Our webinars typically generate plenty of good questions and unfortunately we can only pick a few of those to answer as examples “on air”. Our webinar on Liabilities in Landscapes on 28 November 2019 was no exception, but in this case we have decided to follow up on some of the unanswered questions online (in some cases, consolidated, anonymised or simplified), since many of them coalesced around some fundamental matters. Most of these answers contain good principles applicable to all consultants, not just limited to landscape architecture.
1. What are risks in tendering based on landscape architect’s DA documentation? Who is liable if a town planning drawing is used for construction, without doing proper contract documentation for the project?
The risks of seeking tenders based on development approval or town planning documentation are that the design probably does not contain enough detail for the builder to accurately price or plan the project (leading to delays and cost over-runs) and does not contain enough detail to define the required quality and outcomes of the built works (leading to post-completion performance problems). Clients should be strongly discouraged from running tenders on incomplete documents.
Once the above problems have arisen, there is every chance that fingers will be pointed at the design consultant behind the incomplete design. To escape liability, some of the points the consultant would want to establish are:
• That their design was appropriately marked to show the stage of completion – e.g. DA or town planning. Labels like “Planning purposes only – not for construction” are useful here;
• That the design was appropriately complete up to the stage marked on it; and
• That the consultant did not encourage or approve going to tender on incomplete drawings – and, better yet, warned the client against it (in writing) with reference to the above risks.
2. How long are landscape architects liable for trees as they grow within a landscape? Forever? Does the landscape architect’s liability expire over time?
Like any consultant, a landscape architect’s risk of liability decreases over time, especially once 6-10 years have expired since completion, but it never fully expires.
There are many laws which limit the amount of time in which a party can be sued, but these all impose different time periods depending on what type of claim is being made. For example, if the Building Act 1993 in Victoria applies, then the landscape architect is protected from claims made more than ten years after the issue of the occupancy permit (s134). But that protection is not absolute, as personal injury claims are excluded from it, and claims made under the Commonwealth Competition and Consumer Act 2010 may attract a different liability period. In short, it’s complex, and ascertaining what time periods apply to a particular claim calls for legal advice.
Regardless of how much time has passed, the landscape architect’s liability is always assessed against standards prevailing at the time of design, even though those standards will probably have become more stringent by the time a claim is made. If you complied with your contractual obligations and applicable legislation at the time of design (including the National Construction Code provisions in force), and did what a reasonable landscape architect would have done at the time of design, you should not be held liable.
3. Are there any contractual limits to what we, the landscape architect/consultant, can limit our scope or services to?
There are some limited areas where you cannot contract out – for instance, obligations under safe design legislation must be discharged by any designer of buildings or structures, and this liability cannot be avoided by simply excluding it from your scope of services.
But, generally, your scope of services can be as broad or a narrow as you and the client agree. Including a specific “excluded services” section in your scope can be a good way to highlight excluded services, to avoid confusion or arguments. In the case of disagreement with the client, one solution is turning to price. The broader your scope, the more work is required, and the higher your fee should be.
4. Hold and inspection points are typically included on projects. Frequently, and mostly as a subconsultant to others, these are missed by the contractor and the landscape architect is not requested to attend. While this is the case, a practical completion inspection is still required. Is there a way this should be noted as part of this inspection?
The practical solution is to do what you can to have robust project systems in place so that hold points are defined and observed. By far the most reliable way to avoid getting pulled into disputes about defects is to get the defects fixed before completion, and the earlier a defect is detected, the better chance it can be corrected with minimal cost and time impact.
If a hold point is missed and there is reason to suspect a real risk of underlying defects, then you should consider using the procedures for opening up and testing in the construction contract. Without that, you would have to evaluate whether you can honestly certify practical completion at all. As a minimum, your certification of practical completion should specifically state that, due to the missed hold point(s), your knowledge of that aspect of the works is limited.
5. There is a pavement that seems patchy and not textured all round and I doubt it meets slip resistance. The Builder mentions he has BCA / DDA certification. Is that the right procedure? Should the landscape architect inquire further and get involved in an approval (then taking ownership of an approval) or is that certification enough?
Speaking generally, and assuming that the landscape architect has got some level of inspection or observation duty under their consultancy agreement/scope of services, the landscape architect should make their own assessment of whether the works comply. Obtaining a copy of the claimed BCA/DDA certification may form part of that, but is not a substitute for it. In cases where construction works are non-compliant, it is common for courts to apportion liability to design consultants, building surveyors/certifiers and builders. In other words, the building surveyor/certifier is not the final arbiter of NCC compliance, and is not the only party with obligations and liabilities in that area.
6. Is it correct that, where there is a slip and fall in an area that the public is not designated to be in for any reason (i.e. not close or adjacent to a designated path of travel for the public to/from/around the building) then there is no liability?
Intended use of a space is an important factor in assessing liability, and a landscape architect would be expected to take greater care with spaces designed for use by the public. However, we could not say there is no liability for non-public spaces, most importantly because all spaces still need to be safe for maintenance and cleaning staff who might access them. In addition, if, at the time of design, there is a reasonably foreseeable risk that members of the public could transgress into non-public spaces, then the duty of reasonable care would require the landscape architect to make those spaces reasonably safe.
7. Where is the responsibility of waterproofing residential swimming pools seeing as most residential pools do not have waterproof membranes, however, public swimming pools do have waterproof membranes?
A waterproofing membrane would need to be designed if (1) the National Construction Code requires it; or (2) a reasonable landscape architect would include it. Point 2 is a good topic for discussion within the profession, perhaps.
If it is not mandatory, an option is to discuss it as an option with the client and keep good records of the advice given and decision made.
8. What are key things client / architect can do if client does not want to spend further money on landscape architect?
There are examples of cases where cost-saving decisions to minimise the consultant team have turned out to be expensive mistakes. We can think of examples where failure to engage civil or acoustic engineers has generated defects claims, though not landscape architects specifically. If you can’t talk the client into engaging a full team of consultants, good practice is to advise the client of the risks of not engaging a specialist consultant, and keep a record of having done so. In the context of a webinar focused on landscape architects, we could not offer any opinion on whether there are practical ways to achieve a satisfactory project without a landscape architect on board!
This article is only general advice in respect of risk management. It is not tailored to your individual needs or those of your business, nor is it intended to be relied upon as legal or insurance advice. For such assistance you should approach your legal and/or insurance advisors.