by Hardwick Legal | Jan 17, 2017 | Purpose Built (LexisNexis)
Sir Vivian Ramsey, former judge of the Technology and Construction Court, considers the new editions of the Professional Services Agreement suite published by the Association for Consultancy and Engineering (ACE), and why the changes were implemented. The revised agreements include a new Professional Services Agreement and Sub Consultancy Agreement as well as new Schedules of Services for both Civil & Structural and Mechanical & Electrical Engineering.
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What changes have been made to the new editions of the ACE Professional Services Agreement suite and why?
Experience in the courts and arbitration indicates that many agreements between consultants and their clients are made by an exchange of letters and with little formality. This may, of course, be the very reason why a dispute has arisen. Sometimes the speed of appointment means that consideration of the detailed terms of the consultancy agreement takes second place to performing the work, particularly for small and medium sized firms.
For many years, the ACE has provided the main standard forms of agreement which consultants have used. They have provided useful guidance and, when properly used, have successfully regulated the relationship between clients and consultants. The existing suite was last revised in 2009 and it has become necessary to take account of several developments since that date.
The recent release by ACE of its first major update of the Professional Services Agreement suite in January 2017 is therefore to be welcomed. The revised agreements include a new Professional Services Agreement and Sub Consultancy Agreement as well as new Schedules of Services for both Civil & Structural and Mechanical and Electrical Engineering. The aim of the new editions is to improve the efficiency and certainty in the way in which professional services are procured. This is assisted by detailed guidance notes which accompany the agreements.
The focus has been on the creation of a logical, user friendly format containing a clear and fair allocation of risk between the client and the consultant. At the same time the new agreements have addressed issues which now arise from industry practice and Government initiatives such as good payment practice, collaboration, risk management, BIM, dispute resolution and soft landings initiatives. The changes have taken account of industry consultation and the views of users.
Issues arise in respect of the rights and liabilities of consultants. The new agreement contains comprehensive provisions including liability relating to deleterious materials, a reasonable endeavours obligation in respect of any programme for the Services, Consultant’s responsibility for sub-consultants, timing of requests for information from the Client, the authority of the Consultant’s Representative, the ability of the Consultant to act as agent and the duty for the Consultant to exercise any discretion in a fair, impartial and professional manner.
Joint obligations are dealt with and include a duty of collaboration supported by a mutual early warning obligation in relation to matters that are likely to affect the provision of the Services leading to discussions, actions and measures. There is also a duty to work together to analyse and manage any risks.
Variations to the Brief or the Services are the subject of express provisions and there is also provision for payment for disruption to the Consultant’s work. There are clauses dealing with limitation of liability, proportionate joint liability and time limits for claims, which together with insurance deal comprehensively with these necessary topics. There are also particular rights of suspension, in addition to the familiar termination provisions.
As with all standard forms the Schedules allow for detailed provisions, including BIM protocols, to be chosen for the project and any bespoke arrangements. As always, the Schedules require care in completion. A standard collateral warranty is included with an optional provision of beneficiary’s step-in rights.
It can therefore be seen that the approach taken in the new Professional Services Agreement, which is also reflected in the other documents, makes this new suite of agreements an essential part of regulating obligations and avoiding disputes. It will be welcomed by consultants and clients alike.
Copies of the entire Professional Services Agreement suite are available to view and purchase from the ACE website.
Source: LexisNexis Purpose Built
ACE Professional Service Suite of Agreements 2017 released
by Hardwick Legal | Jan 13, 2017 | Purpose Built (LexisNexis)
Karen Mutton, principal associate in the national planning and infrastructure consenting team at Eversheds, Laura-Beth Hutton, senior associate in the national planning and infrastructure consenting team at Eversheds and Angus Walker, partner in the planning and infrastructure team at Bircham Dyson Bell consider what lies ahead for planning lawyers in 2017.
This is an excerpt from a planning analysis, published on Lexis®PSL, which also takes a look at what are likely to be the most important cases, the impact of Brexit and its impact on client and business developments. Sign up for a free trial to access the full analysis on Lexis®PSL Planning.
Karen Mutton & Laura-Beth Hutton: In July 2015, the government issued a Written Ministerial Statement that sought to address the failure of a number of local planning authorities to produce a local plan in the decade since the enactment of the Planning and Compulsory Purchase Act 2004. This required plans to be in place by ‘early 2017’ to avoid intervention by the Secretary of State. We are approaching the cut-off date, and those powers of intervention have recently been strengthened by the Housing and Planning Act 2016 (HPA 2016) to allow the Secretary of State to make a local plan on behalf of an authority that fails to do so or indeed to prepare or revise any development plan document. This power can be exercised if the Secretary of State thinks that the local planning authority is ‘failing or omitting to do anything it is necessary for them to do in connection with the preparation, revision or adoption of a development plan document’. It will be interesting to see how these wide-ranging powers are exercised while still embracing the localism agenda.
The regulations relating to starter homes due under HPA 2016 are keenly awaited. The concept of starter homes was introduced by David Cameron as part of the Conservative Party manifesto, and Gavin Barwell, Minister for Housing, has recently announced the ‘first wave’ of 30 local authorities who will be allocated funding aimed at preparing land for starter home development. Yet questions continue to be asked, both about whether it will be possible to build 200,000 homes by 2020 to deliver on the Government’s pledge and, vitally, how the new category of ‘affordable housing’ will be administered in practice. The regulations required to provide the operational details have been repeatedly delayed, and there had previously been suggestion that the starter home initiative may be dropped, or amended to include a requirement to provide more homes to rent too. Whilst the recent announcement confirms that the starter home initiative is still live, and the imminent White Paper may bring some clarity as to the Government’s intentions for this product, what is beyond doubt is that the continued uncertainty surrounding starter homes is causing concern across the industry for:
- smaller developers in terms of whether their schemes of ten dwellings will be affected
- larger developers in terms of factors such as site viability, impact on cashflow and the market for these products across the whole of the country, and
- local authorities in terms of the impact on the delivery of the appropriate range of affordable housing to meet the needs of their communities
- smaller developers in terms of whether their schemes of ten dwellings will be affected
- larger developers in terms of factors such as site viability, impact on cashflow and the market for these products across the whole of the country, and
- local authorities in terms of the impact on the delivery of the appropriate range of affordable housing to meet the needs of their communities
The latter has, of course, already been affected by the re-introduction of the exemption for sites under ten dwellings to provide affordable housing pursuant to the Court of Appeal decision in R (on the application of West Berkshire DC and Reading BC) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441, [2016] All ER (D) 99 (May).
It will also be interesting to see how the proposed further changes to the neighbourhood planning system impact on development.
It is clear that the government is keen to encourage communities to shape development in their neighbourhoods, but it is far from clear at present how the content of an emerging neighbourhood plan, will influence determination of a planning application. The Neighbourhood Planning Bill requires that regard must be had to a post-examination neighbourhood plan, albeit we have recently had the first rejection of such a plan at referendum as a result of amendments proposed by the independent examiner. In a further recent appeal decision in East Staffordshire v CLG [2016] EWHC 2973 (Admin), the Secretary of State gave great weight to the policies in an emerging neighbourhood plan taking account of modifications proposed by the examiner, which included amendments that specifically affected the site in question.
The Peace Review into the Community Infrastructure Levy (CIL) is keenly awaited—many hopes are pinned on this recommending simplification of the current system, particularly with regard to pooling, and these being implemented in 2017. This is to be revealed in the White Paper promised soon.
Angus Walker: The Supreme Court judgment in the Miller case on Article 50, and the subsequent triggering of that article, whether or not it needs a vote in Parliament will be significant. This will start the process for leaving the EU that will complete whether or not a deal is done two years later.
The CIL review may eventually be published and its recommendations could mean a significant change to CIL leading to greater use of agreements under section 106 of the Town and Country Planning Act 1990. While not being abolished altogether, it is widely expected that CIL will be reduced in scope and s 106 agreements will take up the slack. The HS2 Bill will almost certainly become an Act in 2017, giving the government the powers to acquire land and start to construct the railway. The land along the route will be directly affected, and planning applications for development near the route will have to give more weight to the construction of HS2 nearby.
The ‘Great Repeal Bill’, actually a Small Enactment Bill, will start its journey through Parliament, replacing EU law with an exact domestic equivalent, initially. Once Brexit is achieved, the government will be free to tinker with this legislation and make it different from EU requirements, to the extent it is allowed to under the agreement that is reached.
Further reading:
Source: LexisNexis Purpose Built
Planning—what are likely to be the most significant legislative and regulatory developments and why?
by Hardwick Legal | Jan 13, 2017 | Purpose Built (LexisNexis)
Simon Colvin, partner and national head of the environment team at Weightmans LLP, predicts the key developments, trends and challenges facing the environmental legal sector in 2017.
What are likely going to be the most important cases in 2017, and why?
Climate change litigation such as Client Earth’s case against the UK government will be ongoing. The High Court has ordered the government to replace its ‘illegal’ air quality plans by July 2017 and to have draft plans in place by April 2017. If the government misses these deadlines, or if the plans are inadequate, further court challenges are likely to follow. We might also see challenges to the government plans to expand Heathrow Airport.
As the global oil price rises and fracking in England becomes more economic, I expect we will see more fracking activity. That will inevitably mean more challenges to the decisions of regulators to grant or refuse the consents required for fracking operations.
The relatively new Sentencing Council Guideline for Environmental Offences will continue to bite. 2016 saw the £1m fine glass ceiling broken on a few occasions. I expect we will start to see the courts getting braver and imposing even more significant fines in 2017.
What are likely to be the most significant legislative and regulatory developments, and why?
I think the most significant developments are likely to be on the policy front and at an EU level.
The government is due to publish its long-awaited Environment Plan 2025. The original publication date was in 2016, but that got pushed back as a result of Brexit. As we leave Europe we will leave behind the extensive framework of environmental policies that exist. The government needs to take urgent steps to fill that void and to provide a sense of direction. It will be interesting to see how far the Environment Plan 2025 goes and what its key areas of focus are.
The government is also due to continue work on its industrial strategy. It will be interesting to see the role that the circular economy plays in the new strategy and the significance attached to environmental considerations. Will these be secondary or will they be at the centre of the new strategy?
At an EU level, the Commission’s work plan for 2017 identifies the circular economy as an area of focus, so I expect to see more developments there.
How is Brexit likely to affect these?
Brexit has the potential to impact all of these areas, both directly and indirectly. If, as appears to currently be the case, we leave the EU and do not join the single market because of the hurdles in relation to the free movement of people, the government will have a significant amount of freedom when it comes to determining the scope and application of any environmental controls. If it chooses to do so, the government will be able to adopt a new approach to the regulation of activities that impact the environment. The likelihood is that the environment will sit too far down the ‘to do list’—and as a result will not get the time and attention it needs to properly develop and evolve.
The fact EU case law will soon no longer be binding will be relevant to climate change litigation.
Brexit will undoubtedly mean uncertainty and that could temporarily delay any new fracking projects.
The Environment Plan 2025 needs to take account of the external controls that will apply to the UK. The likelihood is that the plan will be formed on the basis that EU controls will no longer apply, which is the most likely outcome of the Brexit process. The plan should reveal the extent of the government’s ambitions when we go it alone.
In summary, 2017 looks set to be an interesting year from an environmental legal perspective—with a number of important and challenging developments—in the pipeline.
Interviewed by Tracey Clarkson-Donnelly. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
Source: LexisNexis Purpose Built
Environment— looking ahead to 2017
by Hardwick Legal | Jan 12, 2017 | Purpose Built (LexisNexis)
What are likely to be the most significant legislative and regulatory developments and why?
Adrian Bell, partner in the energy, projects and construction disputes team at CMS, Hamish Lal, head of construction at Akin Gump Strauss Hauer & Feld, Tim Hillier, senior associate at Trowers & Hamlins and Alan Muse, director of built environment professional groups at RICS consider what lies ahead for construction in 2017.
This is an excerpt from a construction analysis, published on Lexis®PSL, which also takes a look at what are likely to be the most important cases, the impact of Brexit and client and business developments. Sign up for a free trial to access the full analysis on Lexis®PSL Construction.
Apprenticeship levy
From 6 April 2017, all companies with a payroll of over £3m will pay a 0.5% levy against the amount of their payroll, with an annual allowance of £15,000. Once paid, if based in England the company will be able to access funding for apprenticeships through a digital account (with different schemes applying in Scotland, Wales and Northern Ireland). By 2020, the plan is for all companies, not just those required to pay the levy, to have access to funding.
Gender pay gap reporting
The Equality Act 2010 (Gender Pay Information) Regulations 2016 are expected to come into force in early 2017. They will require employers in England, Wales and Scotland with 250 or more employees to publish their gender pay data in respect of their employees. This will include the median and mean calculations, plus the number of men and women within salary quartiles. In the event of any pay gaps, companies will have to provide a narrative to explain the cause and also set out any remedial action they intend to take. The first data snapshot is expected to take place in April 2017, with the results likely to be published later in the year.
The construction industry scheme (CIS)
On 6 April 2017, amendments to the Income Tax (CIS) Regulations 2005 (SI 2005/2045), will come into force. The CIS currently applies to contractors and subcontractors providing construction operations in the UK, with the aim of limiting the amount of tax lost as a result of subcontractors failing to report, or under-reporting, their tax. It works by withholding tax at source, paying the subcontractor with a deduction depending on their CIS status. Currently contractors are required to submit their subcontractor payment returns online. From April, contractors will also be required to verify the tax status of their subcontractors online, with limited exceptions.
Payment reporting
Section 3 of the Small Business, Enterprise and Employment Act 2015 (SBEEA 2015) is expected to come into force on 6 April 2017. This will impose a duty on large companies and LLPs to publish a twice-yearly report on payment practices, including standard payment terms and time taken to pay suppliers. The aim is to make it publicly known when companies are bad payers in order to encourage better payment practices. Failure to file or publish a report imposes criminal sanctions at director level.
Project bank accounts (PBAs)
From 31 October 2016, all building projects procedure by Scottish government bodies with a value of over £4m, or £10m in the case of civil engineering projects, are to incorporate PBAs. This adds to the existing government policy in England supporting the use of PBAs and should help to increase familiarity and confidence as to their use within the industry.
Public procurement
There is a widespread belief that the Public Procurement Rules, namely the Public Contracts Regulations 2015, SI 2015/102, the Utilities Contracts Regulations 2016, SI 2016/274, and Concession Contracts Regulations 2016, SI 2016/273 will, post the UK’s exit from the EU, need to be repealed or amended. However, we do not see this—the UK had a procurement regime before joining the EU. There was no single regulatory framework prior to the EU, but compulsory competitive tendering for local authorities together with public bodies’ own internal rules and policies for procurement were in existence. Further, the UK’s approach to implementing EU procurement law has deliberately exceeded the minimum requirements imposed by the parent directives.
For example, the NHS (Procurement, Patient Choice and Competition) (No 2) Regulations 2013, SI 2013/500 included further regulation to the procurement of NHS healthcare services by NHS England and Clinical Commissioning Groups. The Public Contracts Regulations 2015 included more rules in Part 4 concerning, among other things:
- advertising on Contracts Finder
- use of the Cabinet Office standard pre-qualification questionnaire and rules relating to sub-threshold contracts, and
- SBEEA 2015 imposed greater duties on authorities relating to their procurement processes and to investigate the processes of authorities
Reform of the UK public procurement regime is highly unlikely.
Pre-action protocol
We have a new pre-action protocol for construction disputes, which came into force on 14 November 2016. The key changes in the new protocol are:
- parties may now consent to not use the protocol
- the parties no longer need to provide ‘full’ but only ‘sufficient’ information to allow the parties to understand each other’s position
- only in exceptional circumstances will the parties impose costs consequences for a failure to comply with the protocol
- the detailed requirements as to the content of the letter of claim, letter of response, and any response to counterclaim have been relaxed•there is more emphasis on the pre-action meeting taking place in the form of a mediation
- parties may agree extensions to a step in the protocol, but each step cannot exceed 28 days in aggregate.
(See News Analyses: Exploring the new Pre-Action Protocol for Construction and Engineering Disputes and Introducing the new construction protocol referee.)
The intention of the protocol appears to be to reduce costs of the pre-action process in construction and engineering disputes, and to allow the parties the flexibility to bypass the process and go straight to court. In many instances, the issues have been thrashed out between the parties during the final account process (or before) and therefore the pre-action protocol can be seen as another layer of legal cost before a final decision can be achieved. However, there remains merit in fully investigating a claim before submitting to court (especially given the increased court fees) and the new protocol appears to detract from this. In 2017 we will see the impact of the new protocol, and if it has any substantive effect on parties’ behaviour and investment in claims before issue.
Source: LexisNexis Purpose Built
Construction—looking ahead to 2017
by Hardwick Legal | Jan 9, 2017 | Purpose Built (LexisNexis)
Welcome to this month’s update by Lexis®PSL Property!
In this month’s update, we look at:
- Constructive trusts
- Security of tenure
- Option agreements
- Forfeiture
- Lease renewals
- Repair and replacement
- Modification of restrictive covenants
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Source: LexisNexis Purpose Built
December 2016 Lexis®PSL Property Highlights
The recent release by ACE of its first major update of the Professional Services Agreement suite in January 2017 is therefore to be welcomed. The revised agreements include a new Professional Services Agreement and Sub Consultancy Agreement as well as new Schedules of Services for both Civil & Structural and Mechanical and Electrical Engineering. The aim of the new editions is to improve the efficiency and certainty in the way in which professional services are procured. This is assisted by detailed guidance notes which accompany the agreements.
