Technical Bulletin Issue 14 by Sava

SAVA Technical Bulletin For registered members of the SAVA Scheme

Issue 14 | July 2012 All content © National Energy Services, Ltd Welcome to the latest issue of the SAVA Technical Bulletin. The bulletin focuses on Home Condition Surveys and associated non-energy issues. We trust that you will find the bulletin useful for your day-to-day work and we welcome any feedback you have about what you would like to see covered in future editions. The contents of this technical bulletin may supersede certain scheme rules or requirements appearing in the Product Rules, Inspection and Reporting Requirements, training manuals or elsewhere. Members must therefore ensure that they have read and understood this document.

IN THIS ISSUE Japanese knotweed–a new approach

Handling complaints

Car parking spaces–Reader’s comments

Septic tanks–a correction

Legionella–what is it?

Japanese knotweed–a new approach Over the last few years Japanese Knotweed has become an increasing source of frustration to homeowners and property professionals alike. The national press periodically carry horror stories describing how houses have been invaded by Japanese Knotweed. In one case a couple were reportedly advised that their newly-built house would have to be demolished because an infestation was so severe. Japanese Knotweed thrives on neglect, growing and spreading without restraint on unmanaged areas such as wasteland and the margins of railways and watercourses, so properties adjoining such land may be particularly at risk. New plants readily become established from fragments no larger than a fingertip but have the potential of spreading outwards 7 metres and extending their roots downwards as deep as 3 metres. Each season a series of bamboo-like stems grow up to 3 metres in height (Photo 1), while in winter only bare stems remain, awaiting new growth from fresh shoots the next spring (Photo 2).

This vigorous growth habit has led to many groundless myths about Japanese Knotweed. It can undoubtedly cause disruption to lightweight structures such as boundary walls, paths, garages, conservatories and drains but it does not have the capability of causing massive structural failure to normal house foundations in the same way that certain types of trees can. In fact well-known shrubs such as buddleia routinely cause more damage to masonry than Japanese Knotweed.

Photo 1: Japanese Knotweed stands comprise clusters of bamboo-like stems which grow up to 3 metres in height in a season. © Crown Copyright, GB Non-native Species Secretariat

The problem has been compounded by the lack of any objective guidance regarding the most suitable method of treatment or removal at domestic properties. Although property professionals are now expected to identify Japanese Knotweed in all seasons (see Photos 3 to 7 over the page), they have been placed in the impossible position of not being able to make meaningful recommendations, either for the most appropriate means of

Photo 2: the leaves drop in the winter, leaving the resilient stems exposed. © Crown Copyright, GB Nonnative Species Secretariat

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SAVA Technical Bulletin Issue 14 | July 2012 | ©National Energy Services structures such as paths, outbuildings or boundary walls.

Photo 3: new shoots emerge each spring. © Crown Copyright, GB Non-native Species Secretariat

(Continued from page 1) remediation or between competing treatment organisations. Meanwhile lenders have responded in different ways, some treating cases on their individual merits but others, including one national lender, refusing point blank to lend on any property where Japanese Knotweed is present. Mortgage conditions are inconsistent and sometimes impossible to achieve. In response to these increasing difficulties RICS (the Royal Institution of Chartered Surveyors) and a group of leading Japanese Knotweed treatment organisations recently defined a national protocol for assessing the risk posed by Japanese Knotweed in the context of residential mortgage lending. Their findings were set out in an information paper entitled “Japanese Knotweed and Residential Property”, published in March 2012. This described for the first time an objective means of categorising and reporting the risk posed to a property by Japanese Knotweed, similar to the way in which crack size has become accepted as a simple way of assessing and reporting the seriousness of building movement. It describes four categories of risk, defined mainly by reference to a seven metre measure of proximity of any growth to ‘habitable spaces’, garages or boundaries. The highest risk level, Category 4, is reserved for growth within seven metres of any ‘habitable space’, (including conservatories) or garages, or where severe damage has been caused to other

This highest risk category even includes Japanese Knotweed growing beyond the property boundaries where its proximity is within seven metres of habitable space or garages at the subject property. Growth within the boundaries which is more than seven metres from habitable space or garages, and where any damage to other structures is only minor, is designated Risk Category 3. Risk Categories 4 or 3 would warrant a Condition Rating 3 in the HCS. Risk Category 2 describes the situation where Japanese Knotweed is not growing on the property itself but is seen growing within seven metres of the boundaries (though, obviously, further than seven metres from any habitable space or garages of the subject property). Category 1 risk is used where growth is seen on adjoining land but is more than seven metres from the boundaries. Condition Rating 2 would be appropriate in the HCS for Risk Categories 2 and 1.

Photo 4: the stems, with a pretty mottled appearance, can grow 10 cm each day, creating the tall, cane -like ‘stands’. © Philip Santo

Photo 5: typical summer growth has distinctive ‘spade’ shaped leaves with a flattened base, growing alternately along zigzag stalks. © Philip Santo

purchasers who find the plant present at existing residential properties. The RICS information paper describes repeated chemical treatment over several seasons as likely to be the most appropriate form of remediation in the majority of residential situations where the requirement is simply to control or eliminate Japanese Knotweed growth. However, if construction works of any sort are anticipated it is essential that not only visible growth but also all root growth and affected soil should be completely removed from the vicinity of a proposed structure. This affects not only proposed extensions or conservatories but also more minor works such as driveways or hardstandings. Investigations into cases where plants have ‘grown into’ new buildings usually reveal that preparatory works prior to construction did not completely remove previously established root growth.

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The RICS protocol states that property owners faced with growth at Risk Categories 4 or 3 should request an appropriately qualified person or organisation to carry out a detailed assessment, provide a Japanese Knotweed Management Plan and give an indication of remediation costs, prior to undertaking treatment. The Environment Agency has extensive guidance on remediation but this focuses mainly on development sites and does not reflect the practical difficulties faced by individual home-owners or house

Photo 6: the delicate flowers emerge during the late summer. © Philip Santo

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SAVA Technical Bulletin Issue 14 | July 2012 | ©National Energy Services (Continued from page 2) When seasonal growth resumed the plant simply penetrated lines of weakness, such as junctions between building elements or service entry points. The provisions of the Environmental Protection Act 1990 means that soil contaminated with Japanese Knotweed must be treated as controlled waste, so any affected soil removed from a site must be taken to a suitably licensed disposal facility, adding significantly to costs. This makes the repeated treatment of growth on site even more cost-effective where building works are not proposed. The final piece in the jig-saw in managing this problem has been the recent launch, by a number of highly respected Japanese Knotweed treatment organisations, of a specialist standard-setting division under the auspices of the well-known Property Care Association. Members of this division will carry out remediation of Japanese Knotweed in accordance with the protocols set out in the RICS information paper specifically to meet the needs of the residential mortgage market, to achieve mortgageable status for affected properties. Lenders are increasingly likely to specify that remediation should be undertaken by organisations that have adopted these new standards. Philip Santo ,FRICS, is a director of Philip Santo & Co www.philipsanto.co.uk

Septic tanks: a correction In the last issue of the SAVA Technical Bulletin (Issue 13) we stated that discharges from septic tanks and package treatment plants to ground should be registered before 1 January 2012. In the period between writing and publication of the article the original intention that all such private drainage in England should be registered was postponed by the government while they reviewed the policy. The government now intends to make a decision by 31 December 2012. In the meantime the voluntary registration system still remains in place, so that if home owners wish to register now (perhaps because they need the registration to enable a house sale) then they will be able to do so. The Welsh Government is not undertaking a similar review of the current approach and the existing registration system will remain in place. In Wales, operators of a system that discharges to groundwater are still required to register by 1 January 2012

Further information can be obtained using the following link and using this web page to follow the links to more detailed statements provided by the Environment agency on the matter: www.environment-agency.gov.uk/ homeandleisure/118753.aspx We also recommend that you monitor this as the advice could change between now and the next issue of this bulletin The advice in the previous article is unaffected by this regulatory variation, and to remind you, we stated: For the surveyor conducting a HCS inspection the identification of a private drainage system has always needed careful consideration. Assuming that the cesspool, septic tank or package plant does not present any issues related to defects the surveyor must check with the home owner how often maintenance and emptying takes place. The surveyor must also ask where any outflows discharge, consider the surrounding area and verify, with the occupier/owner if the discharge has been registered. A clear description of these needs to be outlined in the HCS with a recommendation that this is confirmed as an addition to the standard legal enquiries.

Photo 7: the leaves drop at the end of the season leaving bare stalks, easily dismissed by the casual observer but very recognisable to the experienced eye, a key identifier during the winter months. © Philip Santo.

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SAVA Technical Bulletin Issue 14 | July 2012 | ©National Energy Services

Car parking spaces– Reader’s comments Following on from the article on allocated car parking etc. in the last SAVA Technical Bulletin (Issue 13) we received comments from John Bennett. He notes: “The 'allocated parking space' question is under the 'general description section' of the report. It asks the question whether the allocated parking space is 'on site' or 'off site'. In the example in the technical bulletin, would the turquoise space for the flat be 'on site' and the second example of the separate communal parking as 'off site'? Maybe this requires clarifying in the report writing template and a separate section for parking under Issues for Legal Advisors? “I think it is useful information for the client to know how many cars he can comfortably park in his private driveway. Maybe I will include this in future, such as: "There is a gravelled driveway providing car parking for two cars" and leave the 'allocated parking space' blank when not applicable.”

Taking the example in the diagram both parking spaces are technically ‘off site’.

blank when the parking is ‘on site’.

The red space is in a separate location from the house in ‘The Drays’ and therefore is clearly ‘off site’. However, Barley house is a block of flats and therefore the development has communal areas and the flats are separated from their parking, naturally. Legally the communal areas are not part of the property belonging to the flat. The plot in this case is the flat itself. The turquoise space is not attached to the defined area of the flat and that is why it is an allocated space within the communal grounds John also raises an interesting point regarding on site parking. He is correct that parking on the driveway is not ‘allocated parking spaces’ and as stated in the previous article you should leave the allocated parking spaces section

John’s further suggestion that giving the client further advice within the context of the Grounds section of the HCS is a good one. However, this should be given with caution. The surveyor needs to consider if the cars can be parked safely within the grounds and manoeuvred on site without being blocked in or blocking in other vehicles. A client should have common sense but consider the two following situations:

 The driveway in Photo 1 has two cars parked on it but these are not necessarily car parking spaces, because one of the spaces actually provides access to the garage

 The driveway in Photo 2 has space for several cars to be parked and space to allow cars to be driven away easily The point is that your description should not be misleading: in the first example ‘the driveway is capable of allowing some cars to be parked on it’ but it does not have ‘two car parking spaces’.

In both examples shown in the diagram below the parking space is ‘off site’. The definition of ‘on’ and ‘off’ site is one that has become well established in conveyance and surveying practice. To clarify: an ‘allocated parking space’ is one that is situated somewhere other than within the boundaries of the plot on which the dwelling is sited. Photo 1

Photo 2

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SAVA Technical Bulletin Issue 14 | July 2012 | ©National Energy Services been contaminated with the bacteria. For example, from breathing in the water vapour from a shower.

Legionella—what is it ? Two events have acted as a timely reminder to surveyors to be clear in understanding the risks of legionella in empty property The most recent reminder has been the outbreak of the disease in Edinburgh. The second and more relevant reminder is the publication by the Health and Safety Executive of a revised Approved Code of Practice: “Legionnaires' disease: The control of legionella bacteria in water systems”. This underlines legal requirements for landlords and their agents to ensure that the risk from exposure to legionella from all water systems in residential rental premises is controlled. This might not appear immediately significant, but it is a reminder that when we inspect properties that are empty or where the whole or part of the plumbing installation is not used then there is a potential risk of legionella being present. The legionella bacteria are found naturally in the environment, usually in water and can flourish in temperatures between 20oC and 45oC. This is one reason why hot water tank thermostats are employed to keep the hot water stored in them at 50oC or above. There are many potential areas where the bacteria could develop in residential property and these include:

Most people exposed to the bacteria do not become ill. People most at risk of getting sick from the bacteria are older people (usually 50 years of age or older), as well as people who are current or former smokers, or those who have a chronic lung disease (like emphysema). People who have weak immune systems from diseases like cancer, diabetes, or kidney failure are also more likely to be at risk. Shower heads are a potential breeding ground for the bacteria. It is spread by breathing in water vapour and showers are a particular risk location.

Legionella bacteria on their way into the body via the respiratory system; source BBC

The test of reasonableness When considering the properties we inspect, there is a duty in the Home Condition Survey to identify health risks. These risks are ring fenced by the report format but legionella is a real risk associated with neglected or infrequently used plumbing installations so we should identify the potential when we see it. This does not mean that you need to put a warning in every report that there is a risk of Legionella. The test of what is reasonable to report would be dependent upon the likelihood of the bacteria being a risk to occupants.

The level of risk is therefore determined by the factors associated with the property rather than the occupants. This risk would obviously be higher where:

 The property has been standing empty for some time, such as a property in possession of the mortgage lender

 There are defective parts of the plumbing system that might harbour the bacteria

 There are uncovered water tanks in roof spaces that have become polluted or where debris has been allowed to gather

 There are parts of the plumbing installation that are obviously not used but could be by a new owner, such as a shower in an unused en suite

 Areas of stagnant water,  Infrequently used outlets,  Debris in the system,  Thermostatic mixing valves People get Legionnaires' disease when they breathe in a mist or vapour (small droplets of water in the air) that has

Even if we have spoken to our clients before we provide our report, we do not know who will use the property or their vulnerability to the disease so we must assume that at least one family member might be vulnerable.

A water tank in a roof void without a cover is likely to allow debris to collect in the tank. The resultant pollution could harbour the legionella bacteria.

This list is not exhaustive but the risk is highest where water has been allowed to collect in a part of the plumbing installation, become stagnant and the temperature is within the ideal range for the bacteria to develop.

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Handling complaints Indications that the plumbing (above) and heating (on the right) have not been used should alert the surveyor to the potential risk of legionella lurking in the installation.

(Continued from page 5) This means that water tanks in roof voids and infrequently used shower heads are obvious places for the bacteria to develop and be distributed into the environment As already stated there is little opportunity to report the risk of legionella in the risks to people part of Section C within the HCS. It is best to identify this in the relevant section of the report relating to the element that might be the source of the risk: Sections of the HCS relating to the plumbing installation or to the roof void. However, there is also a need to think about what advice to give in the HCS in terms of legal enquiries. In accordance with the Health and Safety Executive revised Approved Code of Practice, landlords and agents must keep records for at least five years of their maintenance of properties and any risk assessments conducted.

You should therefore consider as part of your HCS report if it is necessary to advise that your client’s legal adviser makes additional legal enquiries. This would be particularly prudent where the property is currently let; alternatively, if the property is empty when you inspect; or, it is known to have stood empty for a while and it might have previously been let prior to standing empty. In all these situations the need to make further legal enquiry could be equally revealing. As long as you take adequate steps to identify the potential risk from Legionella and identify that risk in your report then you will pass the test of reasonableness.

It is sometimes hard to accept that professional negligence claims are a part of professional life. All professionals are likely to have to deal with them at some point in their career. Surveyors have been subject to a considerable increase in the number of claims made against them in recent years. A large proportion of these claims relate to alleged overvaluations and so do not affect those carrying out the Home Condition Survey (HCS) but the economic downturn isn’t focusing only the minds of lenders on the short comings of advice provided by surveyors. Other clients, who rely on surveyors for sound advice regarding the condition of property are also using the survey as an insurance policy against hidden defects and issues. Consider how many enquiries for surveys that you have taken where the conversation starts with the question: “ Are you insured”, or worse: “I want someone to blame if there’s something wrong with the property”. Such potential clients are best avoided. One effect of the economic downturn is that property investors and others are scrutinising advice given them in the hunt for potential claims that they may have against others, in order to make up for reduced revenue streams elsewhere. Being on the receiving end of a claim is not a catastrophe. The HCS has attached professional indemnity insurance for the life of the report. It is, therefore, important to know what steps you should take if a claim is, or might be, made against you or your firm.

The signs of disuse or neglect of a property are sometimes very obvious.

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SAVA Technical Bulletin Issue 14 | July 2012 | ©National Energy Services prejudiced their ability to defend the claim. It is also important that you do not admit liability, as this could prejudice the ability to defend the claim.

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Claims aren’t just against the surveyor and their advice Most members of the HCS accreditation scheme will not have previously dealt with a professional negligence claim. They’d be forgiven for thinking that claims arise as a result of an error that the surveyor knows they have made. While this is sometimes the case, claims can also occur in situations where the surveyor is not aware of making a mistake or as a consequence of the actions of other professionals who also provided advice to their mutual client. A key case illustrating the latter scenario arose in Theodore Goddard v Fletcher King (1997). Fletcher King, surveyors, had overall responsibility for a commercial letting. Theodore Goddard were a firm of solicitors who drafted the lease. They accidentally deleted the upwards-only rent review clause in the final version of the lease which was sent to be signed by the parties. A surveyor at Fletcher King saw the final version of the lease but failed to notice the error. This is a case where contributory negligence was awarded against the surveyor: Whereas the judge concluded that Theodore Goddard was primarily responsible, Fletcher King must share the blame. He assessed their share of blame to be 20 per cent. In the case of a HCS, it is easy to imagine where bad advice in the report or failing to mention something could lead to a claim of contributory negligence. Making the statement that you have seen a copy of the building control approval or a guarantee and confirm it is genuine could be construed as bad advice. It is much better to state that someone has told you that the alteration to the property has building control approval but this should be checked by your client’s legal adviser. Likewise failing to mention that a property is in a county where mining has taken place could be sufficient for the legal adviser to join you in the claim if they fail to obtain a mining report.

To notify or not? As indicated, sometimes you are made aware of circumstances that suggest that someone might make a claim against you. This could be a query regarding a crack the client has found at a property that you have surveyed but not mentioned in your report, or some other discrepancy. Or you might receive a letter from a solicitor advising of a ‘preliminary notification’ that a claim might be made.

Dealing with a claim If a claim is made against you or your firm, or you receive a preliminary notification that a claim might be made, it is vital that you take immediate steps to deal with it so that your insurance cover is not prejudiced. Working for yourself you might have taken steps to agree with a fellow sole practitioner to formally handle claims on your behalf. If you work for a firm an officer of the firm is usually appointed to deal with claims. Either way, you should always notify them immediately. The next step is to report the matter to NES so that they can inform the scheme broker, who will ensure that your insurers are properly notified in accordance with the terms of your insurance policy. Never attempt to defend the claim yourself prior to notifying your insurers. Following notification, you should await instructions from your insurers about the next steps to take. Your insurers will normally, in accordance with the insurance policy’s terms, have the right to take control of the defence of the claim. This could mean that either you are authorised to negotiate settling the claim within certain boundaries or that they appoint some one else (negligence specialist solicitors or loss adjusters) to handle the claim. The insurer could seek to reduce their liability under the terms of the policy if you have taken any actions that have

You should not wait until a claim has been made before notifying your insurers. If you become aware of facts which might give rise to a claim, you might be under an obligation to notify your insurers regarding the potential claim. The question of whether a notification should be made to your insurers is not a simple one. The insurance policy wording requires notice to be given of ‘circumstances’. Circumstances are defined as an incident, occurrence, fact, matter, act or omission that might give rise to a claim. The courts have noted that this test is a weak one. It is, therefore, more likely that you are obliged to notify a circumstance. However, there is a need for a reason (such as the crack not recorded in your report) to trigger the requirement to notify your insurers. If in doubt as to whether a ‘circumstance’ has arisen, it is best to be cautious and notify NES who will follow the procedures agreed with the insurer.

Resolution of a claim Claims against surveyors are governed by the Professional Negligence PreAction Protocol. The exact wording of pre-action protocol letters are often disputed by negligence specialists but where a claimant writes and formally serves a letter of claim on you or your firm, the protocol will apply.

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SAVA Technical Bulletin Issue 14 | June 2012 | © National Energy Services (Continued from page 7) The intention of the protocol is to encourage parties to settle the dispute quickly and without litigation, therefore minimising legal costs. However cynics have seen these letters used to frighten the recipient into blindly settling an unreasonable claim. Under the protocol, the professional has 21 days in which to acknowledge receipt of the letter of claim and a further three months in which to investigate the claim and make a formal response. In such circumstances insurers usually will instruct solicitors to represent the defendant. The solicitor will then commence their own investigations as to the merits of the claim. There are two key roles you can play to assist the insurer’s solicitors: Firstly you can collate all the relevant documentation you have so that the solicitor can conduct a thorough investigation of the claim. Secondly it is important that you ensure that everyone who was involved with the matter is available to assist with the defence of the claim. This is particularly important if, for example the surveyor who undertook the survey has left the firm as you will need to establish as soon as possible that they are available to help. The aim from this point on is to try to resolve the matter, according to the protocol’s terms, before the claimant issues court proceedings against you or the firm. Most claims are resolved at this point or soon after.

In many cases an early resolution of a claim will take into consideration the commercial view, i.e. a decision might be made to make a settlement and pay an amount that is less than the considerable cost of continuing to defend the claim. The commercial considerations in a claim can sometimes be seen by the individual surveyor as unfair where the surveyor considers that the claim could be successfully defended if it proceeded to trial. It is important to bear in mind, however that the legal costs of taking a case to trial can often exceed the amount being claimed. Add to this the wasted management time of the insurers, the defendant and others and it is easy to see why commercial imperatives sometimes take precedence over the principles of who is right. We are all at risk of professional negligence claims. Surveyors must be aware of the steps that need to be taken if a claim is made, or may be made, in order to ensure that their insurance cover is not undermined. You should always ensure that claims and circumstances that might lead to claims are dealt with promptly and that your professional indemnity is therefore protected along with your personal reputation.

Send your feedback to bulletins@nesltd.co.uk; back copies of all bulletins and an Index are available in the NES one Useful Documents section. Registration Services: 01908 442 277 registration@nesltd.co.uk Compliance: 01908 442288 compliance@nesltd.co.uk SAVA, The National Energy Centre Davy Avenue, Milton Keynes, MK5 8NA Web: www.nesltd.co.uk

Technical Support Helpdesk: 01908 442105 support@nesltd.co.uk Training enquiries: 01908 442254 training@nesltd.co.uk NES one Credit Top up line: 01908 442299

The content of this technical bulletin is protected by copyright and any unauthorised use, copying, lending or making available of it, howsoever defined, which is not specifically authorised by National Energy Services Ltd., is strictly prohibited. © 2012 National Energy Services Page 8 of 8