building surveying journal october-november 2015

Incorporating Building Conservation Journal

Building Surveying Journal

October/November 2015

rics.org/journals

BUILDING CONSERVATIONRestoration mortarsWhy more research is needed

PG 28

Revolution timeWhy diversity is a strategy in the war for talent

PG 18

All is revealed

Rights to light issuesPG 10

Back to the wallDifferent interpretations of the Party Wall Act

PG 6

http://www.rics.org/uk/news/journals/

2 O C T O B E R / N O V E M B E R 2 0 1 5

A DV E RT I S I N GRICS BUILDING SURVEYING JOURNAL

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contents

O C T O B E R / N O V E M B E R 2 0 1 5 3

C O N T E N TS RICS BUILDING SURVEYING JOURNAL

Incorporating Building Conservation Journal

Building Surveying Journal

October/November 2015

rics.org/journals

BUILDING CONSERVATIONRestoration mortarsWhy more research is needed

PG 28

Revolution timeWhy diversity is a strategy in the war for talent

PG 18

All is revealed

Rights to light issuesPG 10

Back to the wallDifferent interpretations of the Party Wall Act

PG 6

4Level best Chaiman’s column

6Back to the wallMichael Cooper explores different interpretations of the Party Wall Act

8Beyond questionMatthew Hearsun discusses basement rulings

9Battle linesAlistair Redler advises on boundary disputes

10All is revealedPaul Smith discusses recent rights to light cases

12 And so, we waitVivien King considers a recent noise nuisance case

13After the floodSurveyors’ softer skills are vital in flood repair, as Jessica Lamond, David Proverbs and Rotimi Joseph report

17A degree of preparation?Stewart Russell examines how effectively building surveying degrees equip graduates for the industry they are joining

18Time for a revolutionDiversity is a strategy in the war for talent, says Amanda Clack

24On the safe sideGillian Birkby examines the insurance implications for principal designers under the CDM Regulations 2015

CONTACTS

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

B U I L D I N G S U R V E Y I N G J O U R N A L

Editor: Barney Hatt T +44 (0)20 7695 1628 E [email protected]

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

Advisory group: Gary Blackman (Malcolm Hollis), Alan Cripps (RICS), Brad Hook (National Energy Foundation), Mat Lown (Tuffin Ferraby Taylor), Patricia Newman, James Percival (Savills), Trevor Rushton (Watts Group), Roger Stanton (Tuffin Ferraby Taylor), Andy Tookey (Baily Garner), Terry Walker (Walker Associates Ltd)

The Building Surveying Journal is available on annual subscription. All enquiries from non-RICS members for institutional or company subscriptions should be directed to:

Proquest – Online Institutional Access E [email protected] T +44 (0)1223 215512 for online subscriptions or SWETS Print Institutional Access E [email protected] 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 [email protected]

Published by: Royal Institution of Chartered Surveyors, Parliament Square, London SW1P 3AD T +44 (0)24 7686 8555 W www.rics.org ISSN 1750-1032 (Print) ISSN 1759-3387 (Online)

Editorial and production manager: Toni Gill

Sub-editor: Gill Rastall

Designer: Nicola Skowronek

Creative director: Mark Parry

Advertising: Emma Kennedy T +44(0)20 7871 5734 E [email protected]

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B U I L D I N G C O N S E R VAT I O N J O U R N A L

Editor: Robert Mallett T +44 (0)20 7695 1533 E [email protected]

The Building Conservation Journal is the journal of the Building Conservation Forum

Building Conservation Forum Board contact:Frank Keohane (Paul Arnold Architects)

Front cover: ©Shutterstock

Book your place online today: rics.org/qsconference

RICS QS and Construction Conference 201520 May 2015etc.Venues, Victoria, London

This must attend event will examine the crucial role the Quantity Surveyor has to play in delivering the Construction 2025 targets. Bringing together expert speakers from across the construction sector, this conference will give insight into the demands on the sector at a time when cost efficiency is a dominant concern and will examine the evolving role of the QS as it adapts to a changing market.

Key sessions will address some of the most pressing concerns facing the profession including, a CDM regulations update, the impact of BIM, the role of the QS in infrastructure, implications of early supply chain engagement and adding value across the profession.

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www.rics.org/journals

Your RICS Journal is now available in ISSUU, an interactive page-turning digital reader. Ideal for reading on a tablet or desktop, it allows you to ‘clip’ and share part or whole articles and is compatible with android or iOS mobile devices.

Once signed in, just go to your usual journal home page and click on the link or follow the link from your regular email alert.

Journal goes interactive

RICS BUILDING SURVEYING JOURNAL

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


Alex Charlesworth outlines key policy areas the Group Board will be focusing on during the next year

Level best

OPINION

In recent months, the Building Surveying Professional Group (BSPG) Board has

been focusing on standards, RICS guidance, market insight and regulation. We now intend to look in greater detail at RICS guidance and regulation.

RICS is a self-regulating international organisation and strives to enforce professional standards. As a professional group, we have written various guidance notes but can we really say that the existing documentation sets out mandatory standards that can be regulated, or do they simply provide guidance as to best practice? If we are being honest, the latter may well be true.

Guidance notesThe BSPG is assessing both the available guidance notes and those in the pipeline to determine whether any of the following categories can be applied:

b International standards: Valuation and measuring standards have already been launched by RICS. Are there any others that we should be looking to promote? Perhaps technical due diligence or at least the core aspects of this?

b Professional statements: These are RICS technical rules and codes of conduct, which are also mandatory and regulated. These will essentially be a set of rules that a building surveyor should abide by when undertaking a particular service line. Pre-dating guidance notes, we had Practice Standards.

These were difficult to read, too detailed, and ultimately ended up being used by the legal profession and insurance industry to corner a surveyor when it suited their argument. We certainly do not want or intend to return to these type of documents. The matter will not be taken lightly and will focus on simple defined criteria by which our professional group should be, and is likely to already be, benchmarking as good practice. If so, we should be setting these as the datum we could be measured against.

b Information papers: These will be research papers and insight papers. While not mandatory, they will be considered best practice guidance note material.

I am acutely aware of the sensitivities around these changes. The BSPG will be setting up sub-groups to harness the wealth of skills and experience we have among our members. Through feedback from our opinion former meetings and surveys, we are in a good place to make use of the opinions and offers of help we have received. As always, it is your views that matter, so please do contact me if you have concerns, questions or wish to offer assistance on any of the sub-groups.

APCThe Assessment of Professional Competence (APC) is always a topic of conversation and RICS will continue to update and review all competencies. The BSPG will concentrate on the content, number of competencies and the levels required to reflect current

day-to-day requirements. RICS recognises that review of UK APC requirements is essential before any discussions can be had on an international scale, so for now APC global domination is sensibly off the agenda.

I am also pleased to announce that RICS is also looking at effecting and engaging communication in the form of Professional Group 2020 (PG 2020). Currently, businesses and individuals are inundated with disconnected emails, LinkedIn and social media posts. Trying to find key content and connections becomes more difficult. Furthermore, RICS’ own community forums are difficult to access and navigate.

PG 2020 refers to RICS research and development that is currently underway. Its aim is to provide a platform that will allow members to connect and engage far more efficiently, creating business opportunities as well as knowledge centres that really are of interest. Do not be fooled by the term 2020, they are hoping to deliver it before then.

On a lighter note, we have the annual building surveying dinner on 26 November. A great deal of attention has been given to the venue this year as well as the guest speaker to ensure the event is better than ever and I urge you to book early. I look forward to seeing many of you there. C

Alex Charlesworth FRICS is Chairman of the Building Surveying Professional [email protected]

Can we really say that the existing documentation sets out mandatory standards that can be regulated, or do they simply provide guidance as to best practice?


Subsidence ForumThe Subsidence Forum is to hold a training day at BRE Watford on 22 October. It will include presentations on fracking, CDM Regulations 2015, and asbestos, as well as topical legal and technical issues. n www.subsidenceforum.org.uk

Scotland Building Surveying Conference12 November, GlasgowThe conference will include guidance on building pathology issues, modern commercial building defects, BIM and historic building conservation.n www.rics.org/bsscotconference


UPDATEDeal or no Green DealIn a series of controversial and unsettling announcements, the newly elected government withdrew funding for the Green Deal in June, effectively ending the previous administration’s flagship energy efficiency retrofit programme (http://bit.ly/1ejkSwX).

Subsidies for onshore wind farms have also ended and the government has launched a consultation that proposes to end subsidies for small scale solar farms. Finally, zero carbon homes targets have been scrapped, which also means that efficiency improvements due to be implemented under provisions within a new edition of Part L to be introduced in 2016 have been abolished. This leaves Part L 2013 to set the standards for the foreseeable future.

The government intends to replace the Green Deal scheme with a simplified version that is promised to be more industry and consumer friendly, although details have yet to be made available.

Ending onshore wind farm subsidies also brings into question the government’s support of other renewable energy technologies; especially rooftop solar power, elevating the risks associated with investing in these technologies. Meanwhile, the wisdom of scrapping zero carbon homes targets has been challenged by industry leaders.

These announcements undermine confidence, deterring investors and innovators from developing long-term solutions to improve the energy efficiency of the UK built environment and decarbonise the energy infrastructure. The government stance appears to focus on reducing the cost of energy by increasing native oil and gas supplies (including controversial shale gas); a short-term fix, postponing the real challenges for the next government to address and possibly imposing environmental concerns onto the next generation. This stance is out of kilter with that of progressive businesses.

Meanwhile, the longer term picture remains unchanged. The Minimum Energy Efficiency Standard comes into force in April 2018 and targets such as the EU requirement for all new buildings to be nearly zero energy by 2020 and the UK’s commitment to reduce carbon emissions by 80% by 2050 remain in place.

However, if left to find its own level without the stimulus of occupier preference, commercial drivers and regulation, that level might not be compatible with existing commitments to wider EU regulation. n www.rics.org/greendeal

In brief...

RICS Building Surveying Annual Dinner26 November, London Now well established as the social highlight of the building surveying calendar, the annual dinner will be held at the IET London: Savoy Place. The event is a great opportunity to network, entertain clients and reward colleagues. n http://bit.ly/1v8Bobh

International standards Peter Bolton-King, RICS Global Property Standards Director, has reported on the International Ethical Standards Coalition. The full article can be read in the September-October issue of the Construction Journal. n www.rics.org/cjseptoct

Journal goes interactiveYour RICS Building Surveying Journal is now available as an interactive ISSUU page-turning digital reader. Ideal for reading on a tablet or desktop, it allows you to ‘clip’ and share part or whole articles and is compatible with android or iOS mobile devices. Once signed in, just go to your usual journal home page and click on the link or follow the link from your regular e-mail alert.

Mat Lown is Partner and Head of Sustainability, Tuffin Ferraby Taylor LLP

Michael Cooper explores the difficulties of interpreting the Party Wall Act

Back to the wall

Practising party wall surveyors like to think of the Party Wall etc. Act 1996 as enabling legislation. It allows one owner to carry out certain works while at the same time offering the adjoining owner certain protections from the impact that these works might have on them.

The Act has existed in its present form since 1997 but does

not differ much from its predecessor, which applied only to certain parts of London. Although initially there were a number of well reported cases seeking to clarify the interpretation, the main ambiguities were largely ironed out by surveyors taking a pragmatic approach. However, the world changes and now surveyors and owners alike are once again challenging the meaning of various sections of the Act.

As a result of this scrutiny, the county courts have lately been providing some interesting decisions. However, until legal precedent is set by a higher court, they can provide contradictory conclusions. So what is the poor surveyor to do?

Taking two controversial issues and considering the virtues of each side’s arguments with associate Paul Gill, the results were interesting.

Building on a boundaryThe first discussion related to the interpretation of sections 1 and 8. In one recent instruction, our clients, who owned a yard that abuts the neighbour’s property, had received notice under section 1 from a neighbour wishing to build up to the boundary on their own side. To do so they also wished to have access and served notice under section 8. Interestingly, there is not a party wall in sight or any intent to build one.

You might imagine that this is a simple party wall matter but it is not; the Act (in particular section 1) does not apply where the boundary is already built on. With the presence of a building already on the boundary it seemed clear to us that the Act did not apply and as a result neither did any access that flowed from the notice. The other surveyor disputed this and we agreed to be bound by a third surveyor’s decision who subsequently concurred with me. The neighbour failed to get access and could not build.

Sometime later, and literally overnight, the neighbour took down their building and re-issued the same notices saying

that the boundary was no longer built on. The matter was again referred to the third surveyor who concluded that the circumstances had changed and section 1 now applied because there was no longer a building on the boundary. Thus, he also awarded access to construct under section 8.

In hindsight, the surveyors could have foreseen the actions of the developing owner and realised that in the end he was going to get his own way; so why not agree to the first notice avoiding two third surveyor rulings and a heap of fees? Well, the simple answer is we have to apply the rules and if we had accepted the first notice any award made would have been wrong and could have been thrown out if it came under future scrutiny.

My feeling is that something is wrong here; surely those who drafted the Act intended that someone constructing, for their own benefit, a building that sits exclusively on their side should not have the benefit of access over another’s land?

There are court rulings but they manage to conflict with each other. Sleep v Wise (2006), decided access over an adjacent property was not permissible for building up to a line of boundary. Kaye v Lawrence (2010) concluded common law rights are superseded by the provisions of the Act implying that access is permissible if notice has been served.

The virtues of both cases, including the non-binding nature of county court cases, were reviewed with my owner who also took legal advice. He was told that there would be a 50/50 chance of a successful appeal to the second third surveyor decision. My owner was at first keen to have the matter considered at court, but when I told him it was likely to cost £50,000 in legal fees he decided he did not want to fund a trial case.

Recently, a panel drafting the latest party wall guidance notes, of which I was part, voted on this and the majority were of the view that access was permitted for works covered under section 1; probably because the judge in Kaye v Lawrence was a high court judge sitting on a lower court.

As my associate says: “It does make a bit of sense, the Act is after all an enabling Act”, and while I have to agree, did it simply enable someone to take advantage? If the Act had not applied, the developer would have needed permission for access and may have had to pay consideration or perhaps


N E I G H B O U R LY M AT T E R S


1

Images © CBRE

Figure 1

Michael Cooper is Director, and Paul Gill is Associate Director of Building Consultancy at [email protected]


Related competencies include Legal



move their building away from the boundary to afford access for construction. It still seems a little unfair that my owners needed to put up with the disruption against their will.

Downward raisingIn the other issue we debated, my associate explained that his appointing owner’s neighbour wishes to create a basement and is underpinning the party wall with reinforced concrete. This is termed special foundations and requires a neighbour’s consent. My associate has sought agreement from his appointing owner, and recommended consent with the advice that “it is sensible to include reinforcement – it tends to cause less disruption and is more robust”.

My associate’s owner has, not untypically, fallen out with his neighbour, and will not give consent. In response, the owner next door served a fresh notice for raising a party wall in a downwards direction. He argues he does not need consent for the reinforcement because it is not a foundation it is a wall and will have a foundation below it formed of concrete without reinforcement (see Figure 1).

The Act describes a foundation as “the solid ground or artificially formed support resting on solid ground on which a wall rests”. So the question here is: is it a wall or a foundation?

Although this is a matter in dispute and technically for us, the surveyors, to settle, it is not untypical, to attempt to broker an alternative agreement between the respective owners. Therefore in this case, we see whether the owners will agree to the developing owner placing the reinforcement on their land only up to the boundary with just concrete on the other side. We are, of course, aware that the foundation or wall is one unit and according to the Act any foundation containing reinforcement on the land of the neighbouring owner requires consent. Thus, even if that part of a foundation that sits next door is not reinforced, the part on the other side of the boundary is, so it would still technically be a reinforced foundation.

Our suggested agreement worked for this case, but did not conclude whether a downward raising was acceptable. I hear there is a case being heard in a county court that will hopefully bring some judicial clarity to the issue, although this will of course still not be binding as a county court decision.

AdviceIt seems to me that with changing construction methods, lack of cohesive legal decisions and differences of opinion, surveyors are faced with the unenviable task of advising owners where there may not presently be clear answers. While we should keep up to date with court decisions and take a balanced look at every case on its own merits to advise on what we consider to be the best approach, we cannot always be right.

Where there is no precedent, the best advice is to let the owners decide whether they wish to run the gauntlet of litigation and advise of the likely consequences of focusing too heavily on just one side of argument. We concluded with a note to our national team: “Where there are conflicting county court decisions, advise your owners of both and be prepared to present the virtues of either case” – in other words “sit on the party fence”. C

1 Building on a boundary: Two sites separated by a fence, no party wall but notices abound under section 1 section 8 and section 6

2 Basement debate: Is this an underpin or raising downwards?

2




Matthew Hearsum is a Senior Associate, Solicitor-Advocate and Arbitrator at Morrisons Solicitors [email protected]


Matthew Hearsun discusses the legal issues arising from neighbouring basement extension works

Beyond question

Because of these difficulties many adjoining owners elect to use the remedy of self-redress.

This empowers the adjoining owner to take unilateral action and cut away the trespassing underpinning without the permission of the building owner. Encroaching underpinning is a simple and obvious trespass, and removal is almost always urgent to avoid delay on site, usually at great cost. But self-redress is not without risk.

The adjoining owner must take reasonable care to avoid any damage to the building owner’s property. This will usually require the use of a low-vibration techniques such as diamond stitch-drilling or, in suitable soil conditions, water lancing.

The adjoining owner should notify the building owner as soon as they discover the trespass and set out their intention to remove it (ideally enclosing a method statement). They should also invite the owner to take whatever steps they think are necessary to protect their property; for example, removing any wall hangings.

While it is a good idea to invite the building owner’s surveyor to review and if possible agree the proposed removal works, this is not mandatory. The adjoining owner may proceed to remove the trespass even without the building owner’s permission.

DamagesOnce the trespass has been removed the adjoining owner may seek to recover any losses incurred:

b if the trespassing underpinning included reinforcement, and written consent was given, a claim may be made under section 11(10) of the 1996 Act against the building owner at the time the second basement is constructed

b a claim at common law for damages for trespass, which may be made against the original building owner or any subsequent owner

b a claim under section 7(2) of the 1996 Act, which may only be made against the original building owner.

Claims under sections 11(10) and 7(2) of the 1996 Act may either be determined by the original surveyors (who dealt with the first basement) or in the county court. A claim for damages for trespass must be brought in the county court.

Note that none of these claims can be determined by the surveyors appointed to deal with the second basement.

LimitationClaims under sections 11(10) and 7(2) are sums due under statute for which the limitation period is six years from the date they became due. A claim for damages for trespass must also be made within six years from the date the loss was incurred.

However, limitation periods apply only to bringing a claim in court. There is no limitation period on referring a claim to the original surveyors. C

A s basement extensions become more popular, surveyors are frequently coming across cases where the formation of

the basement of one property (the first basement) has encroached on adjoining land, thereby affecting or preventing the formation of a basement on the adjoining property (the second basement).

Removing the trespassMost basement extensions are formed by underpinning a party or boundary wall, commonly with mass concrete or reinforced secant piling. It is generally accepted that the right to underpin, which is contained in the Party Wall etc. Act 1996, extends only to the width of the foundations of the wall. If the underpinning to form the first basement encroaches beyond the width this will constitute a trespass.

This trespass is only ever discovered during excavations for the second basement, at which point the adjoining owner has a number of options.

First, the adjoining owner may apply to the court for an injunction ordering the first building owner to remove the trespass. However, this is not without difficulty. It may take as long as a year to reach court, which will cause unacceptable delay to the construction of the second basement. The result is also uncertain; the court retains a discretion to award damages instead of an injunction.

k Trespassing piles prior to removal

Image © Peter Bird

If the underpinning to form the first basement encroaches beyond the width this will constitute a trespass


Alistair Redler describes the importance of negotiating skills when dealing with boundary disputes

Battle linesthe interpretation of legal documents setting out the boundary, a surveyor must be robust in standing their ground when they believe they are correct.

Rights of lightWhen negotiating rights of light, a different framework applies. While it is still possible that the surveyor will be called to act as an expert witness, in practice it is less likely. Rights of light negotiations deal with interference to an easement where the primary remedy is an injunction and where large compensation sums can be won. There is no obligation on a neighbouring owner to allow an injury to their easement. Therefore, negotiation is an open market one where the surveyors need to be aware of the respective positions of the two parties.

The developer’s surveyor should aim to reach a negotiated settlement at the lowest possible level. However, they need to be aware of the wider requirements of their client. It may be more important to achieve a prompt settlement to allow a start on site or a release of funding, than to achieve the lowest possible payment.

The neighbour’s surveyor may think that their role is simply to maximise the compensation payment. However, an intransigent position could lead to the negotiation becoming litigious and their client incurring

significant legal costs. If the neighbouring owner is a property developer, for example, then it would be a pyrrhic victory to achieve a large settlement only to find that their next development comes up against the previous developer, which then seeks retribution.

Party wall surveyorsParty wall matters are entirely different and it is incorrect to treat these as a negotiation. Party wall surveyors act impartially in administering the Party Wall Act and together form an independent tribunal.

However, the surveyors may have genuine differences of opinion about interpretation of the Act and the rights of owners. Where that applies, it is appropriate for a surveyor to argue their point and seek to persuade the other party’s surveyor. But party wall surveyors must always remember that their role is to efficiently allow the building owner to undertake works permitted under the Act while appropriately safeguarding the adjoining owner.

It is inappropriate for a building owner’s surveyor to

Most neighbour disputes require a surveyor to perform two key roles. The first is to advise the client on their rights, the necessary facts and a recommended course of action. The second is to negotiate with the other party’s surveyor to resolve that dispute. However, the three key areas – boundary determination, rights of light, and party wall awards – require very different approaches to negotiation.

When advising on boundary determination, it is highly likely that the surveyor will become an expert witness. The aim should be to establish the actual line of the boundary as closely as is reasonably possible and to do so properly and impartially, to increase the likelihood of reaching an agreement.

The surveyor should not seek to prove their client’s case at all costs, whether or not it is the correct one. Any negotiations should be approached openly and with the willingness to accept information that may change an initial opinion. Of course, when opinions differ on the position of the boundary, or

Alistair Redler is a Senior Partner at Delva Patman [email protected]


push an adjoining owner’s surveyor into reaching agreement on insufficient details or methods of working, or to use the threat of holding the fees down to a perceived “appropriate” level in order to prevent them properly assessing the proposed works.

Similarly, it is inappropriate for an adjoining owner’s surveyor to act in an obstructive or inefficient manner, or to delay the Party Wall Act process by requiring endless further information, method statements and technical checking without very good reason.

There is an increasing tendency among adjoining owner’s surveyors to take such an approach. As well as being inappropriate and unprofessional, this may lead the Act into dispute if it is seen as a means for surveyors to maximise their fees while obstructing a simple statutory process.

Even within this relatively small specialist field, a chartered surveyor must adopt the appropriate role for the particular discipline to achieve the result that their client or appointing owner deserves from the process. C




1 0 O C T O B E R / N O V E M B E R 2 0 1 5


Paul Smith discusses the issues raised in recent rights to light cases

All is revealedIn deciding against granting an injunction to amend the completed extension, the judge took into account that the Aimiuwus would need to move out to enable any required works to be undertaken.

A balanced view in calculating the level of compensation took into account the actions of the parties, diminution in value, reduction in amenity and increase in value of the ‘developed’ property.

This case provides a positive sign for developers: it is more favourable than Heaney and Reagan v Paul in relation to guidance on when the courts will grant an injunction as opposed to damages. The fact that the development was an extension of a family home is clearly material; it is debatable whether a commercial development would be offered the same protection.

The case does mean that neighbours will be pressed into taking action far earlier should they wish to obtain an injunction, rather than pursuing a compensation claim. To some extent, it serves the purposes envisaged by the Law Commission’s report and the notice procedures it proposed. C

Generic ‘rules’ in relation to rights to light can be difficult to apply and each case needs to be considered on its merits. A number of recent cases have reinforced this view.

In 2010, HKRUK 2 (CHC) Ltd v Heaney was heard in the High Court. In this case, Marcus Heaney, the owner of the former Yorkshire Penny Bank in Leeds, established the precedent that the victim of a rights to light infringement could obtain an injunction to demolish the offending part of a neighbouring development.

Heaney had taken no legal action to prevent the developer's works taking place and the developer ended up seeking a declaration from the courts to which Heaney issued a counter claim. The court ordered the partial demolishing of the offending elements at a cost of several million pounds.

As is often the case, the claim was settled and no demolition works took place. Nevertheless, this was sufficient to cause alarm in the development industry and was a contributing factor

in the extraction of ransom payments for the release of rights to light in the preceding years.

A lifelineIn 2014, somewhat unexpectedly, the Supreme Court threw something of a lifeline to the industry in the shape of Coventry v Lawrence. This related to noise from a motocross track in Suffolk, rather than rights to light, and whether the noise constituted a legal nuisance.

The five Supreme Court Justices became involved in a convoluted discussion on how their decision in this case might affect the way a nuisance existed and the remedies for such interference. They also considered how this might affect other areas of nuisance, including rights to light.

Essentially, their view was that, while an injunction may remain the primary remedy they should not be awarded as a matter of course. Instead, a more wide-ranging, open minded approach should consider the fact of each case, i.e. the courts should use their discretion.

This suggested that damages might be awarded in lieu of an injunction on a more frequent basis in future. Other issues debated by the Justices included the effect of an injunction on third parties and the existence of a planning permission allowing the activity in question.

Useful guidanceThe case of Scott v Aimiuwu, decided on 18 February 2015 in the County Court of Central London, provided useful guidance on the basis on which damages against an injunction could be granted. In some respects, it has revised current thinking after Heaney.

Mr and Mrs Aimiuwu built a rear extension which interfered with the light to four windows in Mrs and Mrs Scott’s neighbouring property. The affected rooms were the garage, workshop, utility room and bathroom. Even though the Aimiuwus had proceeded with the works knowing that it was in the face of objections from their neighbours, the judge, Edward Cole of Falcon Chambers, awarded compensation of £30,000, plus £1,499 for other 'specific complaints' i.e. the temporary interference while scaffolding was erected.

The compensation was calculated using the traditional ‘area loss’ approach and the judge applied a multiplier of 2.5 to the book value figure of £12,000. The judge believed that the injury to the Scotts, in respect of the value of their home, was small and the use of the affected rooms was clearly influential in this decision.

Paul Smith is Director, Building Consultancy at GL [email protected]


Gk Rights to light are based on the Ancient Lights common law

Image © Paul Smith

O C T O B E R / N O V E M B E R 2 0 1 5 1 1

David Powell is a Land Surveyor at David J Powell Surveys [email protected]

Related competencies include Measurement of land and property

Keep their limitations in mind when using Ordnance Survey maps, warns David Powell

Leaps and bounds

Figure 1 shows a typical situation where there is a bank, a line of substantial trees and a fence. On the OS map there is simply one solid line. It is not possible to ascertain which feature this represents. By matching the features with immovable objects (in this case, a nearby village school) I was able to say that the OS line (which had been used in a conveyance document) was probably the centre of the tree-trunk line, but I could not be certain.

Figure 2 shows a common configuration where a fence does not smoothly line in with the flank wall of a building but, on the OS map, it does. This is because OS cannot depict such small distances. This occurs regularly in boundary disputes and the surveyor has no choice but to explain to the property owners that the OS drawing does not trump features that exist on the ground.

Land Registry uses OS maps as the base for its title plans, but knowing these provide only an approximate picture of the UK it applies a “general boundaries rule”, which is intended to prevent people (especially surveyors) from scaling off title plans or using them with any sort of certainty. If doubts remain, just take another look at Figure 2.

The OS is revered worldwide. However, it should always be remembered that its maps have been subject to change and

addition for over 120 years and therefore are not intended to be relied on as pristine and comprehensive. If, (putting the enormous cost aside) the whole of the UK were to be mapped from scratch, the picture would be far more reliable.

However, by comparing each edition they still provide a good guide to the history and development of an area… just keep that scale rule in your pocket and do not click on the ‘dimension’ icon on the digital version. C

More information>RICS Boundaries: Procedures for boundary identification, demarcation and dispute resolution, 3rd edition guidance note http://bit.ly/1AWbT8M

RICS Measured surveys of land, buildings and utilities, 3rd edition guidance note http//bit.ly/1ywp:9tm5

Ordnance Survey (OS) maps began to be published in earnest in the late 1800s and since then have been constantly revised and augmented. Starting off

as County Series, they were then joined together in the National Grid to form the maps we take for granted today. The latest incarnation is in a digital format that can be downloaded from the web.

But as a land surveyor who has worked with (and occasionally for) the OS for the past 48 years, I can say that whether one is using a scale rule on a paper version or obtaining a dimension from a digital version OS maps do have limitations.

In broad terms, any measurement taken on an OS map should be accurate (when checked on the ground) to within ±2.2m at 1:2,500 (rural) scale or ±1m at 1:1,250 (urban) scale. They may, of course, be more accurate, but there is no guarantee that just because some features in a particular area are spot on then others will be too. That is why it is futile to ‘click-on’ a dimension on an urban OS digital map and record, say, 8.321m (as some surveyors still do) when, in fact, that dimension could be anywhere between 7.3m and 9.3m on the ground and still be within the OS stated limitation.

A further matter to keep in mind is that OS land surveyors generally do not show features that are within 2m of each other at 1:2,500 scale or 1m at 1:1,250 scale. It is always down to the discretion of the land surveyor, but that is the general rule.

Line typesOS shows two types of line on its maps; solid and dashed black lines. Solid lines indicate that a feature is more than 1ft (0.3m) high and dashed lines that a feature is less than 1ft (0.3m) high. Land surveyors often say: “If you have to climb over it – it’s a solid line; if you trip over it – it’s a dashed line”.



Images © David Powell

Figure 1 Figure 2


L E G A L


Vivien King considers a recent noise nuisance case

And so, we waitSeveral London councils expressed concerns over the excavation of large basements falling within the rules surrounding permitted development. This led to the London Assembly calling on Mayor Boris Johnson to include restraints on ‘excessive subterranean development’ within the 2015 London Plan (published March 2015), although it seems to no effect.

The Party Wall etc. Act 1996 works well in England and Wales but does not apply in Scotland or Northern Ireland. Proposed changes to Scottish property law might change this, but no mention appears in the Land Reform (Scotland) Bill 2015.

Noise nuisanceA recent decision from the Supreme Court (which at present is the ultimate appeal court for all civil cases across the UK) has effectively changed the law governing whether or not judges will order payment of damages in lieu of granting an injunction in nuisance actions.

Coventry & Others v Lawrence and Another [2014] UKSC 13 concerns nuisance by noise caused to owners of a bungalow by the owners of a neighbouring speedway and motor racing circuit. Interestingly, the case hit the headlines within the rights to

light debate, as Paul Smith discusses in his article. It is, however, of more general interest and applicable to all nuisances.

A court can be asked to stop or prevent a nuisance by granting an injunction. However, since the passing of Lord Cairns’ Act in 1858, the courts have had the power to award damages instead. AL Smith LJ, in his Court of Appeal judgment in Shelfer v City of London Electric Lighting Co [1895] 1 Ch 287, expressed concerns about a court effectively sanctioning a party committing a wrongful act by purchasing their neighbour’s legal rights (through payment of a sum in damages) against the neighbour’s wishes.

He stated a successful claimant should, prima facie, be entitled to an injunction. If that rule should be relaxed, it should be so only if:1. the injury to the plaintiff’s legal rights is small2. it is capable of being estimated in money3. it can be adequately compensated by a small money payment4. the case is one which it would be oppressive to the defendant to grant an injunction.

This Shelfer rule was widely applied – even followed “slavishly”, according to

When looking at neighbourly matters e.g. rights to light, party walls and the widest of legal topics, nuisance and trespass, while these topics are newsworthy, many appear parked in legal sidelines.

On rights to light, we await the outcome of the Law Commission’s final report and draft Bill published on 4 December 2014 (see p10). Developers have for years looked for a change in the law such as the commissioners propose, but it seems unlikely that Parliamentary time will be found to discuss the Bill.

The dramatic rise in the number of developments, particularly in London, may not be indicative to MPs of a noteworthy problem, but we wait to see.

Subterranean development also continues to give rise to complaints (see p8) but attempts to introduce the Permitted Development (Basements) Bill 2013-14 were thwarted and it failed to complete passage through Parliament.

Vivien King is a consultant to Malcolm Hollis [email protected]

Lord Sumption in Coventry v Lawrence. Lord Neuberger, in the same case, removed the Shelfer shackles and said the outcome of a case should depend on all the relevant evidence and arguments.

However, Lord Neuberger continued: “We are at risk of introducing a degree of uncertainty into the law. The nature of the issue, whether to award damages in lieu of an injunction, is such that a degree of uncertainty is inevitable, but that does not alter the fact that it should be kept to a reasonable minimum.

Given that we are changing the practice of the courts, it is inevitable that, in so far as there can be clearer or more precise principles, they will have to be worked out in the way familiar to the common law, namely on a case-by- case basis.”

So, guess what? We wait for those cases to be heard. C


A court can be asked to stop or prevent a nuisance by granting an injunction

mailto:[email protected]


F LO O D I N G RICS BUILDING SURVEYING JOURNAL

Glass forperiod windows

The London Crown Glass Company specialises in providing authentic glass for the windows of period buildings.

This glass, handblown using the traditional techniques of the glass blowers, is specified by The National Trust,

the Crown Estates and indeed many others involved in the conservation of Britain’s heritage.

Specify authentic period glass for your restoration projects.

THE LONDON CROWN GLASS COMPANY21 Harpsden Road, Henley-on-Thames, Oxfordshire RG9 1EE

Tel 01491 413227 Fax 01491 413228 www.londoncrownglass.co.uk

Jessica Lamond is an Associate Professor in the Centre for Floods, Communities and Resilience at the University of the West of [email protected] Proverbs is Associate Dean at Birmingham University and Professor in the Centre for Floods, Communities and Resilience at the University of the West of [email protected] Rotimi Joseph is a Senior Quantity Surveyor at Cunningham [email protected]

Surveyors’ softer skills are vitally important in flood repair, as Jessica Lamond, David Proverbs and Rotimi Joseph report in their recent research

After the flood

examples of satisfied customers that felt they were informed and involved – as much as they wanted to be – in the reinstatement.

New research is linking this together to explore specific features of the process that can reduce the chance of long-term psycho-social damage. The study is based on a survey of households that were flooded in 2007 across England. It revealed that more than five years after the flood the majority of households still experienced anxiety when it rained and a significant minority reported ongoing high to severe impact on mental health.

RelocationOne major contributing factor to the more severe impacts is the need to be relocated for long periods while repairs are carried out. There could be a lot of reasons why relocation causes mental distress, for example loss of social networks and the extra stress of reorganising everyday activities with longer travelling times. Another reason could be the feeling of powerlessness because their home is made worse before it is made better.

This feeling can be exacerbated by dealing with faceless insurance companies that take a standard approach to repairs and do not take individual needs into account. The involvement of a surveyor, particularly a local surveyor, with experience of listening to their clients and the competence to specify the least disruptive reinstatement process can play a key role.

Another factor linked to lower incidence of mental health deterioration is taking action to reduce future flood risk. Behind this are the reduced feelings of helplessness and increased peace of mind brought about by lower perceived

risk. This offers another opportunity for the competencies of surveyors to make a difference. It might be their skill in specifying a repair (at minimal if any extra cost) that will make the home more resilient. It might be by recommending protection products and advising on the options for keeping water out.

Whatever it is, it will need to be in tune with the abilities of the household, taking heed of the characteristics of the property. Experienced surveyors are well equipped to lead in this process even if they might need a little up-skilling on the latest technology.

There are plenty of resources available for surveyors without the specialist knowledge of flood reinstatement or property level flood resilience technology. Two British standards are being drafted, one for the process of damage reinstatement (BS 85500), the other for standards for flood resilient materials (BS 12999). Guidance on the drying process and reinstatement process is widely available.

However, the real advantage of involving a qualified and experienced surveyor is to ensure that building characteristics and clients’ needs are central to the decisions and households are treated with respect and sensitivity at a time of great distress. C

More information>To read the full report, An exploration of factors affecting the long term psychological impact and deterioration of mental health in flooded households, visit bit.ly/1ImAWu1

W e are used to seeing the communities affected by flooding through the lens of the media. Often they are in shock or angry, upset and

frustrated and do not know where to turn. That is where the professional knowledge and softer people management skills of the experienced surveyor can make a great difference. We cannot stop people being flooded completely but we can help to minimise the psycho-social impacts and speed up recovery.

Immediately after a flood, in the short term most people experience some negative impacts on their mental health or wellbeing. Research shows that the worst floods produce the most severe symptoms, devastating enough in some people to be diagnosed as post-traumatic stress disorder or depression. A few may never fully recover. Research conducted in the UK and elsewhere has identified mental health issues to be just as important as physical problems following floods.

Reinstatement processWe have also known for a long time that the process of reinstatement can have a big impact on the experience of flood-affected households.

Research on the reinstatement process shows that insured households expect a good service from their building professionals and this interface is more important than the interaction with the underwriting company. Diaries kept by flooded households describe in detail the frustration and stress associated with delays and indecision.

It does not have to be such a traumatic experience. Indeed, there are many


http://bit.ly/1ImAWu1


T E C H N O LO G Y


Michael Fairhurst is Sales Director at [email protected]

Pump it up

Ground source heat pumps (GSHP) take naturally occurring heat in the ground and concentrate it into a useful source of energy for domestic

dwellings or commercial properties. The heat generated can supply radiators and underfloor heating or be stored as hot water.

The system comprises a ground loop of pipes laid vertically in a borehole (typically between 15m-100m deep), or horizontally in shallow trenches at a depth of 1m.

A non-toxic mixture of water and anti-freeze is pumped through the loop, absorbing naturally occurring heat in the ground, which is extracted, compressed to a higher temperature and delivered to the heating system or hot water cylinder. The amount of energy the GSHP provides

compared to the electricity used to power it defines its efficiency. This is known as the coefficient of performance, and for well-balanced systems it can be as high as 4:1.

Not every property will meet the requirements for a GSHP. Consideration should be given to which type of heat pump is best suited to an individual property and whether the system is correctly sized for the heating needs. A sizeable amount of land or a deep borehole is required to house the ground loop and to allow access for digging machinery. Planning permission will be required.

The work should be carried out by Microgeneration Certification Scheme-approved installers to ensure costly mistakes are avoided and to allow qualification for renewable heat incentive (RHI) payments.

Heating controls should be simple to understand and use to ensure the system operates as efficiently as possible. It is worth considering additional energy efficiency measures prior to installing a GSHP, such as loft and cavity wall insulation. This will ensure that the heat is retained in the building and not wasted.

System benefitsFinancial incentives for installation are available from government-backed grants.

The Renewable Heat Premium Payment currently provides a grant of £1,250 toward the cost of a domestic GSHP, while the RHI will provide ongoing quarterly payments over a period of seven years for heat produced. For an average four-bedroom detached home RHI payments are estimated between £2,325 and £3,690 a year. Subsidies differ for non-domestic RHI and are payable for a longer period of 20 years.

For every unit of grid-supplied electricity used, a GSHP will provide between two and four units of heat. With only a third of the energy required to produce similar amounts of heat using a gas or oil boiler, a GSHP still proves to be an efficient method of heating a building. For customers, it offers protection from rising energy prices; reduces their carbon footprint and provides considerable financial savings. C

More information>For details of ground source heat pumps and other micro-generation technologies, visit www.ghesolar.co.uk

Michael Fairhurst discusses how ground source heat pumps work and how to decide whether they are worth installing in your home or business

Related competencies include Sustainability

Generating returns

Berkshire-based chartered surveyors Powis Hughes is committed to ensuring that the firm runs its operations efficiently and sustainably. In 2013 it replaced its oil-fired heating system with a more reliable 20kW ground-sourced heat pump, installed in a large field adjacent to its offices by GHE Solar.

The change was the latest in a series of microgeneration systems following the installation of a 6kW wind turbine in 2010 and a 4kWp solar array in 2012. Both of these technologies have performed well since installation and are providing returns of 10% and 23% respectively.

In the two years since it was installed, the heat pump has generated 40,500kWh of heat and attracts annual RHI payments of around £1,650. Powis Hughes has saved in oil fuel purchases, while consuming less than 10,000kWh of electricity. Over 20 years, the payments will amount to more than £33,000.

Image © Powis Hughes


A DV E RT I S I N G RICS BUILDING SURVEYING JOURNAL

Glass forperiod windows

The London Crown Glass Company specialises in providing authentic glass for the windows of period buildings.

This glass, handblown using the traditional techniques of the glass blowers, is specified by The National Trust,

the Crown Estates and indeed many others involved in the conservation of Britain’s heritage.

Specify authentic period glass for your restoration projects.

THE LONDON CROWN GLASS COMPANY21 Harpsden Road, Henley-on-Thames, Oxfordshire RG9 1EE

Tel 01491 413227 Fax 01491 413228 www.londoncrownglass.co.uk

For more information please call us on01384 636365 or visit our website atwww.stormwindows.co.uk

Storm Windows is the leading UK supplier of bespoke secondary

glazing for historic and listed buildings.

Storm’s unique system of slim-linesecondary glazing is individuallysurveyed and has none of the usualwooden sub-frames. This bespokeapproach enables us to manufacturea huge range of different shapesincluding out of square, Norman andGothic Arches as well as cylindricalturrets and curved glass sashes.

Our window systems are specifiedand used regularly by organisationssuch as the National Trust due tothe superior quality of construction,discreet appearance and virtuallyperfect fit.

Storm 127.5x84.5 AW 06/03/2013 16:59 Page 1


Book your place online today: rics.org/buildsurvscotland

RICS Building Surveying Conference – Scotland12 Nov 2015 Hampden Park, Glasgow, G42 9BA2015 is set to see a number of changes impacting the Building Surveying profession in Scotland. In a time-tight world it is often challenging for a busy surveyor to keep up-to-date with all of these developments.

Our annual Building Surveying Conference, Scotland will provide a complete guide to all the legal updates you need to know and the impact these will have on your role.

In addition the conference will provide expert advice and guidance on building pathology issues, modern commercial building defects, BIM and historic building conservation.

Highlights include: • Dedicated technical building pathology sessions designed to enhance your

expertise in reporting and identifying defects in modern commercial buildings, roofing and lead work

• Hear from Historic Scotland on the impact of climate change on historic buildings and how you must take into account the changing weather patterns.



T R A I N I N G

Looking back at his early career, Ian Bleasdale believes that his practical route to becoming a surveyor provided a sound foundation

A different world

Supposedly unfit to do sport at school, I was one of a group taken on walks by an inspirational master where we studied nature, ecology, geology and archaeology – admittedly in a somewhat superficial way. He did, however, teach us the rudiments of surveying. We painted garden canes with stripes to use as ranging rods and from somewhere he procured a 60ft chain and a linen tape. Thus we

surveyed the foundations of an old church and the churchyard. I left school at 15 in 1948, and having developed my interest

in surveying at college, it seemed an obvious goal. I managed to get an interview at the Property Department of the District Bank in Manchester. They seemed interested but their policy was to only take on trainees who had completed the first exam of RICS.

Articled pupilSo what to do until I reached that stage? In a town the size of Knutsford, anyone in ‘trade’ knew practically everyone else of any importance, so the next thing was an interview with the Urban District Council (UDC) Surveyor, Reginald Butler. Would he be interested in taking on an articled pupil? Yes he would, for the appropriate fee.

Thus, I worked in the UDC offices as an unpaid Junior Engineering Assistant under the tutelage of Jim Penney. First I had to learn how to draw on a drawing board with a T square and set square, and how to letter, something I was never terribly good at so it was a good thing that stencils came into fashion.

As well as helping to design houses, I was also much involved in building roads and sewers and spent a lot of time on site surveying, setting out and supervising construction. I also carried out building byelaw inspections and drain testing, along with mapping the town’s existing sewers, searching and digging for lost manhole covers. I even had to help unload ‘PC items’ – fireplaces, bathroom fittings and so on that the council bought to supply the housing contractors.

We also surveyed and set-out plots for self-build; something now becoming fashionable.

I became deeply involved in council housing repairs and maintenance, involving much interaction with tenants. My experiences in my dad’s engineering workshop and a friend’s joinery workshop were invaluable.

From this I went on to work with other council buildings, most of which seemed to be suffering from dry rot Serpula lacrymans,

which was endemic at the time. The library and Thorneyholme Mansion and its lodges were especially interesting.

I attended a day release and evening class, initially at Liverpool, supplemented with a correspondence course. I had to take one part of the RICS Preliminary Examination because I was one subject short in my school certificate. I took geology and passed with good marks.

After that, the targets were the 1st, the Intermediate and eventually the Finals. I studied some subjects at Stoke-on-Trent Technical College, some at Liverpool College of Commerce and later at Liverpool College of Building (now all parts of local universities), on day and evening release. I never considered myself good at learning (except for practical things such as building construction) but I did seem to be good at passing exams.

I finished my articles in due course, staying on for six months with Knutsford UDC as a Junior Engineering Assistant for the princely sum of £200 per annum. I then climbed up the scale with various other local authorities.

This training path was, of course, an apprenticeship under another name and I found the practical experience it gave me a tremendous help in later years. This was brought home to me when, in mid-career, I went back to college to get a planning qualification. My fellow students struck me as being sadly unworldly, despite the university degrees they held. Even some of the lecturers knew little of real practice. I would certainly endorse it as the best possible route. C

Ian Bleasdale is a Chartered [email protected]

Image © Ian Bleasdale

k Surveying: the hard way


A degree of preparation?

Stewart Russell is a Graduate Surveyor, Building Consultancy at [email protected]

Stewart Russell examines how effectively building surveying degrees equip graduates for the industry they are joining

APC candidates or had passed in the preceding 12 months; 20% were conversion students and 80% from the BSc route.

The results suggested that there are opportunities to improve the extent to which all degrees prepare candidates for their professional training, and included:

b MSc graduates rated their attainment of practical surveying skills and technical knowledge less favourably relative to their peers, compared to BSc students.

b 43% of the APC assessors group agreed that both routes are equally effective, and the remaining 60% had a neutral opinion on the matter.

b Despite limitations to the MSc, factors such as personal motivation were generally seen by assessors as more significant than the route a candidate takes.

b 68% of graduate respondents were positively motivated by their teaching staff, although only half of all the graduates surveyed felt that their degree provided them with a sound understanding of what working as a surveyor involves.

b More than 80% of respondents in both groups agreed that degree effectiveness is undermined without relevant work experience, with more than half of the APC assessors group also agreeing that such experience is more important for MSc candidates. These sentiments were mirrored in free text responses, with the top response categories from both groups being calls for integrating work experience, more practical content, and better alignment to the APC.

Curriculum contentSo, if there is room for improvement, then what might that involve? Historically, RICS took greater control over curriculum content for its accredited courses than is currently the case and perhaps this is one avenue worth exploring. Without being too radical, certainly such a mechanism could be used to address most, if not all, of the potential issues that were alluded to by the results of this project.

Policy here could influence course content, but also delivery – for example, by mandating minimum work placements at RICS-registered firms for both undergraduate and conversion routes. A carefully designed policy that encourages active collaboration might also strengthen relationships between universities and employers, with potential benefits for all involved.

But what appetite might there be for change? Recently, RICS launched a six-month distance learning Certificate in Building Surveying, which “outlines the core principles of building surveying, taking a practical approach to explain the day-to-day procedures and processes carried out by professionals”.

This is exactly the sort of thing a student might expect to learn from a building surveying degree. First in the list of those deemed suitable for the course are Building Surveying BSc and MSc graduates. Food for thought? C

More information>The research was conducted in October-December 2014. For a copy of The effectiveness of undergraduate and non-cognate building surveying higher education, visit http://bit.ly/1HX0KPa

As part of my MSc conversion degree, I researched views on how effectively building surveying courses prepare candidates to

embark on their Assessment of Professional Competence (APC). I wanted to find out how differently the non-cognate route was perceived compared to a regular BSc. Background reading revealed some scepticism regarding the MSc, but there was no evidence that it has been any less effective.

Clearly, the breadth and depth of a one-year course is less than a three-year curriculum, but to what extent is preparedness for APC training a function of degree path anyway, and what makes any building surveying degree effective?

For the project I focused on three themes: how well does a degree enable students to understand the day-to-day work of a building surveyor; how well does it equip students with basic knowledge and key generic and technical skills; and what is current thinking regarding effective education and do candidates feel it is being applied?

Study resultsWith RICS support, I targeted recent graduates and APC assessors. Respondents included 125 chartered building surveyors, all involved in the recruitment and training of graduates, with 87% being APC assessors, supervisors or counsellors. The remaining 280 (graduate) respondents were either current building surveying

E D U C AT I O N RICS BUILDING SURVEYING JOURNAL

Historically, RICS took greater control over curriculum content for its accredited courses than is currently the case

“


Joining up for a revolution

A revolution is taking place in the land, property and construction professions, which are seen by many as made up of an

aging, declining membership, out of touch with the modern world.

The struggle is not just confined to surveying. According to the Edge Commission’s Collaboration for change report on the future of the UK's design and construction industries, detractors see a tendency towards protectionism, resistance to change, and the preservation of hierarchies within the professions (http://bit.ly/1Ely4Hd).

RICS and other bodies have worked hard to reinvigorate the sector, but there is still much that can and should be done. More than 50% of RICS members are over the age of 50, and only 13% of the membership is female (15% in the UK). The organisation has a strong focus on all aspects of diversity and inclusion, especially attracting and retaining women in the profession.

The built environment profession clearly lags behind other industries on gender diversity. To increase the number of women in leadership roles and the pipeline of future female leaders, the key is to see diversity as a business investment, not a problem to be solved.

The RICS Futures report looked at the implications of the rapid changes in the land and built environment sector up to 2030. It suggested ways we could improve the resilience and relevance of our profession. Winning the war for talent

Diversity is a strategy, not an issue, says Amanda Clack

was a key area that emerged as essential to our future (www.rics.org/futures).

Each year, the property and construction profession welcomes and loses more than 400,000 employees. If we do not address diversity and inclusion as part of business strategies, we miss over 50% of potential employees. This creates a skills gap significant enough to threaten the future viability of our industry. In construction, without more talent in the industry, Britain will stop building by 2019.

However, the business case for diversity goes deeper than this broad skills gap. The built environment industry is a global profession. National geographical boundaries do not exist in today’s business world. The challenge is to reflect the diversity of our clients in our own workforces. The outcomes of doing so are tangible and proven delivering enhanced profits, increased returns for investors, and greater productivity.

As a profession, we continue to make fundamental mistakes. According to the RICS and Macdonald & Company Rewards and Attitudes Survey 2015, women frequently earn less for doing the same job as their male counterpart (http://bit.ly/1FYo1ZP).

Company policies can make it difficult for women to return to work after having children, and unconscious bias continues to plague our industry.

Diversity campaignAttracting a diverse workforce is the focus of the RICS campaign, Surveying the Future, which aims to demonstrate

the breadth and range of careers in the industry. To support employers in attracting and retaining a more varied talent pool to run the businesses of the future, we need a coordinated approach, and we want to lead by example.

To remain competitive and relevant in the future, it makes sense for businesses to reflect the diversity of their clients and the societies in which they operate. A Ferguson Partners study of 160 Real Estate Investment Trusts found that those with at least one woman on their board for more than three years on average produced annual shareholder growth rates 2.6 percentage points higher than their peers. This increased to 3.6 percentage points over five years (http://bit.ly/1L2VBlL).

However, too few young people understand what surveyors do. Chartered surveyors themselves would be forgiven for not comprehending the full breadth of the profession, which covers more than 270 different roles across 17 specialisms. They are involved in projects as diverse as building Olympic stadiums, working with the


D I V E R S I T Y

Retaining a diverse workforceCreating a diverse industry is not just about encouraging different people into the profession; retaining talented individuals is a key challenge, and an essential part of business strategy.

An ageing workforce and aspirations of work/life balance, especially by women who choose to have children and do not wish to return to long and demanding work hours, are affecting employee retention rates. Flexible working policies are frequently cited as a way to encourage women to return to work. However, organisations also need to truly support and encourage this flexibility, making it a part of corporate business strategy.

A recent report from Ernst & Young (EY) found a vacuum in the female leadership pipeline in the property industry. Although women featured strongly in entry level and administrative positions, the numbers dropped off dramatically further up the ladder. The reasons for this were wide ranging, including a lack of flexible working, detrimental company culture, and a lack of leadership on the issue (http://bit.ly/1B80GcE).

One way RICS is hoping to drive a culture change in the industry is through our Inclusive Employer Quality Mark. This was launched in June at our inaugural Diversity and Inclusion Conference.

The initiative is asking organisations to sign up to six main principles, covering leadership and vision, recruitment, staff development, staff retention,


lDelegates at the RICS Diversity and Inclusion Conference, where the Inclusive Employer Quality Mark was launched

Disasters Emergency Committee, and aiding the United Nations to ensure global food security.

Through initiatives such as Class of Your Own, in partnership with Design Engineer Construct!, RICS is helping to educate young people about the different roles available within the built environment (http://bit.ly/KvoQVm).

As RICS Chief Executive Sean Tompkins has said: “Too many people think this is a ‘closed industry’, which isn’t the case.” To move beyond this reputation, role models are vital. The RICS diversity campaign is working hard to get more women into the public eye. By highlighting the pool of talented professionals who are shaping the world we live in, we hope to attract more women to careers in the sector.

RICS is uniquely placed to establish partnerships linking employers, professional bodies and educators. By doing so, we can better understand supply and demand for talent in our sector and the type of skills sought out by firms.

Amanda Clack is RICS President [email protected]

staff engagement, and continuous improvement. The Mark aims to make diversity a key part of business strategy.

Just as RICS is leading by example with the Quality Mark, so must chief executives (both male and female) in real estate organisations.

It is only with this leadership that any barriers to diversity can be addressed. Chief executives are in a unique position to sell the gender diversity message as well as linking it to company performance. If they are convinced by the research supporting the business case, and are truly motivated to create a diverse workforce, change can accelerate markedly.

Given the shift in workplace demographics, generational, religious, genetic and sexual orientation differences are attributes. They contribute to an organisation’s wide appeal within its community and throughout the global marketplace.

A diverse workforce must become a driver of business success, economic growth and investment returns. The key external pressures of reputation, investor attitudes, and skills shortages are relevant to all, making a coordinated approach across the industry vital. Diversity is a strategy, not an issue. It is a competitive advantage, and this can only be fully realised by breaking down age old barriers across the industry. C

Image © Shutterstock



I N S O LV E N C Y


Tim Phipps reports on the use of performance bonds as a means of limiting financial loss in the event of contractor insolvency

Default position

In a heated construction market with a strong outlook, it is perhaps surprising that there have been recent reports of contractor insolvency. It could therefore be timely to take a look at the key points to consider when deciding on provisions to mitigate the financial impact of such a default.

Performance bonds (PBs) and parent company guarantees (PCGs) are the most common provisions used to

offer security to the employer, beyond the contract itself. However, it is important to appreciate that the two are fundamentally different.

A PCG might be sought where the contracting organisation is trading within a group structure, which is often the case where a parent holding company seeks to limit their risk exposure. Through a PCG, which is often provided at nil cost, the parent company effectively underwrites the obligations of the contractor and is liable to ‘step-in’ following default.

Liability is typically back-to-back with the construction contract and therefore extends beyond completion where a claim could be brought within the limitation period applicable to the contract. There is no financial limit to a PCG, although of course, its worth is wholly dependent on the nature and financial standing of the parent company. If a parent company is not in a position to effectively step into the contractor’s shoes and fulfil its obligations under the building contract, then the benefit to be derived through a PCG will be limited. This is important, because in certain circumstances, the ultimate holding company may have been set up for purposes other than contracting. Contractors are often resistant to offering such a guarantee because they represent increased risk to the holding company.

Performance bonds can typically be categorised as being either, ‘on-demand’ or ‘default’, with the latter being the most common, primarily due to the relatively high cost and reluctance of organisations to provide on-demand bonds. A default bond is usually provided by a bonding company or financial institution and is designed to provide the employer with financial redress in the event of a contractor default.

The standard limit of indemnity is generally 10% of the contract sum, although this can be increased for a premium. It is usual for the contractor to recover the cost of the PB through the contract, with liability limited not only to the financial cap but

also an expiry date, which is often coterminous with practical completion or expiry of the defects rectification period.

To successfully claim against a default bond, there must be a demonstrable breach of contractor’s obligation under the contract and financial loss as a result. Insolvency is not always covered, so it is important to check the drafting of the bond carefully at the outset, because this will usually represent one of the greatest financial risks.

Most experienced clients will be in a position to give clear instruction on their bond requirements. Others will look to the professional team or legal adviser (often jointly) for guidance on a project-by-project basis.

Default riskMarket conditions, project context and employer attitude to risk are among the many contributing factors for consideration. A heated market place with fewer tendering contractors,

increased competition and rising subcontract costs will increase the risk of main contractor default, as they

contend with volatility in subcontract pricing and stretched supply chains.

In terms of project context, the procurement method, complexity of works, value, timescales, contract conditions, experience and standing of the preferred contractor are all factors that will affect the likelihood of default. Similarly, the employer’s attitude

to risk, financial resilience and exposure to consequential loss will also need to be taken

into consideration. If faced with a defaulting contractor and potential

claim against a bond, check that the nature of the default is covered and that the claims procedure is understood. Legal advice should be sought and while PBs provide an important level of limited financial protection, they should not be relied on to cover the full extent of potential financial loss to an employer.

The importance of thorough due diligence during contractor selection cannot be overemphasised, because this may represent the difference between project failure and success. C

Tim Phipps is a Technical Partner at Tuffin Ferraby Taylor [email protected]

Image © Thinkstock

Related competencies include Contract administration, Contract practice



Letter of the law

Julia Dixon completes her look behind the A to Z of common acronyms in planning and explains how recent changes are being applied in England

P L A N N I N G RICS BUILDING SURVEYING JOURNAL

Julia Dixon is a Senior Associate at Squire Patton [email protected]

JRWhat is it? Judicial review is a legal challenge against the decision of a public body, including decisions of local planning authorities (LPAs). It differs from a statutory challenge to a decision of the Secretary of State or an Inspector on a planning appeal under section 288 Town and Country Planning Act 1990.

The JR applicant must have “sufficient interest” in the outcome of the claim. The planning claim form must be filed with the High Court no later than six weeks after the date on which the ground(s) to make the claim first arose.

A JR is not a reconsideration of the planning merits of the case. The court is concerned solely with the question of whether the LPA has acted lawfully in making its decision to grant planning permission. The court will consider whether there was any element of illegality, irrationality or procedural unfairness in the process.

In the two-stage process, permission must first be obtained from the court before proceeding to the substantive JR application. If the claim is successful, it usually results in the planning permission being quashed and the application being remitted back to the decision-maker for redetermination. Recent changes: Changes arose in April 2015 as a result of the Criminal Justice and Courts Act 2015. Subject to an exceptional public interest test, the court may/must consider whether it appears highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. At the permission stage, the court may consider the above question (and must if the defendant asks it to). If the answer is “yes” then the court must refuse to grant leave. At the substantive JR stage, relief must be refused if the answer to the question is “yes”.

Related competencies include Contract administration, Contract practice

LDOWhat is it? A local development order is essentially a tool to allow LPAs to grant additional permitted development rights. The LPA grants planning permission (via the LDO) for specific types of development within a specified area. The LDO can be permanent or time limited and can impose planning conditions.Recent changes: The Queen’s Speech 2015 set out the government’s target of getting LDOs in place on 90% of suitable brownfield sites by 2020.

NPSWhat is it? National policy statements are produced by the government and set out its objectives for the development of nationally significant infrastructure projects (NSIPs)in a particular sector. The documents are subject to public consultation and parliamentary scrutiny before they are designated. They provide the framework within which decisions regarding development consent orders for NSIPs are made. They are also a material consideration in the determination of planning applications. There are 12 designated or proposed NPSs, grouped under energy, transport, water, waste water and waste.

NPPFWhat is it? The National Planning Policy Framework was published on 27 March 2012. It sets out the government’s planning policies for England and how these are expected to be applied. Statute dictates that applications for planning permission must be determined in accordance with the development plan unless material considerations indicate otherwise. The NPPF must be taken into account in the

preparation of Local and Neighbourhood Plans and is a material consideration in planning decisions. Recent changes: A parliamentary review of the NPPF took place in 2015. There are no current plans to revise the document.

PPGWhat is it? The online Planning Practice Guidance, issued on 6 March 2014 consolidated 7,000 pages of guidance. The 47 topic areas, listed in alphabetical order, are constantly updated including advertisements, making an application and when is permission required. Recent changes: Changes are regularly made to this online guidance.

TPOWhat is it? A Tree Preservation Order can be made by a local planning authority in England on the grounds that it appears to be “expedient in the interests of amenity to make provision for the preservation of trees or woodlands in their area” (section 198 Town and Country Planning Act 1990). A TPO protects a tree, a group of trees or a woodland and prohibits work (lopping, topping, root cutting, or felling) being carried out without the prior written consent of the LPA. The consent can be subject to conditions, and there are some exceptions, such as if the works are required to implement a full planning permission.

The first article appeared in Building Surveying Journal July/August, p20


L E G A L



Bad timing

Just as the secret of good comedy is perfect timing, it is also critical concerning matters of contract law. Two recent cases, although very different as to issue and facts, demonstrate this very clearly.

In the first, Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc [2015] 1 WLR 2961, the main issue

concerned the limitation period for challenging an adjudicator’s decision. The dispute related to allegations as to the inadequacy of an asbestos survey provided to a developer in relation to blocks of maisonettes it was redeveloping. The survey was completed in April 2004 and the developer referred the matter to adjudication, leading to an award being made in July 2009 by way of a significant payment being due from the contractor. The contractor paid the sums awarded in August 2009.

Then in February 2012, more than six years after the allegedly negligent survey but less than six years after making the payment due under the award, the contractor went to court to seek to overturn the adjudicators’ decision and recover payment. It argued that the contract had an implied term to have any adjudicators’ decision finally determined by legal proceedings and that it had six years from the date of payment to enforce its contractual right. It also sought to argue that the limitation period for any counterclaim to be brought by the developer was time expired.

Construction Act legislationThe matter went to the Supreme Court, and it was found that the contract did contain an implied term pleaded based on the Construction Act legislation for the paying party i.e. the contractor did have six years from the date of payment to seek final determination recovering overpayment.

However, because the developer had not pursued any claim for any further balance over and above that awarded in the adjudication, it could not pursue any additional payment because it had the opportunity to raise such issues within its own six-year limitation period.

While clearly a useful case to determine when time starts to run for a party to challenge an adjudicator’s award, it appears to be an unusual set of circumstances when a party had taken so long to take that route. However, it is a warning

to the unwary to be careful of expiry of limitation periods. The trigger for the commencement of such periods may be different even under the same contract, depending on the nature and timing of the breach or the timing of an adjudication award.

Pay less noticesThe second case revisits the regular problem area concerning pay less notices and contractual and statutory payment regimes under construction contracts.

In the case of Leeds City Council v Waco UK Ltd [2015] EWHC 1400 (TCC), there was a dispute concerning the addition of some modular classrooms for a primary school in Leeds. The parties entered into a JCT Design and Build Contract, 2005 Edition, Revision 2 2009 as amended, which contained detailed payment provisions.

As the project progressed, interim payment applications were made – albeit not always in strict accordance with the contract terms. After practical completion on 28 March 2013, further interim applications were made, one of which was not paid. The contractor took the matter to adjudication and was awarded the sum applied for, approximately £485,000. However, the award was challenged on the basis that the interim application had been made prematurely.

There are a number of issues arising out of this case, but in relation to the nature of the application it was found that it was made six days early, thus making it invalid, and the adjudicator's decision could not stand.

Payment provisions and pay less notices are a minefield and timing is absolutely critical both as to the application in compliance with the contract and the various notices required if such application is being challenged, particularly the pay less notice. Get your timings wrong at your peril. C

Laurence Cobb is Partner at law firm Taylor Wessing [email protected]

Laurence Cobb looks at two recent cases that illustrate the limits to contract claims

Payment provisions and pay less notices are a minefield



LegalWho pays for delay?

Q Our architect tells me the contractor is in delay, is not performing regularly and diligently and does not

have enough resources. There is even a question mark over their liquidity. Can we supplement the contractor’s resources with another contractor and charge them any additional costs we incur?

>Charles Blamire-Brown

A With excuses for sounding like a broken record, the employer's options will depend on the particular terms

of the contract. It is important to understand the contractor's obligations concerning performance of the works. You can then look at the employer's options under the contract in circumstances where these obligations are breached.

Under the JCT, there is an express obligation on the contractor to proceed regularly and diligently with the performance of its obligations. Compare this to the NEC where this is not clearly proscribed. On one view, the employer is relatively powerless in terms of the remedies available until the contractor fails to achieve the completion date and liquidated damages are capable of being levied. There are, however, a number of clauses that, read together, could impose such an obligation. For example, the contractor is required to work so that key dates as well as the completion date are met. Similarly, the contractor is required to show progress on each revised programme and how it plans to deal with any delays.

Possible remedies One option is for the employer to terminate. In so doing, the employer would generally be able to employ a replacement contractor to complete the outstanding works and look to recover the costs from the defaulting contractor.

Under the JCT, the failure of the contractor to proceed regularly and diligently with the performance of its obligations is a ground for termination. This is not, however, an automatic entitlement. The employer must give a notice specifying the default. If the contractor continues to default for 14 days from receipt of this notice, the employer can terminate (by notice on or within 21 days from the expiry of that 14-day period). The contract then permits the employer to engage other persons to complete the works and seek recovery of the costs from the contractor.

Under the NEC, there is no specific ground for failing to proceed regularly and diligently with its works. However, it is likely that a substantial failure to perform would be a ground for

Charles Blamire-Brown is a Partner at Pinsent Masons [email protected]

+info

Q&Atermination on the basis the contractor has substantially failed to comply with its obligations. Again, this is not automatic: the failure must be persisting for four weeks following the employer giving notice. The NEC, like the JCT, provides for a deduction to be made against any amounts owing to the contractor of the additional cost to the employer of completing the works.

An alternative is to terminate at law for a repudiatory breach. Such a remedy would be available if, among other things, the contractor has significantly failed to perform the contract. In such circumstances, the contract notice periods for termination and contractual remedies do not apply. However, in terms of the damages resulting from terminating on this basis, the employer is likely to be able to recover the cost of completion of works by other contractors.

A word of warningIn terminating, the onus will be on the employer to establish that the contractor is not proceeding regularly and diligently with its works notwithstanding any delays caused by employer risk events. This may involve a detailed programming exercise. To the extent the contractor can establish that the reasons for its non-performance lie at the employer's door and the employer terminates, the employer in turn will be in repudiatory breach entitling the contractor to recover its losses arising from this. When considering this option, it is therefore imperative that appropriate advice is sought, because the consequences for wrongful termination can potentially be severe.

Other than termination, the employer's options to supplement/replace a failing contractor are relatively limited. One option might be to consider descoping the works by issuing a variation/compensation event. However, in such circumstances, the contractor is likely to be entitled to be paid the profit it would have earned on this descoped work. In any event, the employer would not be able to recover the costs of the replacement contractor in completing these works.

There are also options under both JCT and NEC, which effectively enable the employer to engage replacement contractors to rectify defects post completion in circumstances where the contractor fails to so rectify and recover the costs of this from the contractor. However, this remedy is only available post completion. C

L E G A L H E L P L I N E

Related competencies include Legal, Contract administration



Gillian Birkby examines the insurance implications for principal designers under the CDM Regulations 2015

On the safe side

Concern has been expressed in the construction industry that the duties of a designer, and in particular a principal designer, under the CDM Regulations 2015 are not covered by professional indemnity insurance (PII), without which an individual or organisation cannot act in that role.

Let us start by going back to basics: PII covers claims of professional negligence against a designer for a breach of their appointment. Say, for example, some of the design detailing is difficult to construct, a worker uses a ladder in an inappropriate way and falls off; the architect seems to be partly to blame for the accident.

The injured worker has various options, including a claim directly against the architect, or alternatively against the client, who in turn can pass the claim on to the architect as a breach of an express or implied term in their appointment. If the

architect is sued directly by the injured worker, they can look to their third party liability insurance to cover the claim. If the claim comes from the client, as a negligent breach of the terms of the appointment, they will look to PII to cover it.

In addition, the architect could also be in breach of CDM 2015 because they have failed to design out the risk posed by the detailing so far as reasonably practicable, or failed to identify the significant residual risk. Compliance with CDM 2015 is often an implied duty under the terms of appointment.

Non-compliance is also a criminal offence, which is not covered by PII, because it is against public policy to allow anyone to insure against the risk of being fined for a criminal offence. However, sometimes the legal costs of defending a criminal action are covered by a PII policy.

Designer obligationsWhen CDM 1994 came into force, it introduced an obligation on designers to comply with certain basic requirements in relation to the health and safety implications of their designs, so far as reasonably practicable. This has been accepted by PII insurers as being part of a designer’s duties.

A claim of professional negligence under a PII policy will not therefore be rejected, for example, for breaching a clause in the appointment requiring the architect to comply with relevant legislation. The obligations on a designer under CDM 2015 are broadly similar to those under CDM 2007, so this raises no additional issues.

The role of the principal designer is, however, a new one, although not totally dissimilar to that of the former CDM coordinator. In the past, planning supervisors and then CDM coordinators took out PII in the normal way, and again this did not cause significant difficulties with insurers.

Principal designers are not in quite the same position, partly because

REGULATIONS

Covering risk

The new principal designer role is that of a “designer with control over the health and safety aspects of the project during the pre-construction phase”. It is fundamentally different from the more independent client appointed health and safety coordinator.

The number of duties on a principal designer has been reduced and certain CDM coordinator responsibilities have been spread among the client and contractor team. Those that remain are not absolute and are qualified by the term “so far as is reasonably practicable”, defined in the CDM guidance as “balancing the level of risk against the measures needed to control the risk in terms of money, time or trouble. However, you do not need to take action if it would be grossly disproportionate to the level of risk”.

This is a fundamentally important interpretation of the regulations, together with the need for the principal designer to identify “significant risks only” i.e. “not necessarily those that involve the greatest risks, but those

Paul Bussey is Architect and Principal Designer at Scott Brownrigg [email protected]

(including health risks) that are not likely to be obvious, are unusual , or likely to be difficult to manage effectively” by a principal contractor.

Taking these issues together, the duties of the principal designer are less onerous from a risk perspective. The residual CDM coordinator duties of pre-construction information collection and health and safety file preparation are relatively simple if carried out proportionately as intended.

Consequently, PII for principal designer duties is readily available from independent insurers and Royal Institute of British Architects providers. It is, however, important to obtain the level of insurance appropriate for the project, which should not be at variance with that of the designer role.




Related competencies include Legal, Health and safety

Gillian Birkby is Head of Construction at Fladgate [email protected]

their duties appear, on the face of it, to be more onerous. Sometimes, absolute health and safety obligations have been incorporated into the principal designer’s terms of appointment, which has caused concern because the qualification of “so far as is reasonably practicable”, which applies to these obligations, is not always included.

On the whole, though, most insurers have treated the role of principal designer as business as usual, and therefore it is covered by PII.

However, there seem to be more difficult situations, where design is not part of the core business of the prospective principal designer. They may, for instance, be a quantity surveyor, although the Health and Safety Executive does consider

them a designer for the purposes of CDM 2015.

It is important to recognise that under CDM 2015 the term ‘a designer’ is defined as someone who carries out design, and ‘design’ is widely defined. If the prospective principal designer is a designer, and also has the skills, knowledge and experience to fulfil that role, they should be able to obtain PII in the normal way.

It is also worth remembering that CDM 2015 does not require that either a designer or the principal designer hold PII. Almost all designers will wish to do so, but that is entirely separate from the obligations to have the necessary skills, knowledge and experience to carry out their roles under CDM 2015 for any particular project. b

Recruitment – Search & Selection – Market Intelligence – Benchmarking www.carriera.co.ukRecruitment – Search & Selection – Market Intelligence – BenchmarkingRecruitment – Search & Selection – Market Intelligence – BenchmarkingRecruitment – Search & Selection – Market Intelligence – Benchmarking www.carriera.co.ukwww.carriera.co.ukwww.carriera.co.uk

Specialists in Recruitment and Search & Selection Focused on the Construction and Property industry, here are a few of the key roles that we are working on.

If you are interested in one of these opportunities please contact Elliot Wright or Danny Score on 0203 817 0000 or [email protected]. If one of these roles does not meet your brief, please still get in touch as we have other opportunities available.

Senior Building Surveyor - London

• Job runner to workin various sectors

• Suitable for an associated designate position, where they would look to promote to Associate within a year of successful employment

• Medium sized team

• Competitive salary and bonus

Senior Building Surveyor/Project Manager - Surrey

• Involved with projects ranging in size

• A pro-active lead role co-ordinating teams and contractors

• The fi rm is partnership of Chartered surveyors,architects and engineers, providing a full interdisciplinary property consultancy service

Chartered Building Surveyor - City, London

• Private property company

• Over 400 Assets in Commercial and residential throughout the UK

• Workload will be project led, managing your own portfolio of projects

• Relaxed environment

• Excellent salary and signifi cant benefi ts

Senior Building Surveyor - Home based/London offi ce

• A Chartered Building Surveyor is sought to support the founding Directors of a highly successful independent Building Consultancy and enable the next stages of growth

• Varied role to delivera mixture of project and professional duties

• Very competitive salary

Party Wall Surveyors London

• Rapidly growing private practice, soon to be a market leader

• Diverse and varied workload

• This position is working for a dynamic, forward thinking practicewho are moving in the right direction and have very strong instructions


A P C


REwan Craig a speaker at the RICS annual ‘It’s Your APC’ conference, talks about the optional competency of risk management

A calculated risk

Ewan Craig is an APC assessor and the Course Leader for the BSc [Hons] in Building Surveying at the College of Estate [email protected]

Risk management is one of the optional competencies of the building surveying Assessment of Professional Competence (APC), which by its nature is more suited to those involved in managing risk on a regular basis such as work on complex construction projects. It is an important competency and draws on other competencies such as contract administration.

The levelsAt level 1Demonstrate your knowledge and understanding of the nature of risk and, in particular, of the risks associated with your area of business/practice.

At level 2Apply your knowledge to carry our risk assessments taking into account all relevant factors. Understand the application of the various methods and techniques used to measure risk.

At level 3Provide evidence of reasoned advice and implement systems to manage risk by competent management in relation to specific projects.

You should be familiar with the risk management issues in your submission documents and be ready to address questions on them and aspects related to them.

Questions Actual questions are based on the candidate’s experience, which should be at level 2 but could exceed this. Two examples are given below.

Could you please explain the process of identifying the risks for the refurbishment project X? This is aimed at level 2. The answer would explain pertinent issues on applying techniques to identify risks in the project.

I worked with the project programme risk manager to consider the various ways in which the project risks could be identified. It was agreed to use a three-stage process to bring the various stakeholders, knowledge together in an expedient way early in the project.

Firstly, I undertook a desktop study using information on similar previous projects together with a pro forma risk management checklist our practice has developed. From this, I prepared a risk identification form, which was used to gain initial feedback from the project stakeholders.

I then arranged a stakeholder workshop to identify and agree the risks. The workshop used cause/effect Ishikawa diagrams and discussion sessions

to clarify and develop the specific project risks. The resulting identified risks where distributed to the stakeholders. The process was methodical and expedient, bringing together the stakeholders to agree the risks, potential causes; grouping them together and highlighting areas where further information was required.

You contributed to the mitigation of risks in project Y. Could you please explain your contribution and how this aided the mitigation of the risks?This is aimed at level 2. The answer would show your application of risk management in mitigating the risks.

The initial risks had been prepared, including the potential impact and probability of that impact. These were based on various assumptions on the project from the stakeholders. I worked as part of a smaller group, reporting to the project programme risk manager, who looked at the risks specifically in design development

and considered ways to mitigate those risks. Different workshops covered other areas such as construction risks.

Our workshop assessed the risks attributed to design development and tested the assumptions to evaluate whether the risks could be eliminated, reduced, shared or transferred. We focused on the risks with greater magnitude on the project, based on the risk heat map.

We achieved success in challenging and reducing the overall risks to the client in the design development which was closer to the client’s preferred risk appetite. My work reduced the probability of some risks such as an incomplete design and conflicts in design through improved design production and coordination.

CareGiven the time constraints of the APC, your answer should give a brief but whole response. The answers given are not exhaustive; care should be taken to demonstrate your own skills, abilities and knowledge to the assessors. C

More information>For details on the new APC pathway guide for building surveyors, visit http://bit.ly/1fwGRhE

Related competencies include Construction technology and environmental services, Contract administration, Design and specification, Legal and regulatory compliance

COVER LINECOVER LINE

Construction JournalBuilding ConservationJournal

OPINION

Mixed feelingsRestoration mortars are playing a growing role in repairs but care is needed, research has shown

PG. 28

AAs a woman of a certain age, I have to ask myself a few conservation philosophy questions every day. Whether to carry out cosmetic repairs or take steps to address the underlying causes of disrepair? Indeed, how can the historic fabric be conserved, without impairing enjoyment? Is it better to be a crowd pleaser, or remain authentic?

Then I either put on my make-up or go for a run, depending on where I alight from this train of thought. The real art is knowing which to do first, or maybe

it is just a matter of having the will to do something, as William Morris would say “to stave off decay by daily care”.

Clare Torney and Alan Forster’s informed piece on restoration mortars hopefully won’t be informing my daily restoration regime, but it certainly arms us with the technical know-how to make informed decisions. Plastic repairs for masonry (by which I mean mortar repairs that can be moulded in-situ) have had a bad rap, because mix strength, compatability and performance have all weighed against them.

To do them well, they require most of the craft skills of an indent, and, done well, can arrest decay, or even ‘buy time’ before a bigger, irreversible intervention is inevitable. Science is definitely on our side, as deeper technical understanding increases the range and quality of repair options.

And not just in conserving masonry. My practising experiences of the past 20 years have seen many repair techniques fail the test of time; failure we can manage or prevent with scientific insight. I recently witnessed a timber beam almost wholly replaced following failure of a resin filler repair, which was the only stubborn survivor (complete with its devilish little fiberglass pins).

Similar objective examination of thermal performance, cathodic protection, and I daresay, a dozen other accepted repair techniques, informs the choices of RICS historic building professionals.

If you are exploring rics.org technical advice, why not book into the autumn CPD series on masonry repair, or sign up for an RICS/ Society for the Protection of Ancient Buildings Summer or Winter School? Or even contribute an article – the journal team will guide you to greatness with expert peer review and editorial support.

I am especially grateful to our editorial advisory group. They pack the journal with terrific features on how skilled professionals can best care for our life-enhancing but delicate, irreplaceable, historic fabric. Which reminds me… I really must see the dentist. C

Lynda Jubb FRICS is Chair of the RICS Building Conservation [email protected]

Eye in the skyWhy drones might represent a future opportunity for historic property surveying

PG. 32

Buying time on restoration

October/November 2015rics.org/journals

Heritage AgendaHenry Russell's regular update on the key issues in the conservation world

PG. 34

Membership of the Building Conservation Forum is FREE. For more information, email [email protected]


RICS BUILDING CONSERVATION JOURNAL

M AT E R I A LS

Although growing in popularity, further research is needed before restoration mortars can be used with confidence, caution Clare Torney and Alan M Forster

Concerned with compatibility

MMasonry performance requirements and deterioration are increasing, due ostensibly to rising average rainfall associated with climate change. Within this context, the aphorism that ‘water is the engine of decay’ is a particularly important consideration for specifying in a northern maritime climate.

Rising levels of penetrating dampness, twinned with the lower potential for evaporation (a function of high relative humidity, relatively low ambient temperatures and low sun light hours) in structures, are associated with changes in the surface and sub-surface weathering of stone. In addition, increased greening and mobilisation of soluble salts are leading to the accelerated deterioration of stone-built structures.

Practitioners today are required to make conservation decisions that are contextualised within moisture-related

building resilience to climate change, and stone materials specification is no exception. These decisions should be based on informed guidance that considers repair durability, its ability to satisfy the multiplicity of broad building conservation philosophy parameters and the material itself together with its compatibility with host substrates.

A first order consideration for compatibility is moisture transfer and response to the challenging environmental conditions that confront the UK. Specifying materials that do not effectively ‘breathe’ relative to their host materials will almost certainly increase the risk of latent building defects.

Masonry repairs are principally undertaken using natural stone replacement (including indenting part of a stone), or ‘plastic’ repair using lime mortar. Both have benefits, but mortar repairs are only suitable for non-structural surface repairs. The advantage of mortar repairs is that they enable a minimal intervention strategy because they retain the maximum amount of original stone. They are also sacrificial and in the short term cost significantly less than replacing stone.

However, lime mortar repairs are perceived to be

difficult to effectively specify and execute, requiring good technical knowledge and craft skills.

As a result, a new generation of products known as ‘restoration mortars’ has been developed. These refocus the repairs towards convenience, and are marketed on ease of use. While these may have benefits, for conservation works there is generally a presumption against the use of materials that have not been subject to long term testing to support their adoption.

Collaborative research conducted over the past few years by Historic Scotland and Heriot-Watt University has made considerable headway in establishing the types and properties of some of the restoration mortars available in the UK. This work aims to identify the pros and cons of using such materials, and to make an assessment of their compatibility with historic stone substrates.

Categorising mortarsRestoration mortars are proprietary products that can be categorised under the umbrella of ‘plastic repairs’ (sometimes referred to as mortar repairs), but are distinct from the bespoke lime

mortars that are blended on-site using traditional materials and methods. They aim to provide a convenient ‘mix and go’ approach to stone repair, and in some cases claim suitability on a number of substrate types, from limestone and sandstone to brick and concrete block.

These off the shelf products are available from a range of manufacturers, and despite being informally classified under one name, they can be compositionally diverse with respect to both their binding components and aggregate type. Although not yet covered by any standards, they typically fall into one of four categories: resin-based, cement-based, lime-based and hybrid-mix restoration mortars. The latter consist of a mix of lime and cement binders with additives and fillers to impart specific properties such as enhanced workability and frost resistance.



mStone deterioration is exacerbated by exposure to moisture and mobilisation of salts

However, due to the formulated nature of hybrid-mix products (i.e. the presence of additives), high breathability can be achieved in materials that have very low uptake of liquid water by capillary suction (see Figure 2). For instance, air entraining additives result in the presence of large voids that cross cut capillary pathways significantly reducing their effectiveness. Where large expanses of such a mortar are used, the lower water absorption rates can give rise to a build-up of moisture in the adjacent stone that will ultimately lead to accelerated deterioration.

As well as the indirect impacts of deterioration of wet masonry, such as the association with corrosion of metals and fungal attack in timbers, dampness in building elements can result in them being a third less energy efficient (BS 7913:2013). This can only support the all too common claims of historic buildings being ‘old and cold’, portraying them in a negative light when it comes to sustainability and informing future construction plans.

Given the compositional diversity of restoration mortars, it cannot be assumed that one product will behave in the same, or even similar, manner to another. Also, the differing building stone types and their properties means that a restoration mortar compatible with one may not be compatible with another. This highlights the need for the end user to have an in-depth understanding of the materials they are repairing and procuring.

Restoration mortars in thin section. A. lime-based, B. hybrid-mix, C. resin-based, D. cement-based.

Figure 1

Restoration mortars must meet a number of requirements to be considered compatible for use on stone. From a philosophical viewpoint, materials should ideally have the versatility to be coloured and/or tooled to match existing masonry in cases where it is considered important to maintain the visual integrity of the structure. From a technical perspective, compatible ‘breathability’ and water absorption are possibly the most important characteristics in ensuring that repairs do not negatively impact on the transmission of moisture within a structure. Additionally, mortars should be sacrificial to the stone (i.e. have lower durability) while being robust enough to withstand natural weathering, avoiding the need for repeated intervention on very short timescales.

The differences in the primary binding agent, and

the associated impacts on material properties of different restoration mortars, are illustrated through petrographic analysis. Resin and cement-based mortars have low porosity, and as such could prove detrimental if used in conjunction with more porous masonry due to the risks of moisture entrapment (see Figure 1). Such low permeability repair products are perhaps better suited to the conservation of objects that are not exposed to moisture, or significant changes in humidity.

Both lime-based and some hybrid-mix restoration mortars have much greater porosity and permeability, which in theory, bring a better ability to deal with moisture changes in the structure, reducing the risks of incompatibility. The interconnected pores seen in petrographic thin sections provide a large 3D network through which water vapour can travel, allowing the material to breathe.

The ‘breathability’ of these materials falls within the range of values measured in a number of historic sandstone samples, suggesting that they may at least be compatible with some stone types in relation to this property specifically. n



M AT E R I A LS

Conservation concernsProprietary restoration mortars are increasingly being used in stone masonry conservation. The apparent universal suitability on numerous substrates may contribute to their popularity

among consultants, because this removes the need to specify bespoke mortar mixes for repairs, or to identify suitable stone types for replacement, saving both time and money. In addition, the pre-batched nature of the products naturally

makes them attractive to practitioners, because this saves time on site and eliminates the risk associated with incorrect batching of raw materials reducing the likelihood of failures.

However, there appears to be a lack of awareness,

or at least agreement, as to the appropriate extent of use. BS 8221-2:2000 states that in most cases natural stone should be used for surface repair, and while acknowledging that ‘special mortars’ can be used for repair to areas of localised damage, it is clearly stated that they are not suitable for use in areas of high exposure.

We have identified cases where a combination of stone repair and replacement encompass functional and philosophical requirements. However, the use of restoration mortars for large-scale facade rendering, giving an artificially renewed appearance, shows a failure to incorporate systematic and informed approaches, and use of repairs at high level (e.g. chimney and copes) highlights a disregard or lack of awareness of current guidance. Given the increasing occurrences of masonry falls from height, the use of potentially incompatible materials for high level repairs is very much a cause for concern.

Research and site experience in using mortars for conservation work has shown the complexity of materials’ interactions/compatibility, and highlights the importance of appropriate material specification. The convenience-focused approach of restoration mortars, to a large extent, does away with the well considered case-by-case assessment and specification approach that should be adopted for repairs.

Given the well documented failures associated with the use of incompatible materials on historic masonry in the past, it is perhaps wise to adopt a more restrained approach to restoration mortar use. Additionally, the mix and go approach,

Comparison of moisture diffusion properties of restoration mortars with stone and mortars. Restoration mortars (green) that have similar ‘breathability’ characteristics (top) can still have very different water absorption properties (bottom); this can impact significantly on their compatibility with stone

Figure 2

n



Related competencies include Design and specification, Construction techniques, Building pathology

Clare Torney is a Conservation Scientist in Historic Environment [email protected]

Alan Forster is Associate Professor in the School of Energy, Geoscience, Infrastructure and Society, Heriot-Watt University [email protected]


and the availability of some products in high-street DIY stores, is opening up the masonry repair market to a wider, lesser skilled, consumer base.

Research has shown that even slight modification of materials through inaccurate water addition or uncontrolled mixing times, can significantly influence the properties of some materials, and highlights the need for a thorough understanding of the product prior to specification, preparation and application.

The use of proprietary restoration mortars for masonry repair to historic structures is viewed by many in the heritage sector as a controversial topic. Due to a lack of understanding of

materials’ interactions and the associated use of highly cementitious, impermeable and incompatible materials in the past, there is naturally a degree of suspicion over new repair products, especially those containing cement.

Proprietary restoration mortars have been used for a relatively short period of time (less than two

decades), and the lack of any well documented site observations on their performance leaves many questions unanswered and highlights the need for further work. Recent research on restoration mortars has revealed the highly variable nature of products on the market, owing to the range of

CLIVEDENCONSERVATION

By appointment sculpture conservators to THE NATIONAL TRUST

them a designer for the purposes of CDM 2015.

It is important to recognise that under CDM 2015 the term ‘a designer’ is defined as someone who carries out design, and ‘design’ is widely defined. If the prospective principal designer is a designer, and also has the skills, knowledge and experience to fulfil that role, they should be able to obtain PII in the normal way.

It is also worth remembering that CDM 2015 does not require that either a designer or the principal designer hold PII. Almost all designers will wish to do so, but that is entirely separate from the obligations to have the necessary skills, knowledge and experience to carry out their roles under CDM 2015 for any particular project. b

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Required proceduresPrior to visiting a property, we produce standard risk assessments and method statements, which are then reviewed and amended as necessary before we contact air traffic control for approval. Without stating the obvious, we also have a sizeable public liability insurance cover.

On arrival, we establish our safe zone together with a secondary zone, run through pre-flight procedures and then start the drone, allowing it to establish its GPS location. This is very important because in the event of a problem, it will come ‘home’.

Pros and consIn our opinion, the advantages of drones far outweigh the disadvantages. Dealing with the latter first, it is not advisable to fly a drone in strong or gusting winds. Despite their GPS technology, they can be pushed off course and if they strike a tree or building, you could be looking at a replacement or worse.

Heavy rain also causes the photographic images to blur. But put bluntly, how many of us would want to stand in a cherry picker carrying out a survey in heavy rain or strong wind?

The advantages of the drone are:

b A much reduced health and safety risk: there are no people or plant up in the air, only a vehicle with inbuilt safety features including battery power monitor,

Bird’s eye view

Roy Emmerson discusses the benefit of using drones for inspection

During their careers, a question frequently facing surveyors and builders is: “How do we get to inspect that?” It was also a problem encountered by building contractor Mike Szkoda and me, a chartered building surveyor.

The answer at that time was a very expensive cherry picker. However, our interest was piqued and after detailed research and enquiries, we developed the concept of using an unmanned aerial vehicle with a camera and our company HeliDrone Surveys was born. This was not a new idea, but one with very limited use in the surveying profession at that time.

It soon became apparent that there are stringent rules and regulations when flying for commercial gain. The Civil Aviation Authority (CAA) requires minimum standards for pilots, involving a theory examination, a practical flying test and approval of an organisation’s operations manual. All this can be very daunting.

come-home locator and kill switch. If operated correctly, the drone knows the location from where it took off and if the battery runs low, it ignores all external commands and comes home; equally, a switch on the control panel achieves the same function.

b Minimal disruption: the pilot only requires a clear line of sight of where the drone is flying and can operate it from a distance of 400m. Therefore, unlike a cherry picker or scaffolding that may obstruct an entrance or occupy parking spaces, a safe zone can be established away from the building.

b Better quality images: a drone-mounted camera takes photographs at predetermined intervals (ranging from one to 30 seconds) together with continuous film footage.

DThe images are very high resolution, enabling the viewer to zoom in and see a high level of detail. They can also be issued electronically within a few hours of the survey or if required, downloaded onto a USB while still on site.

b Reduced survey time: compared to cherry pickers or scaffolding, the drone can be set up and ready to fly in approximately 20 minutes.


DRONES

There are very stringent rules and regulations when flying for commercial gain

Images © HeliDrone Surveys Limited

Benefits for surveyorsDuring the survey, the surveyor will be given a remote monitor allowing a drone’s-eye view of the building. They can direct the flight path or request more time in the event of unforeseen elements that are only visible once the drone begins flying. The monitor works over quite a distance, giving the additional advantage that they can remain in the warm while the pilot is outside. Numerous people, e.g. clients and occupiers, can view the monitor at any one time.

It is very easy to reassemble the drone at another property, perhaps just around the corner or a few miles up the road. We always travel with spare batteries; the more surveys that can be carried out on a single visit, the more financially beneficial it is for the client.

Since the organisation was granted permission for aerial work by the CAA, it has undertaken numerous surveys nationwide, ranging from large industrial facilities to small city-centre terraced houses. We are getting repeat instructions from surveyors, and although the initial aim was to photograph, be it roofs or elevations, we are now receiving more complex and varied requests. The possibilities are probably only limited by imagination.

Unfortunately, unqualified people are using drones to the detriment of the many responsible pilots, resulting in bad reviews that are not reflective of the industry. Use of drones is relatively new and existing regulations are being reviewed and adapted. Other than the CAA, there are various forums and groups (we belong to the Association of Remotely Piloted Aircraft Systems UK), which are all striving to make drone use more accepted while maintaining safety standards.b

More information >www.helidronesurveys.co.uk

Should you pursue drone technology? http://bit.ly/1JYwMct

The usual flight operation is 30 minutes and covers a very large area. Because it flies in different directions over the target building, images are obtained from various angles.

b Environmentally friendly: because they are operated by rechargeable batteries, drones do not generate any fumes. The only potential disturbance is the whirring of the rotors.

b Access: in some circumstances, it may not be physically possible to use a cherry picker or scaffolding to reach a roof or high-level elevation due to access or weight constraints, which could result in very high costs. The costs of using a drone are fairly low, they are carried in a case that is easily accommodated on public transport and only need an area of around 4m x 4m to be set up.

The feedback on the use of drones has seen some surveyors immediately excited by the new technology, while others were sceptical about the potential results and advantages. When given the opportunity, we hope we have proved the sceptics wrong.

We initially launched HeliDrone Surveys at the RICS Dilapidations Conference 2014 and the interest shown was amazing, with surveyors all keen to find out its capabilities. The same was experienced at the RICS Building Surveyors Conference 2015.

Related competencies include Inspection, Building pathology


mA drone survey allowed inaccessible areas of Spains Hall, Finchingfield, to be inspected

Roy Emmerson MRICS is Director at HeliDrone [email protected]


Library listingsNew listings are often made as a result of a thematic survey, and the most recent of these are modern libraries. The British Library has been listed Grade I by Heritage Minister Tracey Crouch on the advice of Historic England and joins the top 2.5% of listed buildings in England.

Designed by architect Sir Colin St John Wilson and MJ Long between 1982 and 1999, it was the largest UK public building to be built in the 20th century.

Crouch said: “The British Library divided opinion from the moment its design was revealed, but I am glad that expert advice now allows me to list it, ensuring that its iconic design is protected for future generations to enjoy.”

The listing coincides with award of Grade II status to seven libraries from across the UK. These are:

b Suffolk Record Office (1963-65, Donald McMorran)

b Bebington Central Library, The Wirral (1967-71, Paterson, Macauley and Owens)

b Milton Keynes Central Library (1979-81, Buckinghamshire County Council architects)

b Chandler’s Ford Library, Eastleigh, Hampshire (1981-82, Colin Stansfield Smith)

b West Sussex Library (1965-66, county architect F R Steele)

b Bourne Hall Library & Social Centre, Epsom, Surrey (1967-70, AG Sheppard Fidler and Associates)

b Lillington Library, Leamington Spa, Warwickshire (1959-60, Henry Fedeski).n http://bit.ly/1hvMqS7


Historic England has published guidance on access to historic buildings, replacing the previous 2004 document and addressing issues such as signage, lighting and use of colour contrast for the benefit of all users.

Physical access issues often pose the greatest challenges as well as opportunities for historic buildings. But the guidance is not limited to those buildings preserved and opened to the public purely as historic attractions and also focuses on shops, offices and civic buildings – although significant issues in relation to interpretation (intellectual access) are largely beyond its scope. The advice note covers:

b why access matters b planning better access b making access a reality b published sources of information b where to get advice.

The Equality Act 2010 Statutory Code of Practice states: “The policy of the Act is not simply ensuring that some access is available to disabled people; it is, so far as is reasonably practicable, to approximate the access enjoyed by disabled people to that enjoyed by the rest of the public. The purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large (and their equivalents in relation to associations or the exercise of public functions).”

n Easy access to historic buildings, visit http://bit.ly/1hvM0LF

Guidance on access to historic buildings

UPDATEThe Chancellor’s summer budget contained proposals to speed up the planning system and bring forward brownfield land for development. Set out in the Fixing the Foundations policy paper, these include:

b legislating to give automatic planning permission in principle on brownfield land. The heritage sector argued for a ‘brownfield first’ approach in the National Planning Policy Framework. Brownfield land has – by definition – been previously developed, so there are highly likely to be archaeology issues. Brownfield development may affect the settings of adjacent listed buildings. These are important issues for the heritage sector, and the detailed proposals for legislation have not yet been published

b speeding up the production of local plans, and reducing their length

b ensuring planning decisions are made on time

b strengthening the processes of the local authority duty to cooperate through improved guidance on housing and planning issues

b allowing upward development in London by increasing the number of storeys up to the height of an adjoining buildings, where neighbouring residents do no object.

Meanwhile, the House of Lords Select Committee on National Policy for the Built Environment has called for evidence in its inquiry on the housing crisis.n http://bit.ly/1hvJkgX

Planning proposals debated


H E R I TAG E AG E N DA

+info

Heritage Agenda is compiled by Henry Russell OBE FRICS, School of Real Estate and Planning, University of Reading and chair of the Heritage Alliance’s Spatial Planning Advocacy [email protected]


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