Designing Buildings - User contributions [en]

Options for dispute resolution

2016-01-12T08:04:56Z

Yu Chien: Created page with "Before any of the more formal procedures are initiated, there may be a period of negotiation where the parties attempt to resolve their differences themselves. This might be the ..."

Before any of the more formal procedures are initiated, there may be a period of negotiation where the parties attempt to resolve their differences themselves. This might be the best solution to the problem.

However; if negotiation fails, the parties may submit the dispute to mediation – a popular form of alternative dispute resolution. SBC11 clause 9.1 requires each party to give serious consideration to a request by the other to use mediation. Although it is not compulsory for parties to use mediation, however English courts strongly encourage this and have introduced cost sanctions against parties that refuse to resolve a dispute through mediation where it would have been clearly in its interest to attempt to do so. Usually the mediator is appointed jointly by the parties. Mediation typically lasts for 1 day. The mediator does not take sides, make decisions or judgements. He/she will talk to each party in private, and will not reveal anything to the other party. Mediator will seek to establish common ground and encourage the parties themselves to reach an agreement, and to decide upon the precious terms of that agreement. The advantage of this method is for the parties to still maintain a long-term business relationship.

(Where a construction contract is made with a residential occupier, it had been held that an adjudication clause is potentially an unusual and onerous provision which if it had not been individually negotiated, may be invalidated by the Unfair Terms in Consumer Contracts Regulations 1999.) However; if mediation also fails, then under the Housing Grants, Construction and Regeneration Act 1996, parties to the construction contract have a right to adjudication, designed to produce a decision that is binding unless the dispute is subsequently resolved in arbitration or litigation, or settled by agreement. Under SCB11, the adjudicator may either be named in the contract or nominated by the nominating body identified in the contract. The adjudicator must consider any information properly submitted by the parties and reach a decision within 28 days of the receipt of the referral notice. During this process, if a party fails to comply with any direction of the adjudicator, the latter may draw whatever interferences he or she feels justified. And if either party refuses to comply with the adjudication decision, the other may seek to enforce it through the courts.

If parties are unsatisfied with the adjudication, they may subsequently refer the dispute to either arbitration or litigation depending on what is agreed in the contract. The default of SBC 11 is litigation. Arbitration and litigation has many similarities – in both cases the outcome is final and binding. In other cases, processes of appeal are complex. Under the Arbitration Act, the arbitrator is empowered (provided that parties agree) to grant a rage of remedies similar to those obtainable in court. The advantages of arbitration include privacy – arbitration can be kept private whereas litigation is open to public and press. Secondly, arbitration process is consensual and parties have slightly more autonomy.

The advantages of litigation include the ability to include multi parties in the case to avoid duplication of hearings and potentially conflicting outcomes. Moreover; dispute heard in court can invoke two very powerful legal remedies – summary judgement and interim payment. 
It should be noted that even where parties have selected arbitration under their contract, it is still open for them to elect litigation once a dispute develops. However, the other party may ask the court to stay the proceedings on the ground that arbitration agreement already exists.

Disputes between Client and Architect

Disputes are often over negligence (failure to provide reasonable skill and care). The Architect has a duty to inform the client of his rights to refer dispute to dispute resolution via organizations such as the RIBA and ARB. In certain circumstances, clients will qualify for Legal aid if litigation is pursued. 
Note also that adjudication imposed by the Housing Grants Act does not apply to residential occupier, unless opt in. 
If recover sum is less than 5000 pounds then case will be dealt with in the small claims court. 
If no appointment, courts also recognize verbal agreement or contract by conduct. 
Architects are required to have professional indemnity insurance. The Arb requires a minimum of 250,000 pounds. 
All PII policies require architect to notify potential claims to insurer. Insurer will then contact claimant regarding matter usually via a broker/appointed claims handler.

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Procurement Options

2016-01-12T08:04:03Z

Yu Chien: Created page with "Procurement is the process of purchasing goods or services. There are many different routes by which the design and construction of a building can be procured. The selected procu..."

Procurement is the process of purchasing goods or services. There are many different routes by which the design and construction of a building can be procured. The selected procurement route should follow a strategy which fits the long-term objectives of the client’s business plan. Different routes also deal with construction risks differently. These risks include:

- Defaults of parties in terms of design/management duties. Or complexity of project does not match with team’s skill capacity 
- Physical unexpected conditions – ground, weather, defective material 
- Accidents causing damage to property or injury to persons 
- External factors such as change in legislation, planning approval, financial constraints (funding uncertainties), wat or civil commotion, insolvency, market fluctuations 
- Above will cause delays, Disputes or Losses.

Procurement Options

Analysis of this project’s possible procurement strategies will focus around the project’s specific characteristics.

A. Design complexity (Conventional/ Require time for detailing /Buildability advise from contractor/Specialist design) 
B. Management complexity (Simple/complex contractual relationships) 
C. Potential to split into packages/separation of design from management /design focus on one aspect or overall 
D. Client experience/acceptable level of duty depending on capability/willingness. 
E. Client’s right to variations/changes 
F. Contractual remedies/points of contact 
G. Speed (Duration, start on site) 
H. Certainty of Price

Based on the above characteristics, there are 3 main procurement routes to consider, each with different pros and cons.

General Contracting

Firstly General Contracting (GC) is where we the design team is appointed to produce design and contract documents. A contractor is then selected either through competitive tender or negotiation to construct the scheme based on the contract documents for a contract sum. 
The Architect/Engineer/Quantity Surveyor would be appointed as Contract administrator (CA) to oversee the contract implementation during construction.

A. Allows time for client + Architect to develop/refine design to client’s satisfaction. If Client requirement too simple, DB may be better. 
B. If documentation is incomplete for tender (provisional sum can cover some unknown), or where highly complex technologies requiring many specialist sub-consultants. The management aspect may become too complex for GC. 
C. If design integration of whole package is unifying discipline of project, GC 
D. Client requires no experience. Will participate in funding + tendering. 
E. GC contracts have detailed provisions for variations and variation valuation. 
F. With certain contracts, client reserves right to select sub-contractors. (Jct IC 11) 
G. Slow in relation as requires design to be complete. (although common practice for the letting of early enabling contracts like demolition and earthworks) 
H. Lump sum contract imply price certainty but huge range of variability.

Design and Build

There are many different forms of Design and Build (DB) contracts. In our case, the type of interest is one where the client appoints us the Architect to develop the Employer’s Requirements. This will be used in the tendering process and the most appropriate Contractor will be selected based on its Contractor’s Proposal. The Contractor will agree to finish the design and build the building based on agreed contract sum. We the architect may be novated to complete design or retained by client to act as Employer’s Agent.

A. High risk/highly adventurous scheme should not use DB. DB allows scheme to benefit from contractor’s experience during design stage in terms of buildability. However if aesthetic conflicts with ease of fabrication, requirements of fabrication will dominate under DB. One disadvantage is that employer’s requirement must be very clear and unambiguous, moreover should not be subjected to change. Quality of project will depend on this. 
B. Single point responsibility – nominate specialist is unsuitable for DB. 
C. Kit of parts, system buildings lends itself very well to DB. Or schemes where some aspects (e.g. façade + lobby) can be designed in detail by Architect, whereas other parts can be left to contractor. 
D. Client does not need experience. Under JCT DB, an Employer’s Agent will be appointed to administer conditions. 
E. DB has limited scope for change. DB may not be appropriate on projects with too many known – which will load contractor with risk of insolvency. The valuation of change under DB can be difficult without a comprehensive contract sum analysis. 
F. Strength of DB is single point of contact/responsibility, particularly those who want to avoid distinguishing between design and workmanship fault. In addition, the contractor will also take on design responsibilities of novated designer. 
G. Contractor will not rely on other parties to supply information. Communication are more efficient, therefore program and budget has shown to be more adhered to. Early start on site possible as contract also undertaking design work and can overlap design and construction processes. However this is assuming early assumptions and designs do not need revision. 
H. Cost certainty is an advantage of DB. It is a fixed price contract with less provision in contract for change. However single point responsibility + fixed price will mean that DB contractor may charge a premium for extra risks.

Management

Management type contracts involve the appointment of a construction manager or a management contractor to split up the works into packages. The packages will be let separately and sequentially in line with the construction program. The difference between construction management and management contracting is that the former establishes direct contractual links between client and trade contractors, whereas the latter is linked through the management contractor.

In our case, construction management (CM) will be more appropriate. 
A. CM allows for technologically complex projects involving diverse technologies and sub-systems. However design will not be the overriding feature of the job. CM is generally appointed early to bring in experience of construction site processes into client’s team 
B. No need for collateral warranty given that trade contractors are directly linked with client. 
C. CM will separate design and management responsibilities. 
D. The client must be experienced and has in-house capability to manage project. 
E. Client can make variations to packages before they are let. 
F. Client directly linked with each trade contractor, therefore need to have capability in house to allocate fault. 
G. CM allows for speedy progress and early start on site. However this may compromise decisions about least cost and exploration of problems from every angle. 
H. CM consists of a series of contracts. Therefore certainty of price will only come close to end of project.

In our case, management contracting (MC) will be more appropriate. 
A. MC allows for technologically complex projects involving diverse technologies and sub-systems. However design will not be the overriding feature of the job. MC is generally appointed early to bring in experience of construction site processes into client’s team 
B. Similar to General contracting, collateral warranty required given that work contractors are linked through management contractor. 
C. MC will separate design and management responsibilities. 
D. The client does not necessary need to be experienced. (CA and MC roles in contract to support client) 
E. Client can make variations to packages before they are let. 
F. Contractual structure similar to general contracting. Collateral warranty required from work contractors. 
G. Full design information is note required before work commence on site. MC allows for speedy progress and early start on site. However this may compromise decisions about least cost and exploration of problems from every angle. 
H. MC consists of a series of contracts. Therefore certainty of price will only come close to end of project.

 
Collaborative

The core idea of collaborative contracting is that points of difference and difficulty between the parties should be addressed as they arise and that risks should be actively managed during the project. Collaborative working can be added as a supplement onto other forms of contract (eg JCT SBC 11), however JCT also published the Constructing Excellence Contract. Contract will state the extent of design responsibility of each party. Risk register, risk allocation schedules and performance indicators will be used.

- Suitable for high risk projects / Unknown ground conditions and require design change to accommodate ground conditions. 
- Suitable for organizations involved in framework agreement. Chains. 
- Party may need to undergo training in advance. 
Contract Choices

I would recommend the use of a standard contract form drafted by committees such as the Joint Contracts Tribunal. Firstly, risks will be allocated more fairly between the parties (assuming that no clauses are amended). However it is advisable that parties still have a discussion to clarify details of risk allocation to avoid assumptions over the implications of standardized clauses. In addition, many standard forms are published in suites and will include sub-contracts designed very carefully to fit in the main contracts, so that a chain of responsibility if established through the supply chain.

Contract choice will also depend on 
- Contractor’s Design Portion 
- With quantities/approximate quantites/without quantities for SBC 
- Sub-contract (for SBC/IC) / Named contractor (for IC) 
- Framework agreement ? 

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Main statutory considerations and constraints

2016-01-12T08:02:43Z

Yu Chien: Created page with "Local Plan The Local Plan (and neighborhood plan if it exists) should be referred to in order to establish planning policy regarding development in this area. Plann..."

Local Plan 
The Local Plan (and neighborhood plan if it exists) should be referred to in order to establish planning policy regarding development in this area. 
Planning history investigation will reveal any existing relevant permission, consents, refusals and comments from the public. Note that if it contradicts with what is in the NPPF (National Planning Policy Framework), the NPPF overrides the planning history.

Planning Permission 
If under the Town and Planning Act Order 1990, the proposal is not a permitted development, it will therefore require planning permission. Pre-application advice from the local authority planning officer may be sensible. Client should also consider submitting outline planning at an early stage to text the likelihood of approval before any substantial costs are incurred.

If change of use is required, it is best to obtain guidance and advice from professional planning consultants. 
A1 Shops, A2 Financial + Professional services, A3 Food and Drink 
B1 Business, B2 General Industrial, C1 Hotels C2 Residential institutions 
C3 Dwellings, D1 Non-resi institutions, D2 Assembly + Leisure.

Listed Buildings 
Under the listed buildings and conservation Act 1990, Listing Buildings consent is required for demolition, alterations and additions within the site. The Local authority conservation officer and Historic England should be consulted. Buildings with Local Listing/Designation will also require consultation with Historic England and Local authorities and groups.

In London, there are many protected views, particularly along river Thames. Refer to the London View Management Framework and consult Historic England.

Conservation Zone 
Under the Listed Buildings and Conservation Art 1990, most alterations that will affect external appearance of buildings will require permission. 
If work is to be done to trees, the local authority will require at least 6 weeks notification for them to decide whether to make a Tree Preservation Order. 
Demolition of buildings in conservation area will require planning permission.

Substation 
Statutory undertakers/utilities companies should be consulted to establish any easements on the land in connection with the electrical substation. This easement and possibly other restrictive covenants will be attached to the property deed. Legal procedures to support any agreements to proposal will need to following consultation. (Restrictive covenants, once agreed between the parties, are placed in the title deeds to the property. They bind the land and not the parties personally. Common examples include an agreement not to erect any buildings or structures on the land or to use the land to run a business without the express permission of the developer.) Wayleaves is a means of providing rights for a company to install and retain their cabling or piping across private land in return for annual payments to the landowner.

 
Right of Way/Right of Light 
An easement is a right that someone may have to use land that they do not own in a certain way, or to prevent the owner of that land from using it in a certain way. Examples of common easements include rights of way and a right of light. They are usually created on a sale of part of land. For Right of way, consult local groups eg Ramblers and for right of Light consult professional light consultant. In terms of Rights of Light, the owner of a building with windows that have received natural daylight for 20 years or more is entitled to forbid any construction or other obstruction that would deprive him or her of that illumination. Neighbours cannot build anything that would block the light without permission. The owner may build more or larger windows but cannot enlarge their new windows before the new period of 20 years has expired.

Contamination/Hazardous substances 
If a site is likely to be contaminated, the client needs to be aware of their duties under Part 11A of the Environmental Protection Act 1990. Possible ground surveys will need to be undertaken. HSE (Health and Safety Executive ) and Local Authority Environmental Health Department should be consulted. Advise client to appoint a CDM coordinator under the CDM Regulations (Health and Safety at Work Act 1974) and carry out risk assessment of site prior to soil surveys for contamination (and notify project staff of risks) etc.

Under 2014 EU fluorinated greenhouse gas regulations, duty holders are obliged to hire trained technicians to carry out work on equipment containing F gases. F gases are common in refrigeration systems, fire protection systems, air conditioning and heat pump systems.The department of environment, food and rural affairs should be consulted.

To contain Hazardous substances 
If Proposal is to hold certain quantities of hazardous substances at or above defined limits, client must obtain hazardous substance consent, in accordance with the Planning (Hazardous Substances) Regulations 2015. Hazardous Substance Authority should be consulted.

Asbestos 
The duty to manage asbestos is contained in the Control of Asbestos Regulations 2012. If you want to do any building or maintenance work in premises, or on plant or equipment that might contain asbestos, you need to identify where it is and its type and condition; assess the risks, and manage and control these risks. A asbestos survey may be required. You may need to employ a licensed contractor to remove/work on asbestos if the materials are high risk.

Highway 
Under the Highway Act 1980, the Highway Agency should be informed of any proposed changes to access. Local Highway authority should also be consulted and informed of any proposed changes to access.

Environmental Assessment 
If the site is a SSSI/National Park/Industrial/Major development, an Environmental Impact assessment will be required under the Town and Country Planning Regulations 2011. Local authority should be consulted to determine scope of assessment and sustainability requirements. (Natural England may also be consulted for SSSI)

Party Wall 
Refer to the Land registry data. Under the Party Wall Act 1996, a party wall notice may be required. Party Wall surveyor and adjoining owners should be consulted.

Archeological remains 
Client should refer to PPS 5 (Planning Policy Statement 5): Planning for the Historic Environment, as well as arrange for Archeological Investigation

Rivers and Waterways 
Client should consider implications of river frontage and possible need for flood prevention measures. Refer to PPS 25 Flood Risk and consult Environment Agency / Canal and River Trust.

Section 106 
Client should hold preliminary discussions with the planning officer to determine likelihood of 106 agreement(s) and Community Infrastructure Levy (CIL)

Other Consents 
- Certificate of lawful development - If there is any ambiguity or question over whether your proposal passes the permitted development tests, or peace of mind you may choose to apply for a Lawful Development Certificate. This is not the same as planning permission but is proof that your household building work is lawful. 
- Mining or working of minerals 
- A scheduled monument consent 
- Certificate of immunity from listing 
- To display signs under the Control of advertisements regulations

Planning Permissions 
- Outline planning permission 
- Full planning permission 
- For approval of ‘conditions’ on a planning permission 
- For varying or discharging conditions attached to listed building consent or conservation area consent 
- For varying or revoking conditions attached to a planning permission 
- For approval of reserved matters following an outline planning permission

Note that the definition of Reserved Matters relates to outline planning permission or an application for such permission. This could mean any of the following, which have not been given within the application: 
- Access 
- Appearance 
- Landscaping 
- Layout 
- Scale with the upper and lower limit for the height, width and length of each building stated in the application for planning permission.

Other Constraints 
- Enterprise zone has tax Concessions offered to encourage business investment/simplified planning 
- Green Belt policy protects the land around larger urban centers from urban sprawl, and maintains the designated area for forestry and agriculture as well as to provide habitat to wildlife. 
- Urban development area have tariff put on development to control sprawl. 
- Housing Action area consists primarily of housing accommodation, where conditions are unsatisfactory and can most effectively be dealt with within a period of 5 years. 
- National Park 

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