. Although it is known that he modernised the buildings, his building work was soon eclipsed by the grandeur of Hampton Court’s next incarnation under Cardinal Wolsey. Wolsey leased the palace in 1514 and began building on a grand scale in 1515. Alongside large entertainment spaces, lavish guest accommodation and private apartments for his own use, he created suites for Henry VIII, Queen Catherine
RICS BUILDING CONSERVATION JOURNAL
2
1 Building on a grand scale started in 1515 2 William III transformed the east and south
facades with elegant Baroque exteriors
Project and repair priorities are determined by an ongoing state of the estate survey and detailed quinquennial surveys and Princess Mary. When he fell from grace, the king appropriated Hampton Court for himself, instigating further embellishments to create a grand royal palace for his new queen, Anne Boleyn, and their court. A new era was born when William III commissioned Sir Christopher Wren to rebuild Hampton Court. He transformed the east and south facades, replacing Tudor towers and chimneys with the grand and elegant Baroque exteriors. Hampton Court fell into disuse as a royal palace in the 18th century, instead
being used as a series of grace and favour apartments. Responsibility for its upkeep passed to the Ministry of Works in the 20th century, and since 1989 it has been under the care and management of Historic Royal Palaces (HRP), an independent charity, that also looks after the Tower of London, the Banqueting House Whitehall, Kensington Palace, Kew Palace and Hillsborough Castle.
Conservation team Conservation work is overseen by the Surveyor of the Fabric, Adrian Phillips, leading a world-class team of in-house professionals and experts within the Conservation and Learning Department under director John Barnes. This includes Head of Building Conservation Patricia Les and Head of Quantity Surveying Colin Briggs, alongside a dedicated team of professional in-house surveyors, conservators and curators. All share a deep knowledge and interest in the buildings in their care, and a rare ability to balance their work with HRP’s need to manage a complex estate of visitor attractions as a financially self-supporting business. All building
conservation work, therefore, needs to be coordinated around revenue-generating functions, and with great care in the context of many priceless artefacts. Martin Ashley Architects has been lead consultant on a series of phases of conservation and repair at Hampton Court Palace over a long period. The practice’s involvement began with the Base Court – the principal arrival courtyard – with extensive external brickwork and masonry repairs. The work included the restoration of the Anne Boleyn Gatehouse, where Wren’s work overlays one of the palace’s grandest Tudor elements. Subsequently, work focused on the Great Hall Court and surrounding building ranges, which included Buttery roofs – a part of the palace where new knowledge about the junction of Wolsey and Henry VIII’s work was anticipated and, happily, revealed. Works by Purcell Architects included excavating and restoring the Base Court pavement, revealing fascinating archaeology and re-presenting the previously cobbled surface that had been lost to lawns. Extensive repair and restoration was carried out to the Baroque palace in the late 1980s and 1990s, and work has also begun on a comprehensive restoration of Tijou ironwork. This is revealing new knowledge about one of the palace’s most significant Baroque elements, which will be discussed in later articles.
Commission process Behind this programme of work lies a set of mechanisms and processes. Project and repair priorities are determined by an ongoing state of the estate survey and detailed quinquennial surveys, led by the Surveyor of the Fabric Department. Work packages or phases are then identified, and a budget estimate prepared by the Surveyor of the Fabric Department, before a surveyor is appointed from the HRP team to manage the project. This includes brief preparation and commissioning of specialist surveys to inform the scope of conservation works. At this point, an HRP curator will prepare a statement of significance in relation to the fabric in question, along with briefing documents for archaeology and paint analysis. Expertise is drawn from the HRP Conservation and Collections Care Department regarding DECEMBER 2015 / JANUARY 2016 29
n
H E R I TAGE RICS BUILDING CONSERVATION JOURNAL
4 and mitigate construction risks, before an application is made for scheduled monument clearance.
Gaining consent
3 n
the protection of objects not normally considered part of the building. Examples include the Astronomical Clock on the Anne Boleyn Gatehouse or the De Maiano terracotta roundels on the various gatehouse elevations. The project surveyor coordinates work with other HRP departments to ensure that conservation work can be balanced against the ongoing work and activity of the palace, before appointing an appropriate lead consultant. Consultants are appointed under a framework agreement, for which architects, engineers and quantity surveyors submit competitive rates for services and relevant expertise. This streamlines procurement and maintains a competitive audit trail and project continuity where this is required. Traditionally, HRP procured by competitive tender using a government contract works contract. While this is normally a collaborative experience for project team members, it carries some risks for both contractors and client. For instance, a harsh economic climate can cause some tenders to be unrealistically low to secure work, exposing some contractors to disproportionate risk and leading to an adversarial experience on site. Alternatively, risks may be priced into traditional contracts so clients may 30 DECEMBER 2015 / JANUARY 2016
not achieve value for money if they do not materialise. More recently, therefore, JCT constructing excellence contracts have been used, with contractors invited to submit competitive bids. The appropriate contractor is selected at an early stage for each project, and thereby empowered to contribute to the design development and buildability so that the employer, design team and contractor can work in partnership to reduce construction risks and costs. Initially, this involves a scheduling of the outline project scope and identifies key work items and risks within and beyond the project boundary to maximise the best use of preliminaries, value engineering and risk mitigation. With the lead curator, archaeological points of interest and conflict are identified, balancing added value and reduced risk as part of the decision-making process. At this point, consultants are able to draw on a network of specialist consultants and contractors. Typical specialist contractor skills include paint analysis, mortar analysis, petrology, brick typology, embedded metals, and timber decay. Other skills such as scaffold design development are also brought on board. Once a programme has been agreed by the project team, a risk register is compiled to identify
As can be expected, conservation work at Hampton Court is subject to a rigorous consent regime. As a scheduled monument – a higher protection status than Grade I listing – any applications for change beyond day-to-day maintenance work are submitted to Historic England (HE). Before clearance can be given, advice is sought from inspectors Dr Jane Sidell and Dr Michael Turner, who has over 30 years’ continuous experience of working on the palace. Planning consent may also be required, for example for the use of Holbein’s portrait of Henry VIII as a scaffold banner in Base Court. For clearance to be granted, all works have to be fully detailed. Where occasional alterations are required – for example for rainwater disposal – the inspector will consider whether “the effect of the proposed works on the monument to be works which are beneficial for the preservation of the monument, but necessitating unavoidable but on balance acceptable disturbance to historic fabric”. A few conditions are often applied, typically including: bb original material to be reused wherever possible bb any replacement material shall be of a type, texture and colour which matches the original material bb any replacement brick or stone shall be of a suitable size, and laid in courses to match the original courses and joint widths bb equipment and machinery shall
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3 Consultants are able to draw on a network of specialist consultants and contractors 4 Where repairs are necessary, replacement material must match the original
not be used or operated in the scheduled area in conditions or in a manner likely to result in damage to the monument/ground disturbance, other than where expressly authorised. Samples of brick, stone and pointing mortars are provided for HE approval
where replacement is necessary, and monthly inspections ensure that any alterations to the original consent, or archaeological discoveries made during the course of works, are thoroughly discussed between consultants, curators and inspectors before action is agreed. All work at the palace is informed by a conservation approach which aligns with Historic England’s principles, and the Society for the Protection of Ancient Buildings’ philosophy. Any intervention must be kept to a minimum and be reversible, while repair work is to be undertaken ‘as found’. This balances the needs of the building, its archaeology and HRP’s aspirations to present the buildings in their care in the best possible way. Great care is taken to ensure that building conservation and repair work does not threaten Hampton Court’s outstanding collection. Around the Great Hall, for instance, steps were taken to ensure the protection of the Abraham Tapestries – one of the most valuable art
Glass for period windows
series in Britain – while keeping them on display for visitors to enjoy. Throughout the programme, archaeological surveys have been critical, revealing new discoveries. Archaeological assessments are made pre- and postscaffold erection, and continue during the course of all work. HRP’s ability to balance conservation and repair with the functioning of Hampton Court as a living visitor attraction has been remarkable. Fixtures such as the Hampton Court Music Festival have been a terrific discipline – immovable events that leave no room for over-run. Yet these curatorial and financial responsibilities have been managed with consummate ease, ensuring both the ongoing conservation of Hampton Court and an appreciation and enjoyment of the buildings. C Andrew Harris is an Associate Partner at Martin Ashley Architects Andrew.Harris@ma-arch.co.uk
Related competencies include Conservation and restoration
CLIVEDEN CONSERVATION
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C O N S E RVATI O N RICS BUILDING CONSERVATION JOURNAL
Bob McIntosh and Sarah McIntosh look at how lighthouses can be brought back into use as a community resource
Viewed in a new light
L
ighthouses are some of the most iconic buildings in the contemporary landscape, cherished by the local community and tourists alike. They have a long history, the oldest recorded lighthouse being Pharos, Alexandria, dating from the 3rd century BC, and many have been rebuilt and substantially altered over the years. By their very nature, they are frequently located in exposed and difficult to access locations, and are subject to extreme weather conditions, making construction and maintenance a testing undertaking. Bell Rock Lighthouse off the Firth of Tay on the east coast of Scotland is an excellent example of 19th century engineering skills, constructed on rock that is uncovered only at low water while at high water it is submerged to a depth of 4m. Modern technology, and in particular improved navigation aids, have reduced the need for such structures, and since the last lighthouses in the UK were automated in 1998, they are no longer manned. This may have reduced costs, but with staff no longer in place to regularly check damage, maintenance of the building fabric is now more challenging. In Scotland, former keepers’ accommodation and ancillary structures have been converted to a variety of uses including private homes, holiday lets and hotels. Less frequently, redundant lighthouse towers have been sold off, because their relatively restrictive built form makes them difficult to convert for alternative uses, although one operational lighthouse in Wales is marketed as a wedding venue for up to 25 people. There are many reasons for conserving lighthouses. Their historic value has been recognised by the fact that a substantial number are listed. Of Scotland’s 200 lighthouses, 93 are listed, 31% being Category A (Buildings of national or international importance), 56% Category B and the remainder Category C. The proportion of Category A listings compares to only 8% among all listed buildings in Scotland.
Conversion benefit Lighthouses also have economic and social value. They can be the hub to attract visitors to a particular area, and thereby support local businesses such as cafes, restaurants and 32 DECEMBER 2015 / JANUARY 2016
hotels. For example, it has been estimated that the Mull of Galloway Experience attracts around 20,000 visitors a year, and an economic study in 2009 found that visitors to the nature reserve around the lighthouse alone contributed over £0.5m to the local economy. The strong cultural importance to the local community has been aptly demonstrated at the Covesea lighthouse, Lossiemouth, on the north-east coast of Scotland. Following a consultative review by the General Lighthouse Authorities of the UK and Ireland in 2010, it was agreed that the lighthouse was no longer required for navigational purposes and in 2012 the lighthouse and grounds were put up for sale by the Northern Lighthouse Board (NLB). The Lossiemouth business community recognised the potential of the site and its buildings, and expressed an interest in their purchase. The need to diversify from the declining employment prospects of fishing and military airbases had been recognised many years earlier, when the development plan for Image © Alamy
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Maintaining the lighthouse to a high standard will be one of the major challenges. The conservation plan states that all repairs should be professionally designed, resourced and inspected had access to a comprehensive record of Stevenson drawings and historical information to put on display. Some of the electrical equipment had to be removed to increase the visitor capacity of the watch room, but there is perhaps the potential for an interactive interpretation exhibit. After seeking approval to permit public access within the tower, the local planning authority granted planning permission in July 2013. Although current building standards require public buildings to have an alternative means of escape, this would be impossible to provide at Covesea without major building works that would threaten the structure’s integrity and historic value. Nor is it possible to provide full disabled access to the tower.
Dealing with damp
The potential of Covesea lighthouse to promote local heritage was recognised
Lossiemouth and Burghead commissioned by Highlands and Islands Enterprise in 2006 was approved. The local community was also able to use the community right to buy, introduced under the Land Reform (Scotland) Act 2003. After the required process of public meetings and media coverage, a new body, the Covesea Lighthouse Community Company Ltd (CLCCL) was formed. The purchase was also supported by local councillors. A scoping study was undertaken and came to positive conclusions, and the Scottish Government approved the purchase in February 2013, backed by a grant of £301,500 from the Scottish Land Fund, to develop a tourism hub to promote local heritage. A conservation plan for the lighthouse, commissioned by the CLCCL, looked at the original design intentions of Alan Stevenson, as well as the current state and significance of the Category A structures on the upper level. One of the key objectives was to open the lighthouse tower to visitors. Although most of the equipment had been removed by the NLB, CLCCL
One benefit of opening the tower and more active management of the lighthouse is the opportunity to vent the space and reduce moisture build up. Damp in the tower, quarterdeck and especially in the basement area, had been an ongoing issue for NLB, especially after the tower became automated and the building was effectively sealed for most of the year. Electric heaters were subsequently installed to reduce the risk of condensation. Eliminating damp is also important to protect any display material, in particular archival documents. CLCCL recognises that maintaining the lighthouse to a high standard will be one of its biggest challenges. Policy 2 of the conservation plan policies, adopted in 2013, states that all repairs are to be undertaken using the original materials, unless a clear case to the contrary can be made. They should be professionally designed, resourced and inspected by persons with appropriate building conservation experience and training, and executed by contractors with specialist skills. The acquisition and development of the Covesea Lighthouse has been supported by an enthusiastic and professional team of community volunteers. The lighthouse is now open to the public, who can climb to the top of the tower and enjoy the panoramic views over Lossiemouth and surrounding countryside. C Bob McIntosh is Projects Group Team Leader at Northern Lighthouse Board and Chairman of the IALA Heritage, Conservation and Civil Engineering Working Group bobm@nlb.org.uk Sarah McIntosh is a Lecturer at the School of Energy, Geoscience, Infrastructure and Society, Heriot Watt University s.e.mcintosh@hw.ac.uk
Related competencies include Conservation and restoration
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RICS B UI L D I N G H E R I TAGE AGE N DA CONSERVATION JOURNAL
UPDATE
+info
Heritage Agenda is compiled by Henry Russell OBE FRICS, School of Real Estate and Planning, University of Reading and chair of the Heritage Alliance’s Spatial Planning Advocacy Group h.j.g.russell@reading.ac.uk
Comments sought on culture strategy
Developing brownfield land The government’s Fixing the foundations document, issued in July at the same time as the Budget, proposed measures to speed up the planning system, one of which was simplified planning on brownfield land by ‘permission in principle’. However, it was not clear whether this would mean that protection of the historic environment would be diminished. By definition, brownfield land is previously developed land and that could mean they hold archaeological assets, known or unknown. When the National Planning Policy Framework (NPPF) was drafted in 2011, the heritage sector largely supported the concept of developing brownfield land as the alternative to building on greenfield land. That assumed that the planning regime would remain the same and that there would be adequate safeguards and mitigation to protect the historic environment. The planning proposals have now been published in the Housing and Planning Bill, which has started its progress through Parliament. The brownfield zoning provisions are contained in the clauses about ‘permission in principle’ for the development of land. The powers are drawn widely so that land other than brownfield – could also be designated: bb through an application to the local planning authority, who may grant or refuse. Conditions cannot be imposed 34 DECEMBER 2015 / JANUARY 2016
bb by allocation in a local plan bb by allocation in a neighbourhood plan bb by inclusion in the brownfield register. This is then followed by approval of ‘technical details’, which will be subject to consolation, but it could be very similar to the reserved matters procedure. Local authorities would be required to hold registers of land of a prescribed description. Brownfield registers are under consideration, but these could include other classifications of land. The secondary legislation (orders and regulations) have not yet been drafted so it is difficult to assess the full impact of the measures. It is not yet clear whether the registers will have to include information about heritage assets on or close to the site. Both Chancellor of the Exchequer George Osborne and planning minister Brandon Lewis have given assurances that there will be no lessening of protection and that the NPPF policies will be applied to consideration of any sites. Guidance will need to be published and this should advise local authorities and developers on how to deal with the historic environment. n Fixing the foundations, http://bit.ly/1OUiBZz n Housing and Planning Bill http://bit.ly/2089pVp
The government is planning to publish a Culture White Paper early next year. It is not intended to be the first stage on the path to new legislation, but to be a vision and strategy for the future. The Department for Culture, Media and Sport is considering four themes and is asking for contributions: bb the role that culture plays in creating places that people want to live, work and visit. How can UK culture and heritage contribute to vibrant, healthy communities across the country, and how can government support that bb building financial resilience in cultural organisations and institutions through new funding models, to enable them to survive and prosper in a tough economic and financial climate bb how people engage with culture. How do we ensure that everyone can learn about and through culture, and get the right encouragement and opportunities to experience and participate in cultural activities throughout their lives bb working with cultural institutions to promote Britain abroad, in our relations with other countries and international organisations, and to support trade, exports, inward investment, inbound tourism and presentation of cultural artefacts. n http://bit.ly/1KI0YV8
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