Building Surveying Journal May-June 2015

Incorporating Building Conservation Journal

Building Surveying Journal Backing innovation Benefits of modern methods of construction PG

10

The new normal

Going bust

BUILDING CONSERVATION

Assessing the prospects for the property and construction sectors

Steps to be taken when a contractor runs into financial difficulty

The judging process for the annual RICS Conservation Award

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PG

8

Quest for the best

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May/June 2015

rics.org/journals

A DV E RTI S I N G

RICS B UI L D I N G SU RV E YI N G J OU R N AL

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C O NTENTS

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contents

Front cover: ©iStock

4 Speaking out for the profession

19 A deluge of claims

Editor: Barney Hatt T +44 (0)20 7695 1628 E bhatt@rics.org

Alex Charlesworth reflects on the Building Surveying Conference, the need for more surveying students, and higher fees

More than a year on from the floods that devastated areas of the UK, what lessons have been learned in terms of protection, asks Jonathan Hyndman

The Building Surveying Journal is the journal of the Building Surveying Professional Group

5 Update

20 Covering all the bases

CO N TAC TS BU I L DI N G S URVE YING JOU R NAL

Advisory group: Gary Blackman (Malcolm Hollis), Alan Cripps (RICS), Chris Gibbons (Tuffin Ferraby Taylor), Brad Hook (National Energy Foundation), Mat Lown (Tuffin Ferraby Taylor), Patricia Newman, James Percival (Savills), Trevor Rushton (Watts Group), 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: Craig Bowyer Creative director: Mark Parry Advertising: Charlotte Turner T +44 (0)20 7871 5734 E charlotte@wearesunday.com

6 The new normal

Ruth Hollies discusses the state of the economy and prospects for the property and construction sector

8 Going bust

Alistair Allison sets out the steps to be taken when a contractor runs into financial difficulty

10 Backing innovation

The benefits of offsite manufacture and modern methods of construction are driving the determination to overcome the challenges, report David Osrin and Paul Wornell

12 Opportunity knocks

Nick Blenkarn discusses the practical application of building information modelling in refurbishment

14 Matters of interpretation

Chris Mahony discusses the issues to be considered when called to advise on installation of resilient flooring

22 Hidden liabilities

James McAllister explores the legal responsibilities for repairs, where the express terms are not set out in the lease

24 Matters of principle

Variations in contracts can take time and money to resolve, so make sure the terms are clear at the outset, cautions Michael Sergeant

25 Legal Q&A

Legal experts answer common queries

26 Keeping to the brief

Ewan Craig, a speaker at the RICS annual ‘It’s Your APC’ conference, talks about the competency of development/project briefs

Laurence Cobb looks at two recent cases in his regular construction law update

16 Assessing the damage Julian Greenhill provides an overview of recent dilapidations rulings

18 Testing the water

Understanding the performance of materials is key to reducing the damage caused by flooding, explains Alan Cripps

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

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RICS B UI L D I N G SU RV E YI N G J OU R N AL

C H A I R M A N ' S C O L U MN

OPINION Speaking out for the profession Alex Charlesworth reflects on the Building Surveying Conference, and the need to attract more students

T This year’s RICS Building Surveying Conference built on previous years’ successes and my thanks go to the working group responsible for organising the event, led by Nicola Woolford, and made up of volunteers and RICS. The Building Surveying Professional Group (BSPG) Board uses the conference to focus on current and salient issues affecting our industry.

It is designed, where possible, to challenge views and encourages discussion.

Feedback on the current format has been good since it became a one-day event, and the working group always meet afterwards to review delegate comments. It is 4 M AY/J U N E 2 0 1 5

one way in which the board listens to member’s views, but is not the only interaction.

The BSPG is also seeking opinion from members via an online survey, and through meetings with small, medium and large organisations. This will help it to focus direction and formulate its business plan and strategy.

Positive promotion One interesting insight from the survey findings is the need for positive promotion of our profession.

Personally, I chose building surveying as a career because, while still at school, I was lucky enough to meet a practitioner who enthused about their own experiences and effectively sold the profession to me.

I passionately believe that all building surveyors can spread a similar positive message; that building surveying is a fun and exciting profession, providing a service that brings real value to owners and investors of property.

Student applications Recently, there have been reports that applications to study building surveying at university are falling.

If true, this would be counter-cyclical to current market requirements. Our meetings with opinion formers in businesses show headcount down by 10%-15% on the numbers needed. This is causing salary demands to be driven up, so therefore we should be seeing more students enrolling not fewer.

The board is visiting universities to meet current building surveying students, but we are few in number.

The 15,000 members of the BSPG can all help to spread the word and encourage individuals to join our profession. This should be both at school level, and also to existing university students who may want to convert across to the building surveying pathway.

In addition, we are exploring other avenues into the profession, such as apprenticeship schemes, and are receiving encouraging support from businesses (see Building Surveying Journal March/April p14).

Fight for higher fees Fees are a contentious subject. However, feedback from members suggests that levels have not risen for a considerable period. After being reduced during the market downturn, they have

flatlined rather than risen in response to the upturn.

Worse still, there is further opinion that seems to point to fees being reduced to win work, which is a damaging trait and devalues our profession. We must work hard to demonstrate where we add value through the services we offer.

Building surveyors are in a great position to understand the full property life cycle, and to interact with clients throughout its entire process.

We provide many services, including due diligence at acquisition, repair and maintenance and dilapidations during occupation, and at disposal. This value should be demonstrated at every opportunity.

We have a mighty voice through which we can spread a positive message.

So please visit schools and talk to friends. This may be a simplistic view, but if we deliver the right message, demand for our services will increase, the value of our input will be better recognised, which in turn will encourage grass roots membership and growth in our profession. Well, it’s worth giving it a go, isn’t it? C

Alex Charlesworth FRICS is Chairman of the Building Surveying Professional Group bsprofessionalgroup @rics.org

Related competencies include Conduct rules, ethics and professional practice, Business planning

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UPDATE

RICS training

RICS conferences European smart cities conference 12 May, London The surveyor-tailored conference covers recent developments in the smart cities agenda, including the connection with big data, infrastructure needs, BIM, investment, partnerships, local community engagement, project benefits, urban real estate and business opportunities. n http://bit.ly/1v8Bobh

It’s your APC conference 23 June, London and 24 June, Manchester Designed specifically for the Building Surveying pathway, this conference will provide a firm grasp of the essentials and a roadmap to help candidates pass the APC. http://bit.ly/1BBBqrE n http://bit.ly/1Cp1KY5

Diversity and inclusion conference 25 June, London Each year, the property and construction profession welcomes and loses over 400,000 employees creating a significant skills gap. It is therefore more important than ever that the profession focuses on attracting, engaging and retaining the right talent mix. Join industry peers and leading experts for a day of knowledge sharing and practical workshops to prepare for and harness the next generation. n http://bit.ly/1wXt35v

Skill shortages flagged

Worsening skills shortages will threaten 27,000 building projects within five years, according to a RICS survey of members. More than four fifths (85%) of surveyors questioned said that a lack of qualified candidates meant they had problems recruiting. Around two in five (43%) firms currently turn down new business opportunities due to a dearth of skilled workers, with each passing up an average of five contracts per year. n http://bit.ly/1Fpss1M

In brief...

Inclusive design drive

RICS is backing the UK government’s Built Environment Professional Education Project (BEPE), which aims to embed inclusive design into the training and education of all built environment professionals.

BEPE was inspired both by the achievements of the London 2012 Olympic and Paralympic games and the continuing work at Queen Elizabeth Olympic Park. n http://bit.ly/1FmTcUr

Energy efficiency rating upgrade for lettable homes

Landlords will be forced to upgrade hundreds of thousands of homes, following the UK government’s introduction of new regulations. Under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015, homes currently rated F and G will need to meet a minimum E rating by 1 April 2018 to continue to be lettable.

Almost 10% of England and Wales’ 4.2 million privately rented homes currently fall below the E rating. The regulations also mean that from 1 April 2016 tenants living in F and G rated homes will be able to request improvements such as more insulation, and the landlord has a duty not to reasonably refuse a tenant’s request to improve the energy efficiency of the property. n http://bit.ly/1M5kFux

17 May, London Fundamentals of managing asbestos n http://bit.ly/1L50jky 20 May, London Structural movement in buildings n http://bit.ly/1zFQyoa 18 June, London Contract administration n http://bit.ly/1CP4VsN 1 July, London Dilapidations roadshow n http://bit.ly/1Ak0T63

CDM briefing

Phase Consultants has published a health and safety briefing on the Construction (Design and Management) Regulations 2015, which came into force on 6 April.

The new regulations widen the scope of projects where parties have formal duties and shift the focus further to the design stage.

There is now a transitional period before the introduction of the new regulations for live projects. Projects before April 2015 are subject to the CDM 2007 regulations until October 2015. n http://bit.ly/1FsuLTF

Membership survey More than 6,000 members responded to RICS’ December 2014 membership online survey.

The percentage likely to renew their membership increased to its highest level yet (80%) while overall satisfaction and pride in membership remained high at 68% and 89% respectively. n http://bit.ly/1FY2brD

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RICS B UI L D I N G SU RV E YI N G J OU R N AL

TR E N D S

Ruth Hollies discusses the state of the economy and prospects for the property and construction sector

The new normal

T

The UK was one of the top performing developed economies in 2014, growing by 2.6% and now 3.4% above its pre-crisis peak. Despite this strong outlook, the Bank of England introduced the concept of the ‘new normal’, asserting, but not promising, that rates would stay lower for longer. The expected date for a hike has now shifted, looking like early 2016.

The introduction of quantitative easing by the European Central Bank and the impact of low oil prices have also helped to keep interest rates down.

Low yields on many assets means investors are increasingly looking at commercial property.

The final quarter’s estimate of GDP exhibited some weakness and was under market expectation but will likely see an upward revision. The construction component was an area of weakness, and is one of the more volatile constituents of GDP, and fell by 2.1% over the quarter driven by reduced repair and maintenance activity. That said, over the year construction saw stellar growth at 7.4%, the highest since 2010. The service sector grew by 0.8% over the final quarter.

Spending continues Retail sales motored ahead in 2014, with the fourth quarter posting 5.0% year-on-year growth, assisted by strong activity in November on the back of Black Friday and Cyber Monday.

6 M AY/J U N E 2 0 1 5

Currently, the spending frenzy looks set to continue although bolstered by strong discounting which is causing problems for some retailers.

Oil prices at US$120 in the middle of 2014 were a dampener to growth. A combination of weaker global demand and over-supply saw rapid falls in oil prices from November. Prices of Brent Crude fell below $50 although they have since recovered to around $60. Lower oil prices have provided an economic fillip by pushing inflation lower and in the construction sector the cost associated with transporting materials has declined.

Housebuilders will benefit from stronger consumer confidence and estimates suggest the lower oil price could add half a percent to 2015 GDP growth. The Bank of England in its February inflation report pushed its forecasts of GDP growth to 2.9% for 2015 and 2016.

Rippling out from London The London property market performed strongly during 2014 with total returns on the IPD quarterly data hitting 20.2% in the City and 23.1% in the West End; for the UK as a whole the figure was 17.9%.

Prime City yields fell to 4.5% with West End yields at 3.75% both at their lowest since September 2007.

Many believe that yields are at their low point in London but the spread over 10 year gilts is still wide. With rental

growth still robust and plenty of money looking for London assets, it is hard to see what the near-term catalyst for an outward yield shift would be. That said yields will play less of a role in determining total returns going forward.

Outside London and in secondary assets, potential yield compression will remain an attractive attribute to investors. Regional property looks relatively cheap, against a backdrop of improving regional economies and nascent rental growth, encouraging investor interest to focus on regional assets. The spread between prime and secondary yields continues to narrow. In stronger economy markets where rents are bottoming out, investment activity will continue to grow. Additionally permitted development rights allowing for change of use to residential in the regions has reduced secondary space.

As the economic recovery takes hold outside London, with both job creation and rising real wages, we expect to see prime office rents rise across a number city centres this year.

Overall, prime headline rents in Manchester are expected to reach £33.75sqft by the end of 2015 after a 6.7% increase in 2014, with Birmingham performing equally well with predicted prime rental growth of 5% in 2015.

In many of these city locations the lack of grade A space and improved demand has pushed prime rents. This lack of

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suitable stock and rising prime rents has been a catalyst for construction, with an increase in speculative developments in regional cities.

Industrials and logistics are also having their day; in aggregate terms industrial and logistics was the top total return performer in 2014 at 23.1%. This has been driven in part by the logistics market both for internet fulfilment, click and collect and direct to store activity.

Further strength is anticipated with industrial total returns predicted to be 10.9% per annum over 2014-18 on the IPF consensus forecast putting it as the expected top performer over the next few years. Much stock is built-to-suit and this is feeding into the construction output data where the private industrial component grew by 17.4% over 2014.

The divergence between prime and the rest in the retail sector persists.

Central London standard shops with 28.2% IPD total return were the strongest performers in 2014.

Supermarkets eased off in their returns (7%) because past performance was driven by inward yield movements and there is now some concern about the long-term viability of some large out of

town superstores. Retail rental growth has not materialised across the sector and regions in the same way as offices and performance will be far more asset specific.

UK commercial property will remain an attractive proposition, but rental expectations will be more important in determining total returns in markets where yield compression is over. As a result, asset selection will be important in 2015 and development may be the way many choose to realise their objectives.

Construction output The fall in construction output in the final quarter was in part due to fewer new homes being built, although the PMI index suggests that housebuilding as well as commercial construction will be on an upward trend in 2015. Tender prices, on the back of improved demand as well as some labour cost pressures, are on the up.

Construction companies are keen to improve their profitability and should receive a boost from reduced energy-related input costs, although there is still evidence of a shortage of some materials.

The list of risks seems to be ever growing.

Although the impact of the UK general election may be minor, the outcome of any EU referendum could be large. The situation in the eurozone rumbles on with some negative consequences for the UK mainly through euro weakness hitting UK competitiveness and general market instability.

Geo-political risks and terrorism are never far from the news. The UK economy looks well placed to weather the storms and real estate activity is determined by longer-term underlying economic fundamentals than many other sectors. C

Ruth Hollies is Director of Research and Consulting at CBRE ruth.hollies@cbre.com

Related competencies include Design economics and cost planning, Business planning, Project financial control and reporting

RICS Building Surveying Seminars June – July 2015 Various locations, UK

Surveyors from across the built environment with provide you with an opportunity to hear the latest developments within your industry and keep at the forefront of your sector. Sessions outlined cover a wide range of innovations, progress and advancement in the areas of CDM Regulations 2015 changes, the benefits of unmanned aerial vehicles (UAVs), social media best practice, the evolution of energy and renewables, case law updates, asbestos solutions and awareness and inclusive design of old and new build.

Book your place online today: To Surveying a d ve r tSeminars i s e c oAdvert n t a c174x127.5mm-AW.indd t C h a r l o tte Tu rner 20406 RICS RICS Building 1

rics.org/buildingseminars +4 4 ( 0 ) 2 0 7 8 7 1 5 7 3 4 or c harlot te@wearesu nd a y.co11:04 m 01/04/2015 M AY/J U N E 2 0 1 5   7

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I N S O LV E N CY

Going bust

O

Alistair Allison sets out the steps to be taken when a contractor runs into financial difficulty

Over recent years, the construction industry has experienced a significant lean period. This is characteristic of the cyclical, ‘boom or bust’ nature of the sector, due to its inflexible make up, the diverse range of stakeholders, and the timescales involved from inception to completion of projects.

Arguably, contractors are most at risk during such times, with their ability to survive being highly dependent on a number of factors they cannot control. These include their existing pipeline of work, the availability of finance or cash in the bank, the stability and depth of their supply chain and the ability of their employers to meet the payment demands.

Construction Act changes The government’s amendments to the Construction Act in 2011 8 M AY/J U N E 2 0 1 5

could be seen as a reaction to the changing economic conditions and go some way to help manage the issues with insolvency, as well as the main contributing factors.

One of these changes is to stop the knock-on effect in the construction supply chain by prohibiting conditional or ‘pay when paid’ clauses in contracts, meaning the pain cannot be shared.

While this is good news for subcontractors, it could be seen as adding further pressure to main contractors.

Similarly, the changes sought to address the previous ‘pay now and argue later’ ethos, making exceptions to the payment rules where a contractor is no longer solvent. Insolvency arising from the inability to meet payment demands benefits neither the employer or the contractor and can have a damaging knock-on effect to the wider supply chain and stakeholders.

It is important to consider not only what could/should happen if a contractor becomes insolvent, but also what can be done in advance to reduce the probability and impact of the worst happening.

Pre-contract risk While it is almost impossible to remove the risk of

insolvency affecting a project entirely, various steps can be taken to significantly reduce it.

First, when considering contractors for a tender list it is prudent to undertake checks to establish whether there are any obvious financial concerns. The extent of any checks (and who carries them out) will depend on the type of project, the duration, and supply chain reliance. All these factors contribute to the risk profile, and should identify any ‘red flags’ that may warrant further investigation or the removal of the contractor from the list.

The requirement for a performance bond (PB) or a parent company guarantee (PCG) as part of the contract terms can provide further protection against non-performance, enabling the employer to rely on a third party to take responsibility for completing the works, or financially compensate for an element of the subsequent costs relating to the completion of the works.

It should be borne in mind that the cost of PBs and PCGs will inevitably be passed on to the employer in the tender pricing. Typically, PB cover is also limited to 10% of the contract sum, so Image © iStock

the added cost makes them less useful for lower value or shorter projects.

If advance payments are needed to cover procurement costs or high cost/longlead items (e.g. lifts, works of art, large items of plant, steelwork), it is vital that this is formalised with an advance PB or similar arrangement.

A PB of this type essentially provides a guarantee from a surety (usually a bank or bondsman) to pay back the advance payment or properly vest the ownership to the employer in the event of the contractor failing to perform their associated duties under the contract.

Post-contract risk Once the contract has been awarded, proactive management can be valuable in identifying early signs of a contractor running into difficulties, well before any formal insolvency proceedings are initiated.

Warning signs include: bb progress slipping behind the programme bb reduction in the workforce and/or materials on site bb overzealous approach to payment applications and/or or making spurious variation claims bb rumours in the ‘market’ bb chasing payments before they are due.

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accounting limitations) to agree shorter payment intervals, to relieve cashflow problems. Obviously more detailed management of the programme and a contingency plan can also help.

Managing the impact

If, as the contract administrator, you suspect there are financial difficulties, it is extremely important to keep it confidential, other than to notify the employer and raise your concerns with the contractor. Sharing the information with any other party runs the risk that the rumours will spread and drive the contractor into more serious difficulties.

Subcontractors and suppliers are likely to cease work, remove materials, and/ or rescind credit, thereby exacerbating the problem.

If or when you suspect financial difficulties, and having discussed with the contractor, there are various steps that can be taken to ‘manage’ the problems and, if workable, avoid premature termination where there is a good chance that the contract can be completed without issue. For example, it is not unreasonable, prior to agreeing a valuation, to require the contractor to prove that they have settled their subcontractor invoices due under the previous payment. This ensures that the employer is paying for the works rather than covering other debts, and that the supply chain remains engaged.

Similarly, it may be possible (subject to the employer’s

Because of the potential complexities, the RICS Termination of contract corporate recovery and insolvency 1st edition guidance note (http://bit.ly/15g485q) limits the associated advice in relation to the insolvency of a contractor. It suggests: “If a contractor goes into administration or liquidation during the life of a building contract the contract should be checked to establish the procedures to be followed.”

This is sound advice.

The various forms of JCT contracts differ slightly in their wording, but in principle a contractor is considered insolvent if they have entered into a compromise agreement in satisfaction of their debts, appointed an administrator, made a determination to be wound up or have a bankruptcy or winding up order made against them.

Under all of the main forms of the JCT suite, if the contractor becomes insolvent the employer may at any time terminate the employment under the contract.

The formalities of serving a termination notice should always be fully understood and be complied with, however the simple principles are: bb Any notification letter should be signed and sent by recorded delivery by/on behalf of the employer. The contract administrator (or solicitor) is likely to draft the wording. bb The notification letter should be served directly on the contractor at its registered address in accordance with the contract’s provisions for notices and communications.

bb A copy of the notice should be sent to the contractor’s insolvency practitioner.

of the work rather than making a proportionate payment.

As soon as is practical following the termination of the contractor’s employment, the site should be shut down and secured, with all goods, materials and plant retained.

While this will inevitably create unrest and frustration for suppliers and subcontractors, the JCT contracts allow for the employer to complete the works using any temporary buildings, plant and tools, subject to obtaining any necessary third party consents.

Similarly, it is likely that even though suppliers may not have been paid for materials, they have been incorporated into the works and/or paid for by the employer. Until any proof to the contrary is provided, the assumption that all materials on site belong to the employer is reasonable and helps to limit their potential losses.

Once the site had been secured, the employer has various options for completion that should be considered fully with the project team and their legal advisers. These include: bb not completing the works bb employing another contractor to complete the works bb working with the insolvency practitioner to come to an agreement for the works to be completed bb enforcing the terms of a bond or guarantee, if the obligations are for completion

There are specific timescales within which the employer must provide the contractor with a statement setting out the costs and expenses incurred in relation to the termination of the contract (and/or completion of the works where appropriate).

This should include: 1. The amount of any expenses incurred by the employer (including direct loss or damage) 2. The amount of the payments already made to the contractor 3. The total amount that would have been payable for the works in accordance with the contract.

If the amounts under 1 and 2 exceed the total amount under 3, the difference will be claimable as a debt payable from the contractor to the employer. Equally, if the amounts are less than 3, then the employer must repay the associated balance to the contractor.

The process of terminating a contract is specific to the contract in place and must be carefully considered and implemented with the assistance of legal professionals, as appropriate.

The general principles described above are not without their intricacies but show the options to consider and the steps that can be taken to mitigate the impact to clients as employers under building contracts. b

Alistair Allison is a Partner at Tuffin Ferraby Taylor LLP aallison@tftconsultants.com

Related competencies include Conflict avoidance, management and dispute resolution procedures, Contract practice, Project financial control and Reporting, risk management, Contract administration

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RICS B UI L D I N G SU RV E YI N G J OU R N AL

M O D E R N M E TH O D S OF C O N STR U CTI O N

The benefits of offsite manufacture and modern methods of construction are driving efforts to overcome the challenges, report David Osrin and Paul Wornell

Backing innovation

T

he use of nontraditional construction systems such as offsite manufacture presents a number of challenges. Chief among these are longer term concerns about systemic failure, accessibility for essential maintenance and repairability. More immediate concerns are about fire spread and water ingress, both during the construction phase and after completion.

Factory production and prefabrication have been around in various guises in the post war era and occasional dramatic failures have led to adverse publicity. The most recent focused on timber frame, after incidences of rapid spread fires both during and post construction.

This is a useful prompt to note the impact on different insurance policies.

Fires during construction would be potential claims on the contractor’s insurance of the works. Post construction, claims would be made on a defect warranty insurance and/or on a buildings insurance taken out by the building owner. Proven design defects may end up as a claim against a designer’s professional indemnity insurance.

m Where does MMC start and stop? This commercial scheme used a non-standard brick format in lime mortar, reuse of existing basement retaining walls and ground-source boreholes

Assurance scheme For the UK residential market, many concerns around the use of modern methods of construction (MMC) have been addressed by the implementation of the Buildoffsite Property Assurance Scheme (BOPAS). This provides longterm assurance to mortgage lenders, their valuers and the ultimate homeowner.

While equally applicable, the commercial market has different drivers, which makes the proposition less obvious.

Interestingly, the origins of BOPAS were in the commercial sector. Buildoffsite originally partnered with Lloyd’s Register to develop an accreditation scheme to improve supply chain efficiencies and quality using non-traditional constuction methods. The scheme was supported by several high-profile clients, including BAA, GlaxoSmithKline and Marks & Spencer.

BLP Insurance provided expertise in 1 0 M AY/J U N E 2 0 1 5

relation to latent defects insurance along with a detailed 60-year durability and maintenance assessment.

Richard Ogden, Chairman of Buildoffsite, spent a significant part of his 40-year career overseeing construction for McDonald’s and its. standard volumetric modular units were the inspiration for many commercial organisations that use them today. Once considered innovative, today the concept is very well established.

Whole rooms and bathroom pods are common in the construction of hotels, classrooms, while plenty of student accommodation uses offsite manufactured volumetric systems. Tesco favours factory finished modules, as do hospitals, where the shortage of bed space requires faster build times and

the lack of skilled workers requires more innovative solutions. The fact that some units are designed to be relocated also contributes to the increased drive for sustainability. Other new materials and mixtures of materials along with novel engineering are also encountered.

Today, most large commercial buildings include an element of innovation, such as service systems and plant that are typically fabricated in sections offsite. Indeed, the Lloyd’s building (which celebrates its 30th birthday next year) was conceived partly on the basis of offsite manufactured volumetric units, with prefabricated toilets and staircase units stacked on top of one another. Its designer Richard Rogers also used prefabricated services units to create distinctive external features Image © Peter Savage, BLP Insurance

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m Why ship components in containers when you can just use the containers?

One of the more innovative and durable solutions

Surveyor perspective

on his commission for the Channel 4 headquarters building in London.

Defining MMC So, what qualifies as MMC? Boxes completely kitted out with services and finishings that arrive on trucks to be craned into final location are ‘offsite’ but not necessarily a modern method.

Stacking the boxes to 20 storeys does perhaps make it conceptually modern and certainly innovative.

At the other end of the spectrum, insulated concrete formwork systems are equally offsite and innovative; simply polystyrene hollow blocks that slot together and filled with concrete.

Although they perhaps fail the criteria because of the intense on-site work required to build a structure, starting with stacking small ‘lego style’ components, they pass the test because they are a relatively new variant method of construction or more importantly, because they embody innovation that has not been road tested long term.

In between these extremes are any number of ‘panel’ systems; factory assembled flat panels that bolt together on site to form complete walls, floors and sometimes roofs. This type of system is typified by traditional timber frame, but more recently the panels are coming as cross laminated timber (CLT), structural insulated panels, and light gauge steel.

Timber frame has been going through a re-invention as a consequence of the demand for more thermally efficient buildings – the traditional 50 x 100mm stud framing replaced with deep composite I sections to provide a home for 200mm+ of insulation.

So what might almost have been deemed traditional construction becomes an MMC. A useful definition could be something that has not been tested in use in the longer term. It is salutary to note that even a slight change in the chemical composition of an adhesive can impact on the performance of say a CLT panel – so further innovation could easily pass under the radar. Interestingly, some of the most durable and innovative systems that BLP Insurance has Image © Paul Wornell, BLP Insurance

underwritten were sea containers converted into commercial business units.

Similarly, the volumetric systems used for hotels and student accommodation are now readily accepted and considered a normal, standard insurance risk.

Insurance risk From an insurance perspective, MMC can have implications during and post completion. It can be difficult to find sufficient insurance limits for timber frame systems. Equally, CLT frames going up to eight-plus storeys can be difficult from both a surveyor and insurer perspective, especially when used in combination with heavyweight masonry claddings.

Refurbishments are another potential issue for surveyors, where assumptions might be made based on a traditional build rather than something innovative.

But arguably, the real challenge is that should something goes wrong in one unit, the others will need to be checked, which creates a greater exposure for the insurer and can lead to the perception of a systemic failure.

During construction, the market appears to be pragmatic towards MMC. Mike Carolan, Director at Willis’ UK Construction practice, says that each insurer will differ, but as long as sufficient information can be provided, no loadings will apply to premiums. The insurer will want to know where the project is being built, which systems are being used, details of the construction methods and how they are being used.

Carolan adds that owner coordinated insurance programmes (OCIP) are popular alternatives to the traditional contractor all-risks policy (which has limitations in the event of insolvency), because they cover everything that is manufactured offsite as part of the project. An OCIP also allows for a smooth transition to the property owner’s policy.

In time, the insurance market may recognise that MMC can offer benefits to business interruption cover, where in the event of a failure, speed of construction (and ultimately reduced loss of profit/cost of alternative accommodation) become all important.

Helpful insight on MMC from the surveyor’s perspective is offered by Chris Mahoney, Director of Cloud Surveyors.

Most commercial property surveyors are not involved in the design process but at a much later stage, often at the sale or letting, so simply being able to identify the innovation can be an issue; and where does MMC stop and start? Even if the project manager is a surveyor, there are still challenges for the design team in understanding how the parts fit together.

Mahony makes the point that it is important to understand the implications of using glue as opposed to mechanical fixings and confirms BLP’s view that more often than not, it is the design or the workmanship that is the problem, rather than the materials used. One such example is push-fit plumbing or waste pipes in pods, where the access cost is the biggest expense in the event of a failure that might be caused by poor design or workmanship, rather than a faulty product.

There will always be challenges when dealing with innovation of any kind, so it is vital to fully understand the risk implications and ensure measures are in place to mitigate those risks. Ironically, this remains true even when dealing with traditional systems. However, the well-documented benefits of offsite manufactured systems and MMC make it vital that innovation is not stifled and complications not labelled as failure.b

More information > Chris Mahony is a contributor to the Modern Methods of Construction channel on www.isurv.com

Paul Wornell is a Technical Consultant and David Osrin a Business Development Consultant at BLP Insurance paul.worrell@blpinsurance.com david.osrin@blpinsurance.com

Related competencies include Sustainability, Design and specification, Building pathology, Construction technology and environmental services design, Economics and cost planning, Risk management

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RICS B UI L D I N G SU RV E YI N G J OU R N AL

BIM

Nick Blenkarn discusses the practical application of building information modelling in refurbishment

Opportunity knocks

T The pace of technological change brings with it a tide of risk and opportunity. For building surveyors, this is the time to assess workflows, gauge whether there is opportunity to offer clients new solutions, or at the very least not get left behind.

RICS continuing professional development provides the prod we need to move outside our comfort zone and look at developments on the horizon, learn new skills and seek fresh opportunities. The organisation is pushing hard to update building information modelling (BIM) specifications while working parties are researching the role of BIM managers.

Why ? Because chartered surveyors have the ability to step into the BIM arena and bring their skills to the fore in areas such as quantity surveying, facilities management and geomatics.

Retrofit reality From a geomatics (measured survey) and refurbishment perspective, BIM requires a step up in information capture 1 2 M AY/J U N E 2 0 1 5

to enable the 3D reality of buildings or structures to be represented.

A variety of methods can be chosen, but the stand out winner in terms of speed, accuracy and clarity of visualisation is 3D laser scanning. Decreasing costs, established workflows and increased usability have brought laser scanning to the masses; bringing efficiency to both the collection of data and the creation of BIM for existing buildings ready for renovation and retrofit.

Laser scan data or point clouds are effectively a collection of 3D survey points in space, each coloured by laser signal intensity return (multihue) or RGB (red, green, blue via a digital image to represent ‘true colour’). Site work is extremely rapid, with scanners observing up to 1,000,000 points a second to millimetre accuracy – surveying complex 3D geometry ready for addition to or creation of the BIM. The detail in the point cloud will usually be greater than the BIM, due to the requirement to model 3D elements to an agreed level of detail. Where required, scan data can be directly overlaid on the BIM to show where generalisations have been made.

Along with being used to create the BIM, scan data can be collected during the build process and held as a repository for the project team to use – checking build against design, querying key

dimensions, recording steel position prior to concrete pour. With free point cloud viewers available (Bentley Pointools) and point cloud engines being incorporated in design and management packages, this is another opportunity to collaborate around a central dataset.

3D specifications When planning a scan to BIM project, the specification for survey needs to move to the next level, compared to procuring 2D plans. Thought needs to be given to who are the stakeholders involved in the project, which disciplines will be working on the retrofit BIM: the requirements of how the BIM is created from the source point cloud data may differ depending on the respective needs of those who will be using it.

Potentially, structural engineers, architects, MEP designers and quantity surveyors may all have slightly

different requirements that need to be addressed. This is why a refurbishment BIM should be described as a BIM-ready model; providing an accurate shell, to an agreed level of 3D detail and a set level of feature attribution (wall construction and covering). This model can then be taken further by professionals with niche expertise, because the geomatics teams are not able to attribute certain M&E plant or know the structural properties of a beam.

The degree to which the BIM is generalised can also be discussed to agree wall alignment, for example.

Should a wall be shown as vertical if within a certain tolerance, or be depicted as is, leaning at an angle?

Should a beam be shown as a bounding area, or I beam shape or display every rivet?

The bottom line is no more red line around a site and standard deliverables requested. Use a scan to BIM specification, ask a geomatics surveyor for a BIM execution plan, use the new RICS Measured survey 3rd edition guidance note and generally plan to raise communication with the project team.

New developments

k Capturing 3D geometry of complex elevation at RICS' Parliament Square office

A conventional laser scanning team observe from tripods and use conventional survey control to help ‘register’ individual scans together to create a point cloud of an existing building. With the Images © The Severn Partnership

3D laser scanning survey on the RICS roof

rapid pace of technological advances, it is worth keeping an eye on what else surveyors could use to add value or to speed up data collection.

What would you say if you knew there was a technique that could survey an entire 1km-long street scene in a matter of minutes and have a point cloud ready to model the next day? Well, with the help of missile guidance technology, GPS, high precision scanners and a van, we can map at driving speed and potentially get a relative accuracy or +/-5mm for a

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section through the street or +/-20mm with control if we measured from one side of a town to the other. This is the kind of speed and accuracy modern mobile mapping systems can bring, such as the Pegasus2.

If you know what is possible, you can start to assess whether it is of value on your project, or bring innovation to the table and look good compared to your competitors. Increasingly, the 3D geometry of BIM is being used for rights of light calculations. So there is potential to look at the existing workflows and consider if mobile mapping could bring benefits.

Adding value?

If BIM is already being used by a growing number of clients, what is the next risk/opportunity on the horizon? Well, with a 2D plan deliverable as the end game, there is little potential to add value, if the data use stopped with architects, engineers or

Chartered surveyors have the ability to step into the BIM arena and bring their skills to the fore surveyors, inevitably data rot would set in over time.

The difference with BIM is that we have a 3D dataset capable of being visualised, used and understood by a much wider non-technical audience.

Take marketing, for example; conventionally, a project may be 3D modelled by architects or engineers, but visualisation ends with high resolution renders and possibly a 3D flythrough animation.

The opportunity is to repurpose the BIM as an interactive app that allows potential users of a new facility to train virtually. From enabling interested parties to walk around a model or to directors at board level using augmented reality to showcase a tender.

One of the stated benefits of BIM is that it continues past construction for the usable life of the facility.

From the building surveyor’s perspective, there is the opportunity to add more to the ‘I’ in BIM. As the intention is to avoid data rot and use

the BIM actively through the life cycle of a building, then key information such as the presence of asbestos, HVAC legionnaires’ risks or even georeference past accidents could be included.

This then becomes a resource for safety briefings, Regulation 38 fire details under the Building Regulations, as well as a collaborative centre point for managing the facility.

As surveyors, we could offer all these services to clients to allow them to leverage their investment in BIM for more than just design.

BIM is here to stay and 3D deliverables will start to become the norm. In 2004, Severn Partnership purchased its first Laser scanner and the response fro m clients was often: “If it costs more, we will stick with our 2D workflow”. In 2015, it features as a standard specification request from most clients.

Compared to five years ago, I can now view the BIM of an entire school, complete with structural beams and sprinkler systems from my iPad. I can even choose to host the BIM securely online and work on it in real time with a team spread around the country, tracking edits with a digital paper trail.

The BIM agenda has been gathering pace and once the private sector clients realise the government is pushing the BIM agenda to save 20% on construction projects by working faster, smarter and collaborating instead of cultivating a contract and claim culture, then it will really start to fly. b

Nick Blenkarn is Director at The Severn Partnership Ltd nick.blenkarn@sevenpartnership.com

Related competencies include Building information modelling, Conservation and restoration, Maintenance management, Data management, Inspection

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RICS B UI L D I N G SU RV E YI N G J OU R N AL

LEGAL

Laurence Cobb looks at two recent cases in his regular construction law update

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Matters of interpretation

Two recent cases provide useful guidance on the meaning of ‘construction operations‘ under the Housing Grants Construction and Regeneration Act 1996 (HGCRA) and illustrate, yet again, the care that needs to be taken when alleging a breach of natural justice.

The first, Savoye and Savoye Ltd v Spicers Ltd [2014] EWHC 4195 (TCC) considered the age old question of whether a contract was a ‘construction contract’ for the purposes of the HGCRA. Under section 104, a construction contract is an agreement for the carrying out, arranging or providing labour for the carrying out of construction operations, which is in turn defined in section 105. If the HGCRA applies, the contract has to comply with various payment and disputes provisions including the right to adjudicate at any time. If the contract fails to comply, default provisions apply.

Here, the defendant contracted with the claimant for the design, supply, supervision and commission of a conveyor system at one of Savoye's factories. The contract provided that if it were a construction contract under the HGCRA then either 1 4 M AY/J U N E 2 0 1 5

party could refer any dispute to adjudication.

Unfortunately, various disputes arose and Savoye referred these to adjudication.

Spicers objected, arguing that the contract did not fall within the HGCRA. The adjudicator ruled that Savoye should be paid what it had invoiced.

The court was asked to decide whether the contract was a construction contract for the purposes of the HGCRA. Having close regard to section 105 and in particular whether the conveyor system formed ‘part of the land’ within the meaning of section 105, the court ruled that the system was integrated with Spicer's warehouse and sufficiently attached to the floors and underside of the mezzanine floor to form part of the land.

Accordingly, it found in favour of Savoye, concluding that it was indeed a construction contract.

Contract guidance Guidance on what constitutes a construction contract is always welcome.

While section 105's list of construction operations is lengthy, the different permutations mean that ambiguity will undoubtedly creep in at some stage.

However, the reminder that this case provides is arguably even more important: when negotiating a contract, it is vital to consider whether the contract falls within the HGCRA. Park this question in the interests of a speedy execution at your peril. If in doubt, seek legal advice and bear in mind that the one certain way to include

a provision is to include it expressly in a comprehensive signed contract.

Natural justice The second case, Rydon Maintenance Ltd v Affinity Sutton Housing Ltd (2015), unreported, provides a reminder that an adjudicator will not breach natural justice by simply setting out their own procedure.

Here, the claimant and the defendant entered into a maintenance contract using the ACA standard form contract for term partnering.

This made provision for the adjudication of disputes under the Construction Industry Council Model Adjudication Procedure.

Time passed and Rydon carried out the work, submitting monthly payment applications to Affinity.

But realising that it had under-invoiced, the company submitted an invoice for the outstanding amounts, which Affinity refused to pay.

Rydon referred the dispute to adjudication, which found in its favour.

Rydon then applied for summary judgment to enforce the decision.

Affinity raised various arguments, for example that the adjudicator had failed not only to follow the

procedure agreed between the parties but had also to give each party an equal and reasonable opportunity to present its case. In addition, the adjudicator had decided the case before hearing all submissions, which was contrary to natural justice, it claimed.

The court dismissed Affinity's arguments. It held that the adjudicator was allowed to determine his own procedure so far as permitted by the Model Adjudication Procedure and the dictates of fairness. There was nothing objectionable in the adjudicator's directions and he had not departed from any agreed procedure, accordingly there had been no breach of natural justice.

Be aware that the adjudicator has discretion when setting their procedure so raise any objections immediately with all the parties. Most importantly, do not cry wolf about breach of natural justice. Time and again, the courts have shown reluctance to disapply an adjudicator's decision. Only consider disputing a decision on the grounds of natural justice when the breach is very clear and substantial, or risk the resultant loss of costs and time with a wasted court action. C

Laurence Cobb is Partner at law firm Taylor Wessing lcobb@taylorwessing.com

Related competencies include Contract administration, Conflict avoidance and dispute resolution procedures, Contract practice

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RICS B UI L D I N G SU RV E YI N G J OU R N AL

LEGAL

Assessing the damage

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Julian Greenhill provides an overview of recent dilapidations rulings

Section 18(1) of the Landlord and Tenant Act 1927 continues to generate interesting legal decisions. Two recent cases provide examples of the application of existing principles to the facts and, in the first case, Sunlife Europe v Tiger Aspect [2013] 2 P&CR 4 (Edwards Stuart J) and [2014] EWCA Civ 1656 (Court of Appeal), important points about who bears the burden of proof and the use of expert evidence.

The case concerned a lease of a building in Soho Square in London.

Tiger Aspect was the tenant under two leases from the early 1970s on full repairing terms. It left the building in a very poor condition at lease end in 2008. Sunlife was the landlord and carried out extensive repairs in order to re-let the building.

The trial judge began by identifying the common law measure of Sunlife’s loss, i.e. the cost of putting the property into repair together with loss of rent for the period of the works: per Joyner v Weekes [1891] 2 QB 31. The judge assessed the relevant figure at £1.35m, applying the principle that where there is more than one way to carry out the works, the tenant is entitled to perform the covenant in the least expensive way, even if the landlord carries out more expensive works.

The matter then turned to applying the cap on damages under section 18(1), which limits the damages recoverable by the landlord to the diminution in value of the reversion resulting from the disrepair.

1 6 M AY/J U N E 2 0 1 5

In other words, the difference between the value of the landlord’s reversion in the condition it should have been and in the condition it actually was at lease end.

The judge concluded that the value of the reversion in its actual condition at the end of the lease was £4.46m, but that the reversion ought to have been worth £5.87m if the tenant had performed its covenants. As a result, the diminution of £1.4m exceeded the cost of repair (£1.35m) so that the section 18(1) cap did not apply to limit the landlord’s claim.

Points of interest The Court of Appeal dismissed an appeal by the tenant against the judge’s assessment of the £5.87m figure. Three points of interest arise from the judgment of Lewison LJ in the Court of Appeal.

Once an expert’s report has been disclosed it is evidence whether or not the expert is later called to give oral evidence First, the burden of proving that the statutory cap under section 18(1) does not apply will not fall on a landlord who has carried out works of repair and improvement, but on the tenant. Lawyers can get unnecessarily activated about the burden of proof. But it is important in determining, for example, whether a landlord needs to get a section 18 valuation or can simply rely on the cost of repair as indicative of the diminution in value of their reversion.

In Sunlife v Tiger Aspect the tenant argued that where the landlord does work that goes beyond that which the tenant could have been obliged to carry

out, they bear the burden of proving that section 18 does not apply, and so the judge had been wrong to infer that remedial work was necessary to square the breach of covenant.

The Court of Appeal rejected the tenant’s appeal on this point. Provided, on the facts, a judge has concluded (as he did here) that the landlord would not have carried out the work if the tenant had left the building in repair, a judge is entitled to infer, absent evidence to the contrary, that the reversion is diminished in value.

It is only if the building would inevitably be improved regardless of the disrepair that the landlord will bear the burden of showing that section 18(1) does not apply.

Secondly, a residual valuation will be treated with caution by the court when applying section 18(1). The tenant’s primary case at trial was that performance of the relevant covenants would have left the building in an unlettable state, with the consequence that an incoming tenant would have

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expert’s figures where he could see they were based on a false assumption, while at the same time adopting others.

Dilapidations claim

ripped out much of the tenant’s work (if it had been done). In his expert report, the tenant’s valuer therefore used a residual valuation to identify the value of the building in the condition it ought to have been.

He identified a post-refurbishment capital value and worked back from there deducting a deferment factor, cost of works and developer’s profit to identify a land value. Lewison LJ noted that because a residual valuation is heavily dependent on the accuracy of estimated deductions, it will not be favoured where a more reliable valuation method exists.

In the event, the tenant had abandoned its primary case at the end of the trial, but left its expert somewhat exposed where he had been required to adopt a residual valuation because of the way the tenant had run its case.

Thirdly, once an expert’s report has been disclosed in proceedings it remains available to be relied on and the court is entitled to adopt some of an expert’s

opinion without being bound to accept all their figures.

The landlord’s valuer had made an incorrect assumption in his report as to the cost of the works, but the judge otherwise preferred his approach. The tenant’s valuer was not called to give oral evidence but the judge nonetheless used his valuation as a template for his calculation, applying the adjusted figures given by the landlord’s valuer.

On appeal, the tenant objected that the judge was wrong to use the tenant’s valuer’s report as a template when he had not been called to give oral evidence, and had been wrong to accept some of the landlord’s valuer’s figures but not all of them.

The Court of Appeal rejected this point as well. Once an expert’s report has been disclosed it is evidence whether or not the expert is later called to give oral evidence (Rule 35.11 of the Civil Procedure Rules), and the judge was entitled to adjust some of the

Another interesting example of the application of section 18(1) is to be found in Hammersmatch Properties v Saint-Gobain [2013] 2 P&CR 18. This was a dilapidations claim in relation to a large 1930s factory building let on full repairing terms. There was extensive disrepair at lease end. A stark difference existed between the parties as to the amount of the landlord’s claim: the landlord claimed £4.4m together with a substantial loss of rent; the tenant contended that damages were capped at £100,000 by section 18(1).

The case is a useful example of how the court will approach these often complex sorts of valuation. It also contains a useful summary by the judge, Ramsey J, of the legal principles for establishing the extent of the tenant’s breach. Applying the principles, the judge held that the cost of the works needed to put the property in repair was £3,087,712.

This exceeded the figure he identified as the value in repair, £3,061,251. Instead, the judge went on to consider the value of the site for development and concluded it was worth £2.1m on that approach. The diminution in value of the reversion was therefore the difference between its value in repair (£3,061,251) and the site value for development purposes (£2.1m) i.e. £900,000.

The landlord’s claim for damages was therefore capped pursuant to section 18(1) in the sum of £900,000 and it could not recover damages for loss of rent or insurance rent. C

More information > For the latest case law and how the outcomes impact on working practices, visit isurv.com

Julian Greenhill is a Barrister at Wilberforce Chambers jgreenhill@wilberforce.co.uk

Related competencies include Legal/regulatory compliance

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RICS B UI L D I N G SU RV E YI N G J OU R N AL

F LO O D I N G

Understanding the performance of materials is key to reducing the damage caused by flooding, explains Alan Cripps

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Testing the water

ollowing a flood event, we regularly hear the terms ‘resistance’ and ‘resilience’, but what do these terms actually mean?

Flood resistance is about reducing the amount of water entering the property.

This can be achieved by installing water-resistant doors and frames, non-return drainage valves, air brick covers and automatic closing airbricks.

But while these products are ideal for flash or short-term flooding to a limited height and duration, standing water will find its way through the brickwork. If the height of the flood water reaches above 600mm, depending on its construction structural damage can occur to the property.

Nor do such products protect against groundwater. Before fitting, it is important to assess the type of flood risk together with the type of construction. This should be carried out by a competent and qualified person, such as a chartered surveyor with relevant experience of dealing with flooding and its effects.

Thinking ahead Flood resilience means taking measures to reduce the damage caused by flood water that enters the property and limiting the disruption to the occupiers. The use of resilient materials is key, such as replacing a timber ground floor with concrete and a tiled finish and replacing a chipboard-based kitchen with stainless steel or 100% waterproof kitchen furniture now becoming available. Other measures include raising ground-floor sockets above the flood level to minimise damage and allow faster reoccupation of the property.

Boilers and other connected ancillary items should be installed above the predicted flood levels, preferably at first-floor level. Ground-floor underfloor heating systems should be avoided and all heating controls should be positioned above flood water levels.

Skirting board within the predicted water levels should be constructed from resilient materials, for instance plastic, with plasterboard wall finishes substituted with a waterproof equivalent. This will allow the clean-up and drying process to be considerably reduced, allowing the homeowner to return to the property faster following the flood. The same applies to door frames and doors, which has the result of making the 1 8 M AY/J U N E 2 0 1 5

cleaning up process much faster once the water has receded.

In addition, minimal materials would need to be replaced and the occupier would be able to return to the property much more quickly.

The impact of flood water on buildings can be immense, but much will depend on the nature of the flooding and the design and construction of the property. In order to be able to improve the flood performance of the buildings it is first necessary to understand the damage that flooding can cause and the performance of materials, components and elements of the building.

In its Living with Water report, The Commission of Inquiry of the All Parliamentary Group for Excellence in the Built Environment says: “Despite the increasing challenges, flood resilience and water management still remains a Cinderella issue at the highest political level, athough its importance is no less than that of transport and power” (http://bit.ly/1HDZQG3). C

More information >

BSI PAS 1188 2014: Flood protection products, specification • Part 1: building aperture products • Part 2: temporary products • Part 3: building skirt systems • Part 4: demountable products BSI will publish BS 85500: 2015 Guide to improving performance of buildings: Flood resistance and resilient construction later this year For details, visit http://bsigroup.com/

Alan Cripps FRICS is RICS Associate Director of the Built Environment Professional Group & Forums acripps@rics.org

Flooding: issues of concern to RICS surveyors and valuers (residential property), 1st edition RICS information paper has been published online http://bit.ly/1NbV8QR Related competencies include Building pathology Housing maintenance, repair and improvements, Sustainability

F LO O DING

A deluge of claims More than a year on from the floods that devastated areas of the UK, what lessons have been learned in terms of protection against such damage, asks Jonathan Hyndman

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he floods of 2014 caused an estimated £2.5bn of damage.

In terms of the construction industry, many projects were, at the very least, hindered and at worst, terminated due to the deluge of water.

In the aftermath, efforts were initially focused on site clean-up to allow projects to continue. However, as time elapses disputes invariably arise between employers and contractors in relation to project delay and, in particular, whether the contractor is entitled to an extension of time to complete the works and/or a claim for direct loss and expense. These disputes are generally hotly contested.

Looking at the provisions of the Joint Contracts Tribunal (JCT) Design and Build contract, the phrase ‘the devil is in the detail’ immediately springs to mind.

The contractor must notify the employer of ‘material circumstances’, as soon as delays become likely. This notification should specify the cause or causes of the delay and estimate the impact on the contractual completion date.

Only if the cause of delay constitutes a ‘relevant event’ is the employer obliged to grant an extension, as considered fair and reasonable.

provisions may provide the contractor with alternative grounds to apply for an extension of time where the weather conditions responsible for the delay are not sufficiently exceptional.

The position in relation to a contractor’s entitlement to claim direct loss and/or expense incurred as a result of flooding from its employer under the JCT form of contract is, however, somewhat different to its entitlement to an extension of time.

A contractor may only claim for direct loss and/or expense if progress has been impeded by a deferment of possession of the site by the employer or by a ‘relevant matter’. Weather conditions, no matter how adverse, are not encompassed in the term and consequently, the contractor is not entitled to additional payments for costs incurred.

Insurance cover

“ Only exceptional

adverse weather conditions will automatically constitute a relevant event under the JCT contracts

Defining 'adverse' Only exceptional adverse weather conditions will automatically constitute a relevant event under the JCT contracts.

Although not specifically defined, there is general recognition that to be considered exceptional, the adverse weather must significantly exceed, during a calendar month, the long-term seasonal average for the location.

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Relevant event under the JCT contract also includes loss or damage occasioned by any of the specified perils and force majeure. With flooding both expressly included within the JCT definition of specified perils and also arguably an event outside the control of the contracting parties, these additional

It is, of course, also standard practice for physical damage to the works and site materials to be protected during construction by an all risks insurance policy. The extent of any insurance recovery will depend on the specific wording of the policy, which the provisions of the JCT contract require either the contractor or employer to maintain in joint names.

Courts have, however, given guidance on the meaning of 'flooding' for indemnity purposes.

It is also worth considering that it may be possible to bring a claim in nuisance in respect of loss caused by escape of water ment Agency or utility companies, but liability would be difficult to establish given that although statutory authorities are entrusted with a mere power rather than positive duty, they cannot be made liable for failing to exercise that power. C

More information >

To explore the practical steps that employers, contractors and subcontractors should consider to minimise the impact of any future flooding or other adverse weather on a construction project, see the video at http://bit.ly/1FnQbia

Jonathan Hyndman is a Partner at Rosling King jonathan.hyndman@rkllp.com

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RICS B UI L D I N G SU RV E YI N G J OU R N AL

INSPECTIONS

Chris Mahony discusses the issues to be considered when called to advise on installation of resilient flooring

Covering all the bases

I

In common with all floor coverings, resilient flooring can be subject to failure if certain rules are not adhered to during initial installation or aftercare.

Discussions with flooring manufacturers and installers show that most failures are caused by installation onto damp substrates, poor surface preparation or poor workmanship.

For building surveyors tasked with advising on installation, it is vitally important that the subfloor is tested for dampness in accordance with BS 8203:2001 Installation of resilient floor coverings by determining the relative humidity. The readings will determine whether work is needed to ensure the flooring will not be affected by moisture.

Correct identification of the substrate and its materials is important because this will affect drying times and the choice of any proprietary damp proof membrane systems. Substrate 2 0   M AY/J U N E 2 0 1 5

Relative humidity

k XpressLay by Altro: Underside has no adhesive and is suitable for new concrete floors with up to 97% relative humidity

build ups can include a damp proof course being placed beneath the concrete or screed, or both.

Depending on the make up, it can take between four and 72 hours to fully measure the moisture being given off by cement-based floors. For a cementitious screed of 50mm, the estimate is 50 days (i.e. 1mm per day), to achieve a recommended relative humidity (RH) of less than 75%, while for concrete floors of 150mm it may take Image Š Altro

over a year, according to the standard.

Proprietary subfloor treatments are available to enable floor laying to proceed over a damp screed. There are also innovative products for use directly onto damp subfloors, such as loose lay vinyl safety flooring with an underside emboss.

This forms tiny air channels that allows moisture in the subfloor to escape,, which can also significantly speed up installation time.

Air always contains invisible water vapour, the amount dependent on the temperature. The warmer the air, the more it can support.

The amount of water vapour the air is actually supporting, compared to how much it could support at a given temperature, is called relative humidity (RH). If the air increases in temperature, the RH drops. Conversely, if the temperature drops the relative humidity rises.

Where the RH is 100%, the air is said to be saturated, and if the temperature falls further, the air gives up its moisture in the form of condensation.

Surface condensation occurs, particularly in unwarmed buildings or rooms, so it is important to distinguish surface readings that might be caused by condensation, from those that may indicate true dampness; hence the need to measure RH.

Testing for dampness BS 8203:2001 sets out drying times for cementitious substrates, and how to assess the moisture content by measuring RH. To do this, most surveyors have an electronic damp meter with two prongs that measure resistance. The prongs provide a useful guide to the pattern of surface moisture (not the moisture content) but care

RI CS BU ILDING S URV EYI NG JOUR NAL

Top tips for laying bb Protect the screed once it has been laid to avoid damage from foot traffic and following on finishing trades – this includes muddy boots. bb Keep other wet trades off the screed and prevent water spillages. bb Always check the screed composition prior to laying. bb Ambient temperature should be maintained between 18oC and 27oC, for 24 hours prior to laying, which may be difficult to achieve during the winter months. Gas jet type heaters should never be used to raise the temperature while flooring is installed because these create more air moisture, so consider using other heating forms. The building should be wind and watertight on new construction. bb Movement joints in the screed must be must be repeated in the floor covering with an appropriate trim.

Also look out for mat wells, drainage outlets and service penetrations, all of which should be set out and fitted in accordance with the manufacturer’s written instructions. bb Ensure the flooring is laid in the direction specified and in accordance with manufacturer’s instructions for temperature, adhesive and colour matching. bb It is important that all floor coverings are conditioned before installation – again, check recommendations from the manufacturer. This will help prevent material curling at edges, shrinkage, etc, and will also enable checks to be made for possible faults and colour matching.

must be taken because any condensation that has formed on the floor slab will give a high reading.

Some meters also include a pad to detect moisture in the material up to about 12mm.

This uses the capacitance or search mode and again is useful to detect patterns and may reach beyond any surface condensation.

Hygrometers can be purchased as a standalone instrument, although some damp meters also include them. They are calibrated and connected to a humidity box sealed to the floor and record the temperature and humidity.

You can use humidity sticks that are drilled into the surface of the screed, covered and left to reach equilibrium. These readings must be noted for future reference in case they are needed to shed light on any issues that may arise.

Several readings should be taken from all areas of the room. The floor is considered dry enough for installation when there is a reading of less than 75% RH. For new floors, the specialist layer is likely to be responsible for testing.

Surface preparation In addition to the moisture content of the substrate, proper surface preparation is essential to avoid failure.

Flooring must be installed over a substrate that is sound, clean, dry, flat and smooth, and that will not break up under the use for which it is intended (consider foot traffic, wheeled traffic and other likely stresses).

Screeds are often sand and cement, and these can be power floated or hand finished. Anhydrite screeds are also widely available, which are free flowing,

self-levelling and can be pumped. Asphalt may have been used as a damp proof membrane. Some screeds, including self-levelling can also be ‘poured’ onto insulation material. In this case they are usually up to 75mm thick. It is quite common to lay a latex floor screed over these after they have dried. The latex and subfloor will need to be dry prior to laying adhesive.

Selecting the right adhesive is an important part of any successful installation. It must not only be suitable for the type of product, but also for the area of installation, for example, for wet (shower room) or dry use (corridor), or where heavy footfall or wheeled traffic is expected.

Other factors that can affect the success of adhesive include coverage rates, the installation temperature and selecting the correct size trowel notches. Reputable flooring manufacturers supply detailed technical information with their products as well as guidance for use.

A word of caution, some older adhesives (and floor coverings) may contain asbestos fibres in their mix.

These should be identified, and may need to be removed and disposed of by licensed contractors, bearing in mind that this will add cost to the installation.

Joining and coving Joins in commercial floor coverings are created by coloured plastic rods of the same material, welded into a pre-prepared groove using a

hot air welding gun. Problems can occur if the welding gun is too hot or cold, or if the installer welds the seam too quickly or too slowly.

If specified, the vinyl can be laid up the walls to form a skirting, with preformed coves fitted behind for support. The external and internal corners are mitred and welded using the same materials and equipment as the joints. Floor penetrations can be cut for services, which must be appropriately sealed.

In a shower room or kitchen, try to have the whole floor laid and covered prior

It is vitally important that the subfloor is tested for dampness to fitting the shower trays or kitchen fittings. The floor must then be protected while other trades are working.

The maintenance regime also plays an important role. Not all safety flooring has lifetime slip-resistance, and effectiveness can be dramatically reduced by the build up of dirt or dust over time as the floor is used.

This is often not apparent by simply looking at the floor, but only through regular checks.

Selecting high quality flooring with life-time slip-resistance will help to avoid this issue. b

Chris Mahony is a Chairman of the RICS Building Pathology Working Group and Director at Cloud Surveyors chrism@cloudsurveyors.com

Related competencies include Building pathology, Design and specification

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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

James McAllister explores the legal responsibilities for repairs, where the express terms are not set out in the lease

T

Hidden liabilities

The subject of dilapidations is traditionally set against the contractual backdrop of the lease; specifically the express terms carefully drafted by the covenanting parties.

This usually focuses on the repairing responsibilities of the tenant.

However, taking the widely adopted definition of dilapidations being “a state of disrepair in property for which there is a legal liability to remedy”, it is immediately apparent this is not limited to the covenants expressly stipulated within the lease, and may not necessarily be confined to the tenant.

It is obviously unusual for a commercial business lease not to contain an express covenant to repair.

It goes without saying that where a lease clearly and unequivocally confers certain obligations on either covenanting party, then there is little doubt as to the parties’ contractual duties.

Occasionally, a drafting lacuna will arise – meaning neither covenanting party has the express responsibility to repair.

This was the position in Demetriou v Poolaction Ltd 2 2 M AY/J U N E 2 0 1 5

[1991] 1 EGLR 100. This type of scenario has presented the courts with the challenging task of determining the allocation of repairing liability where the lease is silent.

Ironically, the contrasting position where overlapping obligations arise has proven equally challenging: Petersson v Pitt Place (Epsom) Ltd [2001] EWCA Civ 86.

The fabled concept that “there is no law against letting a tumble-down house” (Robbins v Jones (1863) 143 ER 768) presents an initial insight in to the perennial issue that not all property is let in perfect condition. In the House of Lords decision of Southwark London Borough Council v Mills [2001] 1 AC 1, Lord Millett confirmed: “In the absence of statutory intervention, the parties are free to let and take a lease of poorly constructed premises and to allocate the cost of putting them in order between themselves as they see fit”.

Accordingly, the covenanting parties are free to negotiate their repairing obligations, and whether or not they elect to include any such obligations is a matter of agreement. But what are the repairing obligations if they are not expressly defined?

Implied covenants The first consideration is therefore the implied obligation to repair. While in general terms the established principle that there is no rule a repairing obligation will necessarily be implied in the lease (Southwark LBC v

Mills) there are a number of grounds where this does not apply in residential tenancies (i.e. where the landlord has implied obligations to repair as codified by statute under the Landlord and Tenant Act 1985).

The principal exception, in a commercial context, is where it is necessary to imply an obligation on one of the parties in order to give the lease ‘business efficacy’.

This was demonstrated in Barrett v Lounova (1982) Ltd [1990] 1 QB 238, where it was necessary for the court to imply an obligation on the landlord to repair the exterior of the property in order to enforce the tenant’s express obligation to repair the interior. The implied obligation of the landlord was necessary

to make the contract workable so that the tenant’s obligation to repair could then be invoked.

From a tenant’s perspective, there is an underlying implied obligation to use the premises in a ‘tenant-like manner’, as championed by Lord Denning in Warren v Keen [1954] 1 QB 15. The familiar passage from this case provides a guide as to the expectations, albeit later considered by Denning in Regis Property Co Ltd v Dudley [1959] AC 370 to be a common law obligation in tort, rather than a contractual obligation due to the remedies available in the event of breach.

Outside of the contract, the tenant may find the landlord has other grounds in tort to bring an action for disrepair.

Image © Istock

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Landlords generally have no liability in negligence for damage arising from defects in their property

Nonetheless, the principles remain extant as demonstrated in the comparatively recent case of Dayani v Bromley London Borough Council (No. 1) [1999] 3 EGLR 144. This case is also demonstrative of the measures landlords will pursue, in the absence of express repairing obligations, to find other means of enforcing repair. In this case the landlord made use of the Statute of Marlborough 1267, one of the oldest operational statutes, to successfully bring an action under the doctrine of permissive waste.

Nuisance

Waste Even if the express repair covenant is absent, there will usually be an express obligation imposed on the tenant not to commit waste.

Failing that, tenants have a common law duty in tort not to commit waste.

This liability primarily exists either as ‘voluntary’ or ‘permissive’ waste.

Voluntary waste is the action of causing deliberate damage to the premises, as opposed to permissive waste, which is the failure to act to prevent damage.

There has been uncertainty over the continued application of the law of waste, which has been termed ‘archaic’ by the Law Commission, with a strong recommendation for abolition.

The tort of nuisance also falls within the purlieus of landlord and tenant repairing obligations in the absence of express terms. This is contextualised by a tenant failing to keep in repair the subject premises to the extent this impacts on neighbouring property, or where the landlord fails to maintain and repair retained parts of the premises so causing damage to the tenant’s demise (Tennant Radiant Heat Ltd v Warrington Development Corporation [1998] 1 EGLR 41). Thus, an implied duty to take reasonable care falls on both covenanting parties and may invoke a repairing obligation where the condition of the property falls below the standard necessary to ensure reasonable care is satisfied.

However, it has been held that where a landlord is not liable under an implied obligation to repair, there is unlikely to be a residual liability in tort for nuisance (Baxter v Camden London Borough Council [2001] 1 AC 1), although such an obligation may well be supplanted by the provision of express terms elsewhere in the lease.

In the recent case of Jackson v JH Watson Property Investment Ltd [2008] EWHC 14 (Ch) the landlord was held not to be liable in nuisance for a defect that pre-existed the

lease term. The tenant of a 125-year lease granted by the landlord’s predecessor tried to claim against the new landlord for defects to his flat that emanated from the common parts within the landlord’s control.

The tenant’s claim failed on the principle of caveat lessee because the defects existed before the lease was taken, drawing an obvious parallel with the law regarding inherent defects.

Negligence It is established that landlords generally have no liability in negligence for damage arising from defects in their property (Cavalier v Pope [1906] AC 428). However, where implied repairing obligations can be construed against a landlord, a duty of care may arise under the Defective Premises Act 1972. This means that the landlord is required to undertake necessary measures to ensure the protection of “all persons who might reasonably be expected to be affected by defects in the state of the premises” (section 4(6)).

Nonetheless, in the absence of any express or implied repairing obligations and, commercially, where the premises are unfurnished, no such liability will arise (McNerny v Lambeth London Borough Council [1989] 21 HLR 188); the exception to the rule being where the landlord has designed or constructed the premises (Rimmer v Liverpool City Council [1985] QB 1). This has invited judicial criticism. As stated by Kerr LJ in Barrett v Lounova: “On its true construction the Defective Premises Act 1972

does not allow the implication of a repairing covenant”, inferring the Act should not be seen as an alternative means of enforcing a repairing obligation on the landlord when all else fails.

Occupiers’ liability Tortious liability to repair also exists under statute. Under the Occupiers’ Liability Act 1957, the ‘occupier’ is under a ‘common duty of care’ to ‘visitors’ of the premises. The Act defines an occupier as the person who has control of the premises.

This will usually be the tenant of the areas under exclusive possession, but may revert to the landlord for common parts of a multi-tenanted building. The definition of visitors is broad and includes any person given permission (express or implied) to enter the premises by the occupier.

Therefore, the duty of care owed by the occupier might not be discharged until certain repairs are undertaken to ensure safe access to the premises.

Under the Occupiers Liability Act 1984, an occupier is under an extended duty of care to ensure the safety of trespassers and to ensure they do not suffer injury while on the premises.

It is clear from the above that the liability to repair is not strictly limited to the covenants articulated by the lease. While it is unusual for a commercial lease to be silent on the allocation of repairing obligations, it can happen, and the absence of such terms does not always mean the parties are off the hook. b

James McAllister is a Director at The Dilapidations Consultancy jm@dilapidationsconsultancy.com

Related competencies include Legal/regulatory compliance

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RICS B UI L D I N G SU RV E YI N G J OU R N AL

C O N TR ACTS

Matters of principle Variations in contracts can take time and money to resolve, so make sure the terms are clear at the outset, cautions Michael Sergeant

A

t the end of a construction project the parties will often have a long list of unresolved variations. Many of the items will involve disagreements as to how changes are valued. The amount in dispute will normally be of comparatively low value and can normally be resolved through negotiation.

More problematic are the variations where there is a difference in principle as to whether the item of work is a change or not. Because the whole basis of entitlement is disputed, the sum of money involved will typically be much greater.

These ‘in principle’ disputes will normally divide the parties for one of two reasons. First, there may be disagreement on whether the item of work is extra or within the contract scope.

Second, it may be accepted that the work is extra but the employer may deny that they ordered the work and therefore have no obligation to pay.

Deciding extras It is surprising how many construction disputes are essentially disagreements about what the contractor was supposed to build and therefore whether an item of work is extra. In other industries, such disagreements are much less common. This is because of a number of factors that distinguish construction contracts from those for the sale of ‘normal’ products: a construction project is a ‘one off’ in the sense that it is unique to the land on which it is constructed, it is technically complex and has yet to be built at the point the contract is entered into. These factors contribute to the problems that arise with contradictions within the defined scope.

A construction contract will describe the works that the contractor must deliver in a series of annexed technical documents, including a specification, drawings, pricing documents and a programme. These documents will have been produced by different teams coming to the project from a range 2 4 M AY/J U N E 2 0 1 5

of specialist backgrounds, and will often contain contradictions and gaps. While everyone in the process will seek to minimise or eliminate these discrepancies, it is important to recognise that they are inevitable. If the employer wants to fast track the project, with the financial gains that this will often represent, then more errors of this kind are likely.

It is important, therefore, that a contract contains provisions that allow discrepancies to be resolved. The most common is a priorities clause, which sets out a list identifying which technical document takes precedence over another. Typically, for example, the specification will be given a higher priority than the drawings. Contracts will sometimes contain provisions that give the contract administrator the power to assess which of two competing descriptions should take precedence if there is a contradiction. Incorporating such clauses can reduce disputes later.

Formal order A construction contract will normally state that the contractor is only entitled to be paid for a variation if the employer has issued a formal order for the work. Such a provision prevents the contractor unilaterally increasing the size of the project, and its price. However, this rule can prove problematic.

For example, the contractor may not be able to physically proceed with the work unless a design change is made.

The courts have therefore found a variety of ways around the strict application of this principle to prevent unfair outcomes.

For example, where the employer indicates to the contractor that it will get paid for the extra work in the absence of a formal order specified under the contract, then they cannot go back on this representation. In limited situations there may even be a positive duty on the employer to change the scope if the design proves unbuildable.

Disputes as to whether extra work counts as a valid contract variation can involve considerable sums of money.

In addition, there are the knock-on costs and liabilities. For example, the question is often at the heart of disputes about project delay. Therefore, the issues concerning the scope of works and formal approvals can be crucial – not only in determining payments due for extra work but also responsibility for project delay and liquidated and ascertained damages. C Michael Sergeant is a Partner at Holman Fenwick Willan and the author of Construction contract variations michael.sergeant@hfw.com

Related competencies include Contract administration, Dispute resolution and avoidance, Contract practice

LEG A L HELP LINE

Legal Q&A Extension of time and delay costs

Q

My contractor is 10 weeks behind programme due a week of persistent rain that saturated the insulation between the frame and the cladding and during the same period left it unable to secure carpenters for two weeks because they went to another job. Is the contractor entitled to an extension of time and delay costs?

>Charles Blamire-Brown

A

Coming to a fair assessment of extensions of time and prolongation costs is never easy, especially where there are issues of concurrency. There are a multitude of factors to consider and it can be a bit of legal and factual minefield. It is, of course, important to consider the various issues and arguments.

However, this should not trump taking a step back and asking what is really driving the delay to completion: applying Occam's razor, the simplest answer is often the better one.

NEC and JCT contracts Let's break the scenario down: does adverse weather, in principle, entitle the contractor to an extension of time or delay costs? This will depend on the particular contract. Standard form NEC and JCT contracts treat weather events differently: bb Under NEC: adverse weather is a compensation event if it occurs on average less frequently than once in 10 years. This is an objective test by reference to weather data prescribed in the contract (only the difference is taken into account). In such instances the contractor will be entitled to additional time and costs. bb Under JCT: “exceptionally adverse weather conditions” is a relevant event. It will also be a relevant event if it is a “specified peril” (e.g. a storm or flood). Exceptionally adverse weather is undefined; however, a common rule of thumb is the weather that exceeds the long-term average for the time of year and location of the project by a significant amount. Weather, no matter how adverse, is not a relevant matter. The contractor will therefore be entitled to an extension of time but will not to any costs.

On the question of whether the contractor is entitled to an extension of time or delay costs for not securing labour, assuming the contractor was not prevented from doing so due to any action or impediment on the part of the employer, this will not be a compensation event or a relevant event/matter.

The next question is whether the delay caused by the weather event was critical. The contractor must show that the

+info Charles Blamire-Brown is a Partner at Pinsent Masons LLP charles.blamirebrown@ pinsentmasons.com

weather has been in excess of what the contract allows and that performance has actually been affected. Moreover, the delay will need to impact the completion of the works as a whole/section.

The contractor will thus have to show that the activities affected by the weather event are on the critical path for the whole project/section. The assessment will involve an identification of whether the activities in delay, and subsequently affected activities, will lead to a delay to the completion date.

It is often tempting to think that the only way of doing this is through detailed programme analysis. However, very often, applying a common sense approach will be sufficient, particularly where assessments are made during an ongoing project. Indeed, the courts have a tendency to take a dismissive approach to detailed theoretical programme analysis, instead favouring an analysis on the facts.

It would be remiss not to acknowledge that the case law in this area predominantly relates to JCT. NEC is a different beast where assessments of delay are made prospectively based on the accepted programme and at the time of notification of the compensation event.

Concurrent delay The legal test for concurrency is “a period of project overrun which is caused by two or more effective causes of delay which are of approximate equal causative potency”. The events do not necessarily have to be concurrent but their delaying effects do.

The approach generally adopted by the courts is that the contractor is entitled to an extension of time for the period of delay notwithstanding the fact that there are two concurrent causes of delay, one of which is a relevant event (weather event), and the other is not (inability to secure carpenters).

Generally, the contractor will not normally be entitled to recover its delay costs in circumstances where there is concurrent delay (although check the contract). The contractor must show that, but for the weather event, it would have incurred the delay costs (i.e. the weather event actually caused the delay costs).

So, there is a lot to consider but taking a methodical approach and always having in mind what is really driving delay to completion should result in a fair assessment. C

Related competencies include Contract administration Contract practice, Commercial management of construction

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RICS B UI L D I N G SU RV E YI N G J OU R N AL

APC

Keeping to the brief

D

Ewan Craig, a speaker at the RICS annual ‘It’s Your APC’ conference, talks about the competency of development/project briefs

Development or project briefs is one of the optional competencies of the building surveying Assessment of Professional Competence (APC). Preparing development/project briefs demands a good ability to apply mandatory and technical competencies, for example: bb client care: to collect data, analyse and define the needs of clients to develop the brief bb legal/regulatory compliance: awareness of planning legislation and Building Regulations.

The levels At level 1 Demonstrate knowledge of the techniques used for cost, quality and time-related forensic examinations in your area of practice.

At level 2 Apply your knowledge of cost, quality and time-related examinations in your area of practice.

At level 3 Provide evidence of reasoned advice and report to clients on cost, quality and time-related examinations in your area of practice.

The project brief is the key reference document as a scheme develops. You should 2 6 M AY/J U N E 2 0 1 5

be familiar with these key documents, for example how it was prepared and developed, so you are ready to address questions and aspects related to them from your submission documents.

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.

Could you please explain how the criteria for success in the project brief were arrived at in project X? This is aimed at level 2, but could be extended to level 3, say if you gave reasoned advice on the criteria for success in a report to the client. The answer would explain pertinent issues to support your application of knowledge.

I was reassigned to a new client account team in firm Y; this was my first project with them. I was conscious that I would need to familiarise myself with their business needs and objectives for the project because these would identify the overall requirements for the project and direct me on the issues that matter to the company. I find it is critical to appreciate that a project is there to further my client’s business so their needs must be met.

The client also had other related projects. It was important that these were considered, because at an operational level the projects needed to allow business continuity and would demand similar resources such as in-house staff and management.

I discussed the business needs and objectives, together with its impact on related projects, for the project with the project sponsor in the client organisation and my manager.

These focused on a set time window when the works could be carried out, budget costs and resources, phasing with other projects and levels of quality in the client’s guidelines. I prepared a set of critical success factors which would meet the business objectives for the project, that I confirmed with the project sponsor. This proved useful because feedback highlighted that part of the facility had to be handed over early. I revised the critical success factors and incorporated these in the project brief.

or elimination, and opportunities realised.

Failure to do so could result in greater uncertainty in the successful project outcome.

I followed my practice’s methodology to risk management. The client’s appetite for risk was known and because the matter is subjective I checked the list with my manager, who was more familiar with the client, before sending it to the project sponsor. The risks were based on the project criteria and what could affect those that may vary or was unknown. This included costs such as market fluctuations, delays in gaining consents, and quality, such as a contractor’s failure to meet the client’s guidelines.

Would you please explain how you derived a list of risks for project Z and why consideration was at the project brief stage?

This is aimed at level 2. The answer would show the issues that were considered in applying your knowledge.

It is important to establish any known project risks because threats can then be managed through mitigation

Given the time constraints, your answer should give a brief but whole response.

Care should be taken to demonstrate your own skills, abilities and knowledge to the assessors. C

Care

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

Figures show that candidates with access to isurv.com are 12% more likely to pass than those who do not Related competencies include Client care, Construction technology and environmental services, Legal/ regulatory compliance, Design and specification

Building Construction Conservation Journal Journal

Lynda Jubb FRICS is Chair of the RICS Building Conservation Forum conservation@rics.org

OPINION

Collaboration in the drive for excellence Heading COVER LINE

A xxx PG.

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Adrian Stenning’s article in this issue about the RICS Conservation Awards is a timely reminder to us all that its great to work hard, but it’s also good to stop and give each other credit and encouragement for excellence.

Achievement is measured in different ways, and everyone who is nominated or even shortlisted, has been recognised even if, as is often the case, they are pipped at the post by other

Schooled in tradition

Arts students learn heritage skills in innovative approach to replacing StGeorge's sculptures PG.

28

teams, whose work better fits the assessment criteria.

The conservation awards are not always won by surveyors; indeed, they often go to teams led by architects. But there will be surveyors in the teams, and the point of the awards is to celebrate collaboration.

Indeed, I tend to say that for design work, architects are often the picture, but surveyors are the frame.

The fact that the RICS Awards are so highly valued by everyone in the industry is a compliment to the skill and standing of the judges, and the esteem in which surveyors are held throughout the industry.

The fact that we can celebrate the successes of others signifies the generosity of RICS surveyors working in our sector, and shows that we understand that supportive collaboration improves the

outcomes for our clients and the wider community.

Whether it is sharing our skills or working together for improvements in policy, nearly everyone I know in our sector works pro-bono in some capacity, putting their own interests to one side, to support others.

The awards run in every region, and I imagine that in time, RICS Awards will also be recognising conservation projects in other world regions, too.

Valuing our heritage is more than just being able to identify, develop and implement good practice wherever it occurs. To be

Quest for the best

Tools of the trade

How the judges pick the winning projects for the RICS Conservation Awards PG.

31

fully signed up to best practice, we have to be able to showcase that and tell others how we feel about our work.

So please don’t feel shy about popping an application in next year when the competition opens. Winning is great, but to participate in such a vibrant competition, as a judge or competitor, says everything about how surveyors value our heritage.

It also shows how happy surveyors are to cheer on those who will work with us to secure the public benefit and enjoyment, that well-conserved built heritage offers. C

Membership of the Building Conservation Forum is FREE. For more information, email conservation@rics.org

English Heritage’s revised Practical Building Conservation series is nearing completion PG.

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May/June 2015

rics.org/journals

H E R I TAGE S K I L LS RICS BUILDING CONSERVATION JOURNAL

n New grotesques in place on the Bray Chantry and South Front

q Below right: Decayed grotesque sculpture showing outsized scale in relation to corbel table

Martin Ashley looks at the innovative approach to replacing stone grotesques at St George’s Chapel

Schooled in tradition

S

t George’s Chapel, Windsor is a recognised masterpiece of late medieval European architecture and an outstanding example of the perpendicular Gothic style. The building is both Grade I listed and forms part of the Windsor Castle Scheduled Ancient Monument.

Integral to its architecture are heraldic and religious sculptures, such as the angel frieze running around the chapel interior. Outside, the chapel’s walls are home to a series of grotesques, representing the sacred, the monstrous and the absurd cheek by jowl, at both clerestory and aisle cornice levels.

Sadly, their elevated and exposed positions renders them extremely 2 8 M AY/J U N E 2 0 1 5

vulnerable to weathering, and a programme of repair and replacement has taken place over the centuries. The oldest of the existing replicas date from the 19th century, and many of these are now also now badly damaged or decayed. The need to address their condition presented a series of difficult aesthetic and technical challenges.

Far-sighted commission A simple response would have been to commission new grotesques on a like-for- like basis. However, the Dean and Canons take a far-sighted approach to their stewardship of the Chapel that embraces architectural evolution. In a courageous move, they commissioned students of the City and Guilds of London Art School to design new grotesques, and in doing so, allowed a centuries-old

carving tradition at St George’s Chapel to continue and flourish.

From the outset, the St George’s Chapel Fabric Advisory Committee advised that imitations or interpretations of the existing Victorian grotesques would not match the standard of the outstanding medieval carving tradition.

In many cases, the degree of decay made it impossible to guess their original forms. The Dean and Canons therefore encouraged the students to use this creative freedom, stretching their imagination and skills to produce spirited and unmistakably contemporary sculptures. Just as the original carvings in the chapel are audacious and full of life, so should their replacements be lively pieces that continue the spirit.

Images © Martin Ashley Architects (top), John Maine (above)

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The students bring their diverse backgrounds to the design programme such as Chameleon by Ghisain Puget (left), Phoenix by Clementine Nuttall (above) and Mother Earth by Gary March (below left)

of fun. That spirit lives on through several new grotesques, such as a behemoth devouring a hunk of stonework or the face peering out from a section of parted cornice. Elsewhere, tenderness prevails: a clutch of mushrooms is executed in beautiful detail with just the same skill as the 15th century natural forms found elsewhere in the chapel.

Throughout the development of each sculpture, the School’s principal and tutors, as well as members of the Chapel’s Fabric Advisory Committee Sculpture Group, guide the students toward a successful image for installation. Finally, the Dean and Canons seek the advice of an informal ‘hanging committee’ which judges where each individual sculpture is best placed in the context of the architecture and its neighbouring sculptures.

Technical issues

An early stage in the process for each annual intake of students is an introduction to the medieval carving tradition and its liturgical context at St George’s. From that point, the students are left to dream up their creations. The multicultural student body, freed from the constraints of historical reproduction, bring much of their diverse backgrounds to the programme. A medieval bestiary

has given way to a 21st century menagerie including a cobra, phoenix, pelicans and an octopus. Familiar beasts such as a lion or chameleon are given a Cubist makeover, while entirely new creations – such as a laboratory rat – join the cavalcade.

A study of the chapel’s misericords with their often ribald carvings shows that medieval craftsmen certainly had a sense Images © David Clare

Many building conservation decisions are concerned with addressing previous well-meaning but ultimately mistaken attempts at restoration. So it has been with the chapel’s grotesques. Whereas the medieval grotesques were arranged as a ‘string of pearls’ sitting below the corbel table, their Victorian replicas were oversized and disrupted the overall architectural composition of the Chapel elevations. Today’s carvings are deliberately smaller in scale, allowing them to sit in proportion to their surroundings while serving their own decorative function.

Another Victorian error had been to install grotesques using Bath stone. Not only was this material quite different to the Taynton stone used for the chapel’s exterior by its original masons, it is a relatively weak and had deteriorated M AY/J U N E 2 0 1 5 2 9

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Toadstools by Ivan Cudby, Cobra by Louis Francis and Lion Mask by Laura Barnett retain the medieval craftsmen’s sense of fun

n badly. The wish was to return to the distinct colour palette and character of Cotswold stone.

Taynton stone is no longer quarried and a number of free carving stones were assessed, petrological advice taken and British Research Establishment tests taken into account. The results for the weathering characteristics and durability of Syreford were excellent and it offered a close petrological match to the original Taynton stone. The stone was much liked by masons, and following visits to the quarry and traditional buildings in Cheltenham it was chosen both for general repairs to the walling and the sculpture programme. Already

the new sculptures have begun to weather back to a similar shade to the surrounding stonework.

The first three sculptures were presented to the Chapel in 2006. Since then the City and Guilds Art School has produced nearly 40 new grotesques.

These are being installed as the external stone conservation programme progresses, and funding is made available. Nineteen sculptures have been installed so far, with 13 inserted on the South Front in 2014 while scaffolding was in place as part of the chapel’s ongoing maintenance programme.

The imaginative programme is not only helping to ensure the survival and

evolution of one of England’s most important buildings, but is playing a crucial role in developing the skills of a new generation of craftspeople. C Martin Ashley is Principal at Martin Ashley Architects and Surveyor of the Fabric to the Dean and Canons of St George’s Chapel enquiries@ma-arch.co.uk

Related competencies include Construction techniques

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Quest to find the best Adrian Stenning explains the judging process for the RICS Conservation Awards

l Porthmeor Artists' Studios, St Ives, 2014 Building Conservation Award winner

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he prestigious RICS Conservation Award is one of eight prize categories that showcase the most inspirational regional initiatives and developments in property, construction and the environment.

Shortlists for the 2015 awards across each of the 12 RICS regions were announced in late February after sifting through the hundreds of entries. There is now much work to do visiting and assessing the projects prior to winners emerging in each category, and awards presented at dinner ceremonies for each region during April and May. Of the eight categories – Commercial, Residential, Tourism and leisure, Infrastructure, Building Conservation, Design through Innovation, Community benefit and Regeneration, only the winners of latter four go forward to the National Awards Final. These regional

entries will then compete to be the overall category winner, with one taking the ultimate accolade, Project of the Year.

As a judge for Building Conservation I visit all of the projects entered in that category, plus as many of the other projects as I can to assist and ensure that judging is undertaken with impartiality. By doing so, not only do I get to visit many fine and varied conservation projects, but I also get to experience projects that are outside my own sphere of activity. There have been several occasions when I have come across a new innovative design solution or approach that I can see might be useful in a conservation project.

In some respects the national awards judges have the easiest part to play, because the projects have all come through as winners at regional level and are all of a quality that could be considered a worthy winner overall.

However, this also presents the problem of having to compare what are often quite varied projects.

Images Š Adrian Stenning

Judging criteria Overall, the Building Conservation Award aims to acknowledge the importance of heritage, and the benefit it can bring to communities. We visit buildings or groups of restored buildings that involve high-quality craftsmanship, matched by careful and sensitive design that have ensured the conservation of the historic fabric for future generations to understand and enjoy.

We have developed and finessed the criteria for judging the category, but in short we are looking to understand: bb what was the philosophy behind the repair and conservation? bb how much of the original material remains in the building, and what are the important architectural features? bb what research was carried out and how did it affect your decisions? bb what techniques were adopted to conserve or re-use original materials and what traditional materials and/or techniques were used?

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Last year's Project of the Year, Penarth Pier restoration, also exhibited fine conservation work

bb how has any future use impacted on the character of the building? bb what are the major conservation achievements? bb were there any significant difficulties and how did you overcome them? bb what ‘educational‘ opportunities were taken – apprentice training, professional visits or other bb how were environmental considerations incorporated into the scheme and how has future maintenance been provided for? bb who is the occupier and how is it used? bb how have users and the local community received it? bb what are the building’s long-term prospects?

Worthy winners In judging for the Grand Final, although we read the paperwork prior to each visit, we view the project presented to us as if we know nothing about it. That often allows sometimes important subtleties to be highlighted, and allows us to explore issues and elements that are difficult to explain on paper. We like to ensure all projects are dealt with fairly and thus stick to a two-hour deadline, although this can be difficult with some of the larger and varied projects.

Time limits are also essential because we are often on a very tight timetable travelling long distances between projects all over the country by air, rail or car, with an overnight stay often essential. Overall, we give up 12 to 14 days of our year to judging.

In 2014, the 13 projects ranged from the SS Nomadic in Belfast to the 3 2 M AY/J U N E 2 0 1 5

k Judges at Ashdown House, Berkshire, which was highly commended in 2014 Edinburgh Centre for Carbon Innovation, to the Concrete House in London to Llanelli House in Carmarthenshire, down to the Porthmeor Artists’ Studios and Fishermen’s Cellars in St Ives, Cornwall.

Each held a fascinating story and a wide variation from what might be considered more pure conservation principles. But on final reflection we decided that the Award should go to Porthmeor because it was felt to be such a successful marriage of both excellent conservation of the building’s fabric, together with conservation of historical use.

Working collaboratively with the authorities, it was recognised that to ensure a sustainable future maintaining both artist and fishermen’s use further studio space would be needed. Such an approach was not out of kilter with the building’s development after research identified 21 previous phases in its life

and development. Strong conservation principles were followed in repairing the historical fabric with original techniques and mixes repeated, all successfully executed using local craftsmen and materials. The additional studio space had been sensitively and inconspicuously incorporated.

Narrowly following the St Ives project, the highly commended project last year was Ashdown House National Trust property in Berkshire. We were impressed by the research and attention to detail undertaken in understanding the structural issues, and in allowing long-term repair solutions to be provided using traditional materials executed to very high conservation standards.

The unknown nature of the repair requirements and risks associated with sourcing and opening a local quarry to extract the matching stone, required a flexible team approach with the contractor taking an active role in ensuring that the project was achieved within budget and to the exacting standards.

Although coming through the Community Benefit category, the overall Project of the Year also exhibited some fine conservation work. The restoration of Penarth Pier not only retained original features but also the historic uses of a cinema and ballroom while creatively adding a gallery, cafe and learning space, which is now well used by the local community, generating business and helping to restore local pride.

With the regional candidates now selected, I look forward to revisiting some of the best building conservation projects for this year’s finals. Although we may now know the projects, there will always be surprises. There can be no second guessing the winner, but it is always fun to try. C

More information

For details of the awards ceremonies, visit http://bit.ly/1eDocxs

Adrian Stenning is a Chartered Quantity Surveyor and is RICS accredited in Building Conservation adrian.stenning@stenningandco.com

Related competencies include Construction philosophy, Construction techniques

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Tools of the trade Robyn Pender assesses the importance of the English Heritage Practical Building Conservation guides

RICS BUILDING CONSERVATION JOURNAL

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ractical Building Conservation was one of the earliest projects of the Research and Technical Advisory Service of English Heritage. Tasked with providing government and wider sector support for the conservation of the historic built environment, team leader John Ashurst decided that the most effective approach would be to rework the field notes from his conservation team in the Ministry of Works into a series of technical guides. With the help of Nicola Ashurst, these were duly transformed into a series of five books, first published in 1988 and became essential references for the repair of historic buildings.

The decision to produce a new series was not taken lightly and revision has proved a monumental task. The first five volumes were published in 2012 – Glass and glazing, Metals, Mortars, renders and plasters, Stone and Timber (see Building Conservation Journal May-June 2013).

Conservation Basics, Concrete and Roofing followed in 2013 , with Building environment published in September 2014 The last of 10 volumes, Earth, brick and terracotta, will finally be published in July this year, by which time the technical side of English Heritage will have become Historic England.

The new volumes range in size from 300 to more than 700 pages, and are fully indexed. They include a wealth of background detail that the original series could never have provided.

Case-specific treatment

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Conservation basics offers advice on managing change in the building environment m The series will be completed with publication of the last volume in July

Images © Robyn Pender, English Heritage

The first thing to note is that the books do not prioritise treatment: intervention choices must always be case-specific, and so to print anything resembling a specification would be dangerous.

Moreover, conservation methods and materials will change over time.

Instead, the Building Conservation and Research team (BCRT) has designed the books to guide the reader through the process of effective conservation: how to understand a particular building and its history, how to assess its state of conservation, how to deal with the underlying causes of deterioration before considering further treatment.

While the latest tools and techniques for care and repair are described (together with their risks and benefits), the focus of the books is firmly on how decisions should be made to deliver the best long-term conservation: this is an approach that cannot date.

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n To make this possible, the books follow

a basic structural model, in which the first chapters look at the history of the materials or building systems being considered. Knowing how these changed and developed over time is key to understanding how and why they fail, and what needs to be done to address that.

Added coverage The two ‘fundamentals’ volumes Conservation basics, which covers the basics of legislation and logistics, and Building environment, which deals with the building envelope and the effect of building use, have no parallel in current building literature, even outside of the field of conservation.

Conservation basics was edited by Iain McCaig, with principal contributors and peer reviewers Graham Abrey, Paul Bryan, Alan Cathersides, Paul Drury, Steve Emery, Emily Gee, Robert Gowing, Mike Harlow, Alan Johnson, Anna McPherson, Matthew Slocombe, and David Watt. It uses its history section to trace the legislative framework for protecting the historic built environment in England.

The story, of course, is in constant flux, but it explains the context for milestones such as the Planning (Listed Buildings and Conservation Areas) Act 1990 and Conservation Principles, as well as non-heritage legislation that has had an impact on building conservation (for example, the Part L requirements).

Seeing this broad sweep is extremely helpful when trying to predict the impact of new legislation such as the National Planning Policy Framework.

The second part of the book covers the functional background to building conservation programmes. Conservation planning for maintenance and repair presents the processes involved in assessing values and significance, and in developing a programme of works, using case studies to illustrate the application of theory to practice.

Survey and investigation methods will be of particular interest to RICS members; common tools are presented in the context of what the survey is trying to achieve. Other chapters cover ecological considerations, the management of maintenance and or repair, and emergency planning.

Focus on science The second fundamentals volume, Building environment, necessarily had a very wide brief, and extends to a hefty 660 pages. After a short summary 3 4 M AY/J U N E 2 0 1 5

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Building environment covers the science and tools needed to understand, assess and deal with interventions, such as lightning rods at Canterbury Cathedral describing what is meant by the building envelope, the critical chapter on building science presents a new and practical approach to understanding the interaction of building materials and systems with structural loads, and most importantly with heat and with water. It attempts to bring simplicity and clarity to a topic in which misconceptions abound.

This book, too, continues with a background history, covered in two chapters: the development of the building envelope, and the development of building services. For many thousands of years building envelopes were based on permeable materials, but with the Industrial Revolution innovation became the order of the day, and by the second half of the 20th-century most envelopes were intended to be waterproof. The same period saw the introduction of heating, plumbing and power; it is perhaps not surprising that the impact of all these many changes has had ramifications that we are only just beginning to understand.

The different ways that types of envelope fail is discussed in the following chapter, Deterioration, which looks at the causes and impacts of slow Images © Robyn Pender, English Heritage

decay, sudden failure, and ill-considered interventions.

The chapter on assessment is critical and should be of interest to all surveyors. Building on the earlier chapters, it details approaches to surveying and monitoring and describes the many tools used to make assessment possible. As the book illustrates, however, the most effective tools remain “two open eyes and one open mind”.

If the causes of failure are properly understood, the best means of remediation will usually be obvious.

This is stressed in the short chapter on diagnosis, which robustly questions the symptom-led approach endemic in the ‘damp treatment’ industry, which is largely based on misunderstandings of the underlying building science. As the examples show, similar patterns of decay can arise from many different sources, so only by surveying the building itself can a specialist hope to identify the causes of deterioration.

Finally, a chapter on care and repair covers effective building maintenance, planning and carrying out interventions on the envelope and on the building control systems (both passive and active), and assessing the impact of interventions intended to alter the building environment.

In common with most of the books in the series, Building environment includes several stand-alone chapters to cover associated topics in detail: Buildings and human health, looking at a wide range of health risks from asbestos and radon to dust mites; sick building syndrome; dealing with disasters such as fires and floods and limiting damage; and improving energy and carbon performance, which presents a new approach to ensuring that buildings of all types are sustainable into the future. C

More information

The 10-volume series, priced £65 per volume, is published by Ashgate Publishing on behalf of English Heritage and is available from www.english-heritageshop.org.uk

Robyn Pender is Senior Architectural Conservator at English Heritage Robyn.Pender@english-heritage.org.uk

Related competencies include Construction philosophy, Diagnosis of defects, Construction techniques

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