Construction

Journal
Clearer view How to account for inflation
in modern construction projects
PG. 14

The way forward Knowing by site Bargaining chips February/March 2018

What progress is being made Linking industry and academia How you can improve your rics.org/journals
on RICS standards? for built environment students negotiation skills at work
PG. 9 PG. 16 PG. 20
RICS CON ST RU CT I O N A DV E RTI S I N G
JO U RN A L

THE NASC membership audit and application

process is now accredited to SSIP

Registered Member

CPD IS LIVE: TWO DAY MANDATORY CPD COURSES

PRIOR TO RENEWAL OF SCAFFOLDING CARDS
“HSE welcomes the introduction of this into the CISRS scheme ... it will have a positive
effect, particularly for those who may not have received any formal training for years.”
Ray Cooke, Head of Construction Sector Safety Unit, HSE

www.cisrs.org.uk
For further information go to:

To ad ve rtise con t a c t C h r i s C a i r n s +44 ( 0) 2 0 7 8 7 1 0 9 2 7 or c hrisc @wearesu nday. c om

2   F E B R U A R Y/ M A R C H 2 0 1 8
 C O NTENTS RI CS CONST RU C TIO N
JOUR NAL

Front cover:
© Shutterstock
contents
4 14
CO N TACTS 2020 vision Giving a good account
Justin Sullivan explains how Joe Martin of BCIS offers a
PG2020 is intended to transform clearer view of accounting for
CO N STR UCTI O N J OU R NAL RICS’ structure to fulfil our inflation in construction projects
international aspirations
Editor: Hannah Ramsden T +44 (0)20 7334 3757 16
E hramsden@rics.org 5 Knowing by site
Update Fostering positive relations
The Construction Journal is the journal of the Project
between industry and academia
Management and Quantity Surveying & Construction
Professional Groups 7 can provide valuable learning
Coming over the hill opportunities for built environment
Advisory group: The traditionally conservative students, as Joseph Rizzuto and
Helen Brydson (Faithful+Gould), Gerard Clohessy (Arcadis), construction industry needs Indira Chauhan explain
Christopher Green (J. Murphy & Sons Limited), David Cohen surveyors to take ownership of
(Amicus), Andrew McSmythurs (Schofield Lothian), David impending challenges – or face 19
Reynolds (Property & Construction Consultant), Tim Fry irrelevance, argues Mark Farmer Growth chart
(Project Management Professional Group Chairman), Alan Muse
Sebastian Chambers
(RICS), Rachel Titley (Arcadis), Steven Thompson (RICS)
8 identifies three key factors
Taking a lead crucial to progress in the
Construction Journal is available on annual subscription. All Between legacy projects and construction industry
enquiries from non-RICS members for institutional or company future uncertainties, construction
subscriptions should be directed to: business leaders are presented 20
with a number of challenges, Bargaining chips
Proquest – Online Institutional Access E sales@proquest.co.uk writes Jason Farnell Negotiation is vital to
T +44 (0)1223 215512 for online subscriptions construction, so Chris Green
9 advises how to improve your skills
The way forward at the table
RICS Director of Professional
Standards Ken Creighton talks 22
about progress made in the past First among equals
Published by: Royal Institution of Chartered Surveyors, year to establish standards for Carrie de Silva tells the
Parliament Square, London SW1P 3AD the profession, and the work that inspirational life story of Irene
T +44 (0)24 7686 8555 W www.rics.org
ISSN: ISSN 1752-8720 (Print) ISSN 1759-3360 (Online)
lies ahead Barclay, the first woman to
qualify as a chartered surveyor,
Editorial and production manager: Toni Gill 10 who did pioneering work in
On the side of the agents social housing and slums
Sub-editor: Matthew Griffiths
With the role of employer’s agent
Designer: Will Williams still seen as ambiguous, Kelvin 25
Advertising: Chris Cairns T +44 (0)20 7871 0927 Hughes introduces a new RICS Escape notice
E chrisc@wearesunday.com guidance note that is designed to Shy Jackson reviews a 150-year
clarify matters old ruling on nuisance, highlighting
Design by: Redactive Media Group   Printed by: Page Bros
its applicability to modern land
12 and construction cases
Clean bill of health
David Low celebrates the
success of the Department
of Health’s construction
procurement framework
ProCure22

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

F E B R U A R Y/ M A R C H 2 0 1 8   3
RICS CON ST RU CT I O N
JO U RN A L
CHAIRMAN'S COLUMN
2020 vision
I
PG2020 aims to transform RICS’ structure to fulfil
our international aspirations, says Justin Sullivan
In 2014, RICS Governing
Council embarked on
GC2020, to make RICS’
top-level strategy-setting
group more agile and
relevant in our changing
world. At the same time, the
council recognised that our
professional group (PG) board
structure should be fit for
purpose to reflect the needs
of RICS members and market
demand for standards. The
council delegated the task of
reviewing this to a working
party of council members and
Knowledge Board.
Our current structure of 17
PG boards in the UK doesn’t
scale in a manageable way
into the world regions – if we
did this for each country in
which we operate, we would
have 2,482. That is a lot of
resource. As our PGs are
important, we need to change
the way we are organised.
November and December
last year saw the membership
vote in some of its new
council members, and the
council in turn approved work
on PG2020 so far. This has
been through a number of
rounds of consultation with
existing PG board members
and other stakeholders, and
4   F E B R U A R Y/ M A R C H 2 0 1 8
CH A I R M A N ’S CO L U M N
we will now start to implement
the model we have developed.
At present, PGs comprise
professionals qualified in
relevant areas, such as
quantity surveying and
project management, who
work across disciplinary and
geographical boundaries.
They are:
bb standard-setters,
responsible for developing
all professional and technical
standards content
bb promulgators of insight
and knowledge
bb advisors to the governance
of RICS, the council,
profession and wider world.
Our consultation found that
the further you travelled from
our London HQ, the less
engaged the PGs felt with
Governing Council’s strategy.
The creation, implementation,
delivery and regulation of
RICS standards remains our
top priority, and we need a
structure to support this.
The consultation showed
both a desire and need
for cross-disciplinary
collaboration. Our markets
see RICS professionals as
thought leaders who have
both broad and specialised
areas of expertise, and
our standards programme
must reflect this. It was
also apparent that we need
better member engagement,
greater diversity and better
use of technology. We need
to connect with our world
regions more effectively
and gain market insight that
can inform the creation of
standards. When considering
how to translate these
considerations into a scalable
model, the working party
decided that future PG
membership would expect a
digital environment to enable
engagement across the 146
countries in which RICS
professionals practice.
The proposal for which
Governing Council voted also
includes a joint standards and
regulation board – a working
title – comprising professional
members, standard-setters
and regulators, and below this
sits the new replacement of
the current professional group
board structure. We will have
a model made up of leaders’
forums, standard-setting
committees and wider global
communities, open to all.
bb These will have global
leaders from the profession
or wider sector, whoever has
suitable expertise.
bb Standards are
developed by expert
standard-setting committees.
bb They convene in person
or online, at regional or global
level, to address issues and
risks, explore themes and
devise standards, professional
statements and guidance.
bb Global leaders and
standards-setting committees
are appointed by the
profession with
independent input.
We are now creating the
leaders’ forums and the digital
platform. This work is led by
an implementation group of
professional members from
RICS regions and PGs, and
is chaired by myself. We will
be working with all existing
PG boards and carrying out
further consultation.
PG2020 plans should
enable many more
professionals to become
involved in standards, insight
and guidance regionally or
globally. A fundamental aim
is to move away from the
current UK-centric approach
to standards, ensuring more
involvement from a wider
range of individuals with
appropriate expertise on a
global portfolio of consistent
standards responding to
genuine, substantive market
risks and expectations.
While there is a distinction
between RICS’ recognised
role as a self-regulating
body in the UK and the
enforcement of our standards
in other markets, in the latter
we aim for our standards and
the way they are monitored
and enforced to be consistent
while attuned, where
appropriate, to regional norms
or national requirements.
If you want to get
involved with PG2020 and be
part of shaping the future of
our profession, please do get
in touch. b
Justin Sullivan FRICS is Chair of
the Global and UK RICS Quantity
Surveying and Construction
Professional Group Boards
qsandc.professionalgroup@
rics.org

UPDATE
ICMS guidance published to
support implementation
EVENTS
RICS Commercial
Management in
Infrastructure Conference
8 March, London
n www.rics.org/
cmconstruction2018
RICS Quantity Surveying &
Construction Conference
10 May, London
How can the sector adapt and
modernise to remain competitive
and resilient? As the continuing
skills shortage and uncertainty
over Brexit dominate the industry,
you can hear first-hand views from
our expert speakers, including
CEOs, economists, developers and
contractors, to discover how to
tackle these issues.
n www.rics.org/qsconference
UPDATE
Since the launch of the International
Construction Measurement Standards
(ICMS) in Canada in July 2017, we have
been speaking to many professionals
and users about their implementation.
Governments in the UK, Canada,
South Africa and Qatar are showing
an active interest in the standards, and
several large global consultancies are
already using them in practice, including
Turner and Townsend, Arcadis and
Faithful+Gould.
With this in mind, we have developed
an ICMS user guide for RICS members,
ICMS Explained, which was published in
December (www.rics.org/icmsexplained).
This technical document sets out the
purpose, context and philosophy of the
standards, unpacking the structure and
cost classifications to give practitioners a
step-by-step guide to using them.
In addition, we have developed a data
standard for ICMS, to be published in
spring 2018. This will allow the standards
to be embedded in software, and enable
data processing and the collection of
costs in ICMS format.
To integrate ICMS into RICS’ standards
and regulation framework, we have also
begun to develop a global professional
statement on cost prediction. This will
add detail and process to the standards’
application in practice. ICMS are the first
of RICS’ global standards in quantity
surveying and cost management, marking
an important milestone for the profession.
The publication of ICMS also requires
minor alterations to be made to the RICS
New Rules of Measurement (NRM) suite
of documents to ensure the two are
compatible, and these changes are due
to be made later this year. The ICMS user
guide includes a sample mapping model
between the two.
The components of the Black Book will
continue to undergo revision to bring the
content up to date, and a new edition will
be published towards the end of 2018.
Part of this work will be the completion
and publication of the final two parts of
the Black Book.
RI CS CONST RU C TIO N
JOUR NAL
STANDARDS
Forthcoming
The role of commercial
managers in IT guidance note
n rics.org/standards
Recently published
Employer’s agent: design and
build guidance note
n rics.org/employersagentdb
Whole life carbon assessment
for the built environment
professional statement
n rics.org/wholelifecarbonps
k Zoe King MRICS (left) and Eve
Mallon MRICS (right)
Young
Surveyors of
the Year named
The annual Young Surveyor of the
Year Awards ceremony took place
on 17 November at the Hilton London
Bankside Hotel.
The Project Management winner
was Eve Mallon MRICS from
Faithful+Gould’s Glasgow office. The
winner of the Quantity Surveying and
Construction Award was Zoe King
MRICS from Turner and Townsend’s
Newcastle-upon-Tyne office.
Congratulations to both for their
success and championing diversity in
the profession.
F E B R U A R Y/ M A R C H 2 0 1 8   5

What’s that
coming
over the hill?
The traditionally conservative
construction industry needs
T
surveyors to take ownership of
impending challenges – or face
irrelevance, maintains Mark Farmer
The sense of an impending
change about to sweep
over the construction
industry shows no signs of
abating. If anything, there
are unprecedented forces
challenging the status quo in
our traditionally conservative
industry and washing over
every part of the sector,
from SMEs to the largest
consultancy and construction
supply chain businesses.
I have written in
Construction Journal before
(April/May 2017, p.15) about
the impact that this might
have on construction-related
surveyors and the urgent
need for a new, futureproofed
The profile of a modern
chartered surveyor will need
to look very different from what
we have seen in the past. If it
isn’t, I fear that our profession,
alongside others, will no longer
be relevant
skill set; but it is worth
rehearsing what I believe
are now increasingly critical
issues for members of RICS.
Digital clarity
There is no doubt that digital
technologies have created
such low-hanging, accessible
fruit that even the most
die-hard traditionalists cannot
ignore them. Do not confuse
the term “digital technology”
with building information
modelling (BIM), though. BIM
is more than the application
of software and hardware
and embodies collaborative
working, common data
environments and workflow
management. Where
technology relies on joint
efforts, our industry – however
much some would like to
say otherwise – is unlikely to
adopt it at scale or speed.
The power of digital
working must flow from initial
design development, schedule
and cost prediction through
LEA DER
to premanufacturing, on-site
assembly, construction and,
finally, asset management.
Encouraging this when our
procurement models are
traditionally fragmented and
our commercial practices are
adversarial will always be a
case of trying to make a silk
purse out of a sow’s ear.
Many of the solutions
necessary to achieve
modernisation lie with
the project management
and quantity surveying
professionals who are often
advising commissioning
clients on procurement and
on risk management, as well
as acting for all parties in the
supply chain.
Unfortunately, integrated,
multi-party working is not
something our industry has
practised at scale, and is
all too often viewed with
suspicion – often quite rightly,
given our experiences of its
misuse by parties on all sides
of transactions who continue
to deploy poor behaviours.
Force of change
What is coming over the hill
now includes transformation
that will force different
behaviours, while at the same
time all built environment
professionals, technicians
and tradespeople will need to
navigate the growing impacts
of a skills and capability crisis.
More importantly, the industry
will, I believe, be increasingly
forced by disruptive new
entrants to use different
organisational models that
are inherently more integrated
and efficient. I am already
seeing emerging models, for
instance, that will require no
traditional quantity surveyors
or project managers
and involve much less
transactional management.
An urgent programme of
change is needed now, and
RICS has to play a major
role itself in completely
reforming its technical and
professional accreditation
platform, CPD requirements
and the associated training
partnerships it has with
RI CS CONST RU C TIO N
JOUR NAL
higher and further education
institutions. The profile of a
modern chartered surveyor
will need to look very different
from what we have seen in the
past. If it isn’t, I fear that our
profession, alongside others,
will no longer be relevant.
The traditional barriers
between different professional
institutions and between
consultants and contractors
will increasingly change
and blur. Digital data and
workflows will disrupt some
of the silos in which we have
operated. RICS members
need to develop a new
proposition, adding value
for clients in areas other
than measurement, process
management, financial and
contract administration to
instead focus on interpretive
analysis, value-based
outcome procurement, waste
reduction, risk management
and predictability. They also
need to be able to offer
a human overlay on what
are increasingly likely to be
artificial intelligence-led,
digitally enabled real-estate
and construction processes.
If they are unable to rise to
this challenge quickly enough
then chartered surveyors will
face a negative disruption
rather than a positive one.
Whether you are an existing
qualified professional, a
business owner or indeed a
training provider, you should
consider what this means for
you. Ultimately, RICS needs to
show leadership in advancing
this agenda. b
Mark Farmer is Founding Director
and CEO of Cast
mark.farmer@
cast-consultancy.com
Related competencies include
Client care, Data management
F E B R U A R Y/ M A R C H 2 0 1 8   7
RICS CON ST RU CT I O N L E A D E RS H I P
JO U RN A L
Taking a lead
Between legacy projects and future uncertainties,
O
construction business leaders are presented with a
number of challenges, writes Jason Farnell
ver the past
three years, the
leadership at many
major contracting
groups has had to
deal with portfolios
of legacy projects –
that is, jobs secured
during the economic downturn that had
to be completed as the industry was
contending with building cost inflation.
Loss leaders
There are major players still coming
late into this situation, with consequent
depletion of shareholder value and the
need to recapitalise balance sheets
to sustain their viability. The role of
the leadership in these loss-stricken
organisations has been to assess each
project objectively to determine and
implement a strategy for their completion.
In parallel with this, businesses have
had to evaluate what constitutes the core
of their operation, and have sought to
divest themselves of assets that are not
considered essential to future trading – in
the process realising the cash to reinvest
and to make good their trading losses.
Leaders put in post to effect business
turnaround will invariably have been
appointed to replace the board that
presided when the loss-making projects
were secured. The market demands that
such leadership be detached, focused
on results and capable of returning a
business to an underlying profitability in
a relatively short time. But those capable
of doing so are unlikely to be suited to
managing, organising and growing a
business once it has returned to stable
profitability – managers who can turn
projects around are often not interested
or are unsuited to running restructured
businesses, so at this point we usually
require a different kind of leader.
Not surprisingly, major contractors are
determined not to repeat past mistakes
by taking on work that suits neither
their capability and capacity nor their
risk appetite. In such circumstances,
business leaders need to ensure they
have developed and articulated a clear
strategy for the type of projects the
8   F E B R U A R Y/ M A R C H 2 0 1 8
organisation will undertake, in terms
of scope, procurement route and
contracting risk, and have processes
in place to support this strategy’s
implementation consistently and
objectively. Different organisations
will identify sectors, value ranges and
contracting arrangements where they
think they can achieve consistent returns
with properly managed strategies.
Selective and specialist
It is likely that this selective and
specialist approach will create its own
organisational issues: businesses cannot
afford to be restricted by their own size
and structure when implementing their
leaders’ strategic vision. The question
will no longer be “What work do we
need to maintain the organisation?” –
rather, “What organisation do we need
to service the work available to us in our
selected markets and work streams?”
Construction and property clients
and their advisors, including end users
and developers, have also identified
that their relationship with contractors
and specialists must be different in the
future if they are to be certain about
the timing, quality and cost of project
outcomes. This has meant that there
has been a perceptible move away
from the comprehensive risk transfer
to contracting styles in which greater
control – and subsequently, risk – has
been retained by the client body.
Business leaders may shape and
structure their respective businesses
to suit their intended markets and
procurement routes, but there are wider
issues that will affect the effectiveness
of their leadership in the next decade.
Putting aside the uncertainty of the
political landscape, the construction and
property industry faces huge challenges
from an acute skills shortage, the
changing characteristics of employment
and career styles, and the allocation and
management of design responsibility.
Compelling career
Currently, 22% of people working in the
construction and property industry are
more than 50 years of age, and 15%
of them more than 60; even with rising
statutory retirement ages and pension
pressures, there will be an exodus of
skilled and experienced professionals
from the industry in the next 10 years.
The task for industry leaders is to attract
graduates and school-leavers and make
a compelling case for construction
being a career path of choice, to identify
innovations that will improve both the
professional environment and its outputs,
and to create training opportunities.
With businesses rigorously pursuing
work through selectivity and specialism,
a contractor’s ability to maintain, and
indeed the desirability of maintaining,
substantial staff resources continuously
is likely to be diminished. This, combined
with the growing trend for migrant
workers proactively developing the
CVs they wish to create, means talent
management will become increasingly
difficult. The role of leadership will be to
engage, retain and motivate individuals
who are not directly employed by them.
Over the past decade, the design and
construct contracting model has become
prevalent. However, with recent events
such as the Grenfell Tower fire and the
Robin Rigg offshore wind farm as well as
case law developments, the implications
for contractors and specialists assuming
design responsibilities have become
oppressively onerous. The challenge for
the industry leaders, from all interest
groups, will be to determine a risk-sharing
model that supports the industry’s
objectives appropriately.
An individual leader may adapt their
style to suit particular circumstances –
dealing with a school-leaver differently
to a seasoned construction professional,
for instance. But the construction and
property industry demands the opposite
of this: different leaders to deal with
changing circumstances appropriate to
the times. In an industry that is inherently
cyclical, there will always be a need for
leaders who can develop strategies
for growth, volume reduction, difficult
contracting conditions and steady-state
running. It is a rare individual indeed who
can operate effectively across these. b
Jason Farnell is Owner and Director of
Commercial Risk Management Ltd, a practising
adjudicator and an accredited mediator
jason.farnell@
commercialrisk.management.com
Related competencies include
Business planning, Leadership,
Risk management

RICS Director of Professional Standards Ken Creighton talks to
Construction Journal about what has been achieved in the past year
to establish standards for the profession, and the work that lies ahead
The way forward
Q What’s your overall assessment
of the past financial year in terms
of standards?
A Standards cover both professional
behaviour as well as the technical
aspects of chartered surveying. We
are working on standards across this
spectrum; in the past year we have
accomplished a lot.
For example, we produced major
professional statements on conflicts
of interest, which came into effect this
January. We also carried out in-depth
research on professionalism to get the
market insight that would guide our
standard-setting. Thus we have projects
focused on key issues such as money
laundering, ethics and data security.
On the technical side, we made
advances in property measurement
standards, including residential and
industrial; we also published the updated
valuation Red Book. The International
Construction Measurement Standards
(ICMS) were launched in Vancouver,
Canada, in July. This is a major suite of
international standards supporting the
benchmarking, measuring and reporting
of comparable construction costs across
the world. Moreover, land measurement
standards and business valuations are
other big technical areas where we have
made great advances in the past year.
For instance, in business valuation we
have launched the credential Certified
in Entity and Intangible Valuations
(CEIV). This is for professionals who
perform fair-value measurements for
businesses and intangible assets.
The project originally came about
after the US Securities and Exchange
Commission expressed concerns about
professionalism in valuation. Working with
other key stakeholders and professional
bodies such as the American Institute
of Certified Public Accountants and the
American Society of Appraisers, we
jointly launched CEIV.
STA NDA R DS RI CS CONST RU C TIO N
JOUR NAL
Q What has been the biggest
challenge you have faced?
“
The challenge is
A Our biggest challenge relates
to how we actually deliver these
standards as a profession. Creating
to have standards
standards is just the first step. The adopted and used
challenge is to have those standards
adopted and used in the marketplace
so that they benefit
so that they benefit the market in the
public interest. Each standard starts
the market in the
as simply words on a page; they need public interest
the professionals to do the work for the
benefit to be realised.
We need the conferences where they residential and industrial buildings. Now
will be discussed and explained, the entities with warehouses, residential
training and all the related support to and office space can compare space
ensure professionals and the market consistently across their portfolio.
realise the benefits of adopting and We can develop the skills in the
using these standards. The challenge profession and the numbers employed
is not just to create the standards, but by getting companies, governments and
have them make a positive impact. This individuals to adopt our standards and
is the role of RICS, and where we need hire the professionals to use them. That
to succeed. in turn makes people want to become
professionals, maintain their professional
Q Where are the opportunities for
adoption of standards and growth
of the profession?
status and take advantage of the training
and products we offer. It’s an opportunity
to connect those standards through
adoption to growth of the profession.
A There are a few specific areas
with great opportunities. I
mentioned ICMS: we have already had
There is a lot of good work ahead. b
amazing take-up, with major firms and
governments around the world using
them to compare costs on their projects.
For example, the province of Ontario in
Canada, the Irish government and the
UK government have all been looking
at ICMS to examine and compare their Ken Creighton is RICS Director of
spend on infrastructure projects. This is Professional Standards
a real opportunity for RICS, as we add kcreighton@rics.org
value by speaking to the world about
how ICMS can benefit such a substantial
part of the market.
Another example is the International Related competencies include
Property Measurement Standards Client care, Conduct rules, ethics and
(IPMS). Along with the IPMS for Office professional practice,
Buildings, we are soon publishing an Legal/regulatory compliance
updated professional statement to cover
F E B R U A R Y/ M A R C H 2 0 1 8   9
RICS CON ST RU CT I O N B L ACK B O O K
JO U RN A L

On the side
of the agents
With the role of employer’s
agent still seen as ambiguous,
Kelvin Hughes introduces
a new RICS guidance note
designed to clarify matters

F
rom the Standard Contractual clarity of the employer’s agent is that there
Form of Building The purpose of the note is to prevent are only six references to it in the whole
Contract with any confusion by providing clear and contract, the primary reference being
Contractor’s comprehensive professional guidance to the “employer” rather than their
Design 1981 to and recommendations to anyone who agent. The agent’s role is relatively
the current JCT acts as an employer’s agent on a JCT straightforward, however: they act on
Design and Build Design and Build Contract, or in Scotland, behalf of the employer in all matters,
Contract 2016, on an SBCC Design and Build Contract. unless the employer states expressly in
the role of the employer’s agent has While it is not mandatory for RICS writing to the contractor that they would
been seen by many practitioners as, at practitioners to comply with the guidance like to act for themselves, or to appoint
best, confusing. note, the publication identifies what is others to act for them on certain aspects
The recently published Employer’s seen as best practice and what in RICS’ of the contract.
Agent: Design and Build guidance note opinion constitutes a high standard of Having said that, there are certain
(www.rics.org/employersagentdb) professional competence in that role. As actions that will always remain the
is the result of a long development such, the note relates to the latest version responsibility of the employer:
process involving a working group of the JCT Design and Build Contract and 1. providing possession of the site, as this
chaired by Andrew Smith, comprising the Scottish equivalent, as well as current belongs to the employer
quantity surveyors and project legislation and any relevant case law. 2. making payment to the contractor in
managers, with additional support from Probably the main reason for the compliance with payment notices; the
the RICS Professional Group. apparent confusion regarding the role employer and the contractor are the

Image © iStock
1 0   F E B R U A R Y/ M A R C H 2 0 1 8

contracting parties, so no one else can
pay the contractor
3. issuing a notice to the contractor
following a non-completion notice, stating
that the employer may require payment
of, or may withhold or deduct, liquidated
damages. The role of the employer’s
agent is to issue payment notices without
deduction for liquidated damages,
although the employer’s agent must
advise the employer of their rights and
responsibilities in this respect.
The guidance note also compares the
seemingly similar but in reality very
different roles of the architect or contract
administrator under other JCT contracts,
as well as the project manager under
the NEC contracts, thus identifying the
unique role the employer’s agent plays.
APC alignment
The note covers the various issues at
three levels. These align with those of
the APC, and will therefore be familiar to
RICS practitioners and other readers:
bb general principles (Level 1: Knowing)
bb practical application (Level 2: Doing)
bb practical considerations (Level 3:
Doing/Advising).
Although the guidance note refers to
best practice in the post-contract stage,
Level 3 also includes reference to
pre-contract activities such as tendering
and contractor selection, which are seen
as quasi-project-management duties
under the contract, rather than those of
an employer’s agent.
Level 1 examines the background
to design and build contracts as a
RI CS CONST RU C TIO N
JOUR NAL
procurement method, and the general
principles of the employer’s agent role.
Level 2 then considers in some detail
the timing of the employer’s agent’s
involvement, their relationship with the
employer and their powers under the JCT
Design and Build Contract. In doing so, it
establishes a parallel with the architect’s
or contract administrator’s role under the
other JCT contracts, and with the project
manager’s under the NEC contracts.
This section goes on to consider the
specific duties of the employer’s agent
under the JCT Design and Build Contract,
such as giving instructions, dealing
with quality issues and instructing and
evaluating changes.
As previously mentioned, references
in the contract are to the “employer”, so
the guidance note clarifies the role that
the agent plays in acting on their behalf.
Payment processes and procedures
under the contract also refer to the
Housing Grants, Construction and
Regeneration Act 1996, supplemented
by the Local Democracy, Economic
Development and Construction Act 2009.
Level 2 then concludes with reference
to the employer’s agent’s role in terms of
claims, termination, practical completion
and disputes. In addition to the specific
duties under the contract, Level 2 also
considers the general management
duties of the employer’s agent in terms of
project control documentation, meetings
and project status reporting mechanisms.
Level 3 in turn considers the role and
responsibilities of the employer’s agent
and their relationship with the employer in
the context of the law of agency, as well
as the relationship with the contractor. It
also looks at pre-contract activities such
as tendering and contractor selection.
While it is not uncommon for the same
person to advise the employer at the
pre-contract stage, this is seen as a
project management function rather than
the true role of an employer’s agent under
the JCT Design and Build Contract. b
Kelvin Hughes is Senior Partner
at KH Consultants LLP
kelvin.hughes@khconsultants.co.uk
Related competencies include
Contract practice, Procurement and
tendering, Project administration
F E B R U A R Y/ M A R C H 2 0 1 8   1 1
RICS CON ST RU CT I O N
JO U RN A L
Clean bill
of health
David Low celebrates the success of
the Department of Health’s construction
P
procurement framework ProCure22
roCure22 or P22
is a construction
procurement
framework
administered by
the Department
of Health (DH) to
develop and provide
NHS and social-care capital schemes in
England. It represents the third iteration
of the DH framework that provides design
and construction services for use by the
NHS and social-care organisations.
This continues to build on the
principles of its predecessors by
streamlining the procurement process
and helping clients, principal supply chain
partners (PSCPs) and their own supply
chains develop stronger partnerships,
increasing efficiency and productivity
while enhancing clinical outputs for
patients and environments for staff and
visitors. The frameworks have provided
more than 850 publicly funded NHS
projects at a value of £6bn over the past
15 years.
P22 is a suitable approach for the
following types of work:
1 2   F E B R U A R Y/ M A R C H 2 0 1 8
P R O GR A M M E M A N AGEMENT
Building information
model of a repeatable
room in 3D
bb service planning or
reconfiguration reviews
bb major works or refurbishments
bb minor works, in which each task
value does not exceed £1m
bb refurbishments
bb infrastructure upgrades – roads,
plant and so on – and non-healthcare
buildings such as car parks
bb feasibility studies and masterplanning.
Principles and performance
The first framework, ProCure21, was
developed in response to the challenges
laid down in:
bb the Latham Report, Constructing the
Team; this was the 1994 report on the
government and construction industry’s
review of the latter’s procurement and
contractual arrangements
bb the Egan Report, Rethinking
Construction, the 1998 report of the
Construction Task Force on the scope
for improving the quality and efficiency
of UK construction.
Both of these aimed to promote
collaborative working and develop
integrated teams to address the public
sector’s poor performance in respect of
project completion, and specifically to
improve outcomes in terms of time, cost,
quality and patient experience.
These defining principles still hold true
for P22, where experienced, integrated
design and construction teams are
essential: not only are healthcare and
social-care projects technically and
logistically challenging, they must also be
flexible to adapt and accommodate the
ever-changing needs of the NHS and an
ageing population.
Under P22, 852 projects have been
completed with time and budget
compliance consistently more than 90%.
Client satisfaction has also consistently
exceeded 80% and there has been no
litigation on any project, saving the NHS
more than £150m. This represents a step
change in public-sector construction,
where in 2001 only 26% of schemes were
completed on time, and 28% on budget,
with 3% of the capital programme being
spent on litigation.
NEC contracts
Use of the NEC form of contract on the
first framework in 2002 was a novel
approach for the NHS. In particular,
its encouragement of proactive
project management and robust risk
management, with payments based
on actual costs, was a relatively new
concept. Clients and their advisors were
typically inexperienced in using such
contracts, necessitating significant
training and development to support
them. Over the years and frameworks,
their expertise and knowledge has
developed exponentially, reflected in
improved performance.
Nevertheless, use of NEC3 during the
pre-construction phase with associated
activity schedules can still present a
cultural challenge for designers and
others new to the framework. As a
consequence, there is an ongoing training
provision for clients, stakeholders, PSCPs
and their supply chains, provided by the
DH. A recent addition to this is e-training,
available from the P22 online portal.
Other key features
P22 has enhanced the best features of
its predecessor frameworks, offering a
fast-track, compliant route to market for
clients, as well as benefits such as:
bb free usage
bb free VAT advice service
bb free training and
implementation support
bb free access to and use of design
Images © Department of Health/Kier

information from previous projects
bb free use of award-winning repeatable
room designs
bb post-occupancy evaluation and
project-end review templates
bb proven contract templates, developed
and improved over 15 years.
Control process
Clients will manage their own framework
projects, but will follow the proven
procurement process and P22 contract
template, which is based on and
complements NEC3 Option C. Both
process and contract templates are
bespoke, to mirror the NHS business
case approval process, allowing clients
to ensure their projects remain on budget
at each stage. There are break clauses,
without penalty, throughout the design and
development pre-construction period.
Clients use the process and the
partnership with their supply chain to
ensure as much value as they can, often
establishing long-term relationships with
them to add value on their objectives.
When a final design is agreed, costed and
market-tested, the PSCP and client agree
a guaranteed maximum price (GMP) for
the project, limiting client liability to price
increases, risk and poor performance.
P22 uses a pain–gain process that
provides incentives for both parties to
work collaboratively to minimise costs. If
the scheme is completed below the GMP
then the PSCP and client split the first
5% of the underspend – the gain – taking
half each. Savings in excess of 5% of the
GMP go 100% to the client; conversely,
the PSCP share for anything more than
100% of the GMP is 100% – that is, the
PSCP takes the pain.
Repeatable rooms
This programme was a particular
highlight of the P21+ Framework. It
involved expertise from each PSCP and
their primary supply chain designers,
prioritising the most common rooms in
Example of a
repeatable room
hospital designs to produce exemplary,
evidence-based designs that could be
adopted and repeated nationally. This
has resulted in savings in design and
construction cost and time, and an
increase in off-site prefabrication. It also
means that staff become familiar with the
layout of and equipment in a room, which
in turn improves safety and the quality
of patient care. NHS trusts that use
repeatable rooms have saved time with
clinical approval and sign-off due to the
rigorous development process.
The repeatable room development
process has involved many stages, to
ensure a robust evidence-based design.
Literature and design reviews have
been compiled, with patient workshops
adding a user perspective to emerging
best practice. Expert review panels were
convened, with representatives from
the Royal Colleges, the NHS and the
construction industry, to comment on
the initial design proposals. A series of
technical reviews were undertaken to test
the designs, using real-life processes and
full-size mock-ups.
From a standing start, the P21+
programme developed 11 repeatable
rooms for the acute sector in 18 months.
These have been followed by repeatable
bedroom designs for functional and
organic mental health conditions, and
accompanying components suitable for
mental healthcare environments.
Standard components
Along with the repeatable rooms, a
range of standard components, based
on those most commonly recurring in
hospital designs, has been developed in
conjunction with suppliers, following a
competitive process. This provided
cost-effective facilities for hospital
projects that also complied with DH
building notes.
Many standard component agreements
offer additional benefits such as extended
guarantees and savings of up to 30%.
RI CS CONST RU C TIO N
JOUR NAL
The latest round of standard component
agreements are in the procurement stage
with suppliers, and will be in place when
the current agreements expire. These
current supplier agreements cover a
range of products, such as:
bb hard and soft flooring
bb suspended ceilings
bb sanitary ware
bb lighting
bb partitions
bb doors and ironmongery.
The Construction News Awards 2016
recognised the collaboration undertaken
to develop the repeatable rooms
and standard components, and after
review by a panel of 70 expert judges,
Procure21+ won the Supply Chain
Excellence award.
The judges commented: “The focus
on reaching all parts of the supply chain,
as well as customers, hospital staff and
patients, is both innovative and
market-leading. Through collaboration,
the team of PSCPs has been able to add
value, improve design and eliminate waste
to deliver outstanding results.”
Construction strategy
The DH construction procurement
team has worked closely with other
government departments under the
Government Construction Strategy (GCS)
2010–2015, where it saved 15.1% on
capital construction costs, and this work
continues under the current strategy.
Many of the initiatives such as repeatable
rooms and standard components formed
a key part of the DH’s action plan under
the GCS, and this work will continue.
A current priority for the construction
procurement team at the DH is to embed
building information modelling (BIM)
Level 2. Although the framework strives
to provide a streamlined and consistent
approach to BIM, making it easier for
clients and industry alike to adopt new
digital information opportunities and
efficiencies, it does remain one of the
more significant challenges. b
David Low is P21+/P22
Cost and Policy Manager
david.low@dh.gsi.gov.uk
Related competencies include
Client care, Contract practice, Design
economics and cost planning, Procurement
and tendering, Programming and planning
F E B R U A R Y/ M A R C H 2 0 1 8   1 3
 RICS CON ST RU CT I O N ACC O U N TI N G P R I N C IPLES
JO U RN A L

Giving a
good account
Joe Martin of BCIS offers a
clearer view of accounting for

R
inflation in construction projects

ecently, projects
such as Crossrail,
the Battersea
Power Station
redevelopment and
the Hinkley Point C
nuclear plant have
all been in the news
because of increased costs. Reports
have tended to be negative; however, it
is important to understand the causes of
such inflation, many of which may have
already been accounted for as part of the
planned delivery and contracting process.
Likely causes of cost increases that
may occur during delivery must be
considered and correctly accounted
from the a project’s outset, so a sufficient
budget can be set. As Crossrail has
noted, its Tier-One contracts – those that
are directly employed by the client – were
not awarded as fixed-price jobs and the
contract value at award did not reflect
the risks retained by Crossrail Limited, for
which an allowance had been allocated.
Figure 1
General example showing tender prices, input costs and market conditions
240
220
Risks come in many forms, but RICS constructor’s costs during the delivery
new rules of measurement – order of cost period. Long contracts may contain
estimating and cost planning for capital market-price risk for major subcontracts
building works 2nd edition, April 2012, as well, which are to be placed at various
identifies and defines the following: stages in the delivery period.
bb inflation risk
bb design development risk The different movement in tender prices,
bb construction risk as measured by the BCIS Tender Price
bb employer change risk Index (TPI), and underlying resource
bb employer’s other risk. cost, measured by the BCIS General
Building Cost Index, is shown in Figure 1.
Inflation risk also comes in various This also demonstrates the BCIS Market
forms of its own, including changes in Conditions Factor, which rises when
the tendering context and in the cost of prices are rising faster or falling slower
resources, so it is important to identify than costs, and falls when costs are rising
who will carry the risks of inflation and faster or falling slower than prices.
how they will be accounted for. Inflation in market prices will reflect the
underlying cost of resources, but will also
Identifying inflation risks be affected by tendering conditions and
Inflation will affect the out-turn price in changes in the market, such as increased
two ways. prices associated with demand, the
bb There will be inflation in market availability of particular resources, and
prices until contracts are agreed with the effect of major projects on specialist
the constructor. works, trades, work-package and
bb There will also be inflation in the labour-only subcontractors.
These demand and supply pressures
can be local, national and international,
occurring, for example, when other
countries buy major quantities of raw
materials. Demand and supply can also
be affected by how the UK is viewed
1.15 by markets; for instance, the fall in the
1.10 value of sterling has affected the cost of
Market conditions factor

imported materials, while the supply and

200 1.05 cost of EU labour will be influenced by
how attractive it is to work here rather
180 1.00 than in other countries.
Index

It is important to identify who will carry

160 0.95
the risks of inflation and how these will
140 0.90 be accounted, although ultimately, the
client will pay for the increased costs or
120 0.85 the contractor’s assessment of them. The
client will always bear the risk of inflation,
100 0.80 too, up to the point where the contracts
BCIS All-in TPI BCIS General Building Cost Index BCIS Building Market Conditions Factor are agreed; they may or may not take this

Image © Alamy
1 4   F E B R U A R Y/ M A R C H 2 0 1 8
 RI CS CONST RU C TIO N
JOUR NAL

risk during the delivery period, but will

always pay either for the inflation or for Figure 2
the constructor assuming the risk. Structural steel and ready-mixed concrete (based on Price Adjustment Formulae
On projects with a fixed-price contract, Indices, Series 4 – Civil Engineering and Related Specialist Engineering)
the inflation risk should allow for the 115
movement in tender prices to the point 110
where the contract is agreed and for
105
increases in costs that the constructor
will bear during the delivery period, which 100

Index
may also include some market risk. 95
On projects that have a single 90
fluctuating-price contract, the client also
85
takes the risk of underlying inflation in
resource costs during the delivery period. 80
The most common way to reimburse this 75
cost is by the use of indices. 70
-14

On projects with multiple contracts let

-17
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-1 6

-17
-1 5

15

-1 6

16

-17

17
-14

-14

-1 5

-1 5

-1 6

-1 6
-14

-14

-1 5

-1 5
14

Jul-
Jul-

Jul-
Jul-
Jan

Mar

Ma y
Mar

Sep

Jan
Mar

Jan
Ma y

No v

Jan
Mar

Ma y
Sep

No v

Ma y

over a protracted period, the inflation risk
should consider the delivery programme,
and the risk of any changes to the
content of the individual contracts and
the timing of their award. This will shift
the balance of the market-price and
resource-cost inflation impacts.
On large, long-term projects, the
forecast of the programme of the
contract awards, the overall profile of
expenditure and the expenditure profile in
each contract are often as important as
the forecasts of inflation.
Accounting for inflation
Contracts with inflation adjustment
clauses differ in the way that they
account for this, but most commonly
they apply indices, agree a weighting of
resources at the outset and calculate a
single index for each valuation. This has
a distorting effect on longer contracts,
though, where the resources used at the
beginning differ from those used towards
the end.
Figure 2 shows the differential
movement in the cost of ready-mixed
concrete and steelwork over the period
from January 2014. It shows that the
effect of steel prices on the cost of
the project would differ considerably
depending on when it was incurred,
but using a standard set of weightings
might under- or over-recompense the
contractor for inflation.
BCIS produces the Price Adjustment
Formulae Indices (PAFIs) that were
devised by the industry for use with
inflation adjustment clauses, but a variety
of other indices are occasionally used
(www.rics.org/pafi).
The use of a single generic index may
not represent the inflation experienced
on a project; modelling an index based on
the resources and expenditure profile of
a particular project will therefore reduce
No v
Sep
4/CE/13 Ready-mixed concrete
the risk of inflation for both the contractor
and the client.
BCIS has published six golden rules for
choosing an index:
1. be clear about what you want to
measure and how you want to apply it
2. choose an index measuring the
costs that most closely matches the
characteristics defined in point 1
3. if you are using the index to link costs
in a contract or agreement, be clear
that it meets your needs, particularly in
respect of:
• the frequency of publication –
monthly, quarterly, annual
• your updating and revisions policy
4. understand the inputs to the index and
the calculation methodology
5. read the notes and definitions
6. never choose an index because of its
past performance.
The PAFIs have been designed to
allow for price adjustment on contracts
such as NEC, under its Option X1 Price
adjustment for inflation; BCIS and
Crossrail produced a case study on
how PAFIs were applied on the latter’s
contracts (www.rics.org/paficrossrail).
Separate PAFI series are available for:
bb building
bb civil engineering
bb highways maintenance
bb specialist engineering.
Forecasting inflation
Assessing the risk of inflation on a project
requires forecasts of:
bb the contracting profile, to identify
when contracts will be let
bb how inflation in the delivery period will
be dealt with on each contract
4/CE/ST/02 Structural steelwork materials
bb expenditure profile on each contract
bb market prices reflecting the different
resources for each contract
bb inflation in costs for the resources to
be used during each contract.
Identifying when different forecasts should
be applied will change the inflation risk.
An assessment of the impact of delaying
or accelerating the award of contracts
should form part of the risk analysis.
BCIS publishes five-year forecasts
for tender prices, market conditions and
resource costs for both building and civil
engineering (www.bcis.co.uk). In addition
to these, BCIS produces bespoke
forecasts for clients and contractors on
individual projects, sectors and locations
(www.rics.org/bcisforecasts).
An inflation forecast that reflects
the resources and the programme of a
particular project will provide a better
understanding of the inflationary risk than
a generic forecast. b
Joe Martin is Lead Consultant at BCIS
jmartin@bcis.co.uk
Related competencies include
Commercial management of construction,
Design economics and cost planning,
Procurement and tendering, Project financial
control and reporting, Risk management

F E B R U A R Y/ M A R C H 2 0 1 8   1 5
RICS CON ST RU CT I O N
JO U RN A L
Knowing
by site
Joseph Rizzuto and Indira
Chauhan explain that fostering
positive relations between industry
and academia can provide valuable
A
learning opportunities for built
environment students
t the University
of West London
(UWL), visits to
construction sites
form an important
part of the
student learning
experience,
because they help develop an
understanding of how theoretical
knowledge is applied in practice and
provide an invaluable insight into industry
practices and the work environment.
A site visit for students on built
environment courses typically begins with
a presentation from the site management
team, with a health and safety site
induction that is followed by a guided
tour and commentary on the construction
works in progress.
This article considers the relevance and
scale of construction site visits on built
environment courses, and how academics
and industry support and organise them.
Fostering links between the construction
industry and academic institutions is
essential, as allowing students to visit
important construction works will inspire
the next generation of professionals.
Students on built environment
degrees are required to gain a good
1 6   F E B R U A R Y/ M A R C H 2 0 1 8
E D U CATI O N A N D TR AINING
understanding of building construction
methods and processes. In the first
year of study on the BEng Civil and
Environmental Engineering, BSc
Construction Project Management, BSc
Building Surveying and BSc Architectural
Design and Technology, modules such as
Building Technology, Building Materials,
Civil Engineering Construction, Quantity
Surveying and Civil Engineering Practice
underpin the use of traditional building
materials and the construction processes
associated with them. These modules are
significantly enhanced by well-organised
site visits.
Scope and scale
The scale of the sites visited by UWL
students varies in nature, and has
included high-rise commercial buildings
of concrete and steel-frame construction,
excavations for foundations and piling,
and complex demolition projects. Each
visit is generally unique in nature, but
all enable a better understanding of
site operations. Staggered site visits
at different phases of a project allow
students to see the gradual progress of
construction works.
On one visit, students were taken to a
large residential apartment construction
project on the waterside in west
London when the ground works were
in progress. The management team
provided commentary on the initial site
development activities, covering the
site appraisal and in particular where
the existing services were located. To
avoid costly disruption and having to
decommission these services, the team
explained the challenges they would face
and the methodology they would use.
During the site tour, students could
see continuous flight auger-piling rigs
in action and piles being cast. Students
were subsequently invited to the next
phase of the project some months later,
where they saw the superstructure
construction in progress and studied the
project drawings, enabling them to relate
to the site as well as the environmental
constraints. The innovative responses
that had been made to these constraints
were highlighted by the site team.
On another site visit, the students saw
how a self-contained formwork system
of slip-forming was used to construct
a reinforced-concrete lift shaft in a
high-rise development. They watched
the rising of the formwork at the steady
rate of 300mm per hour that allowed
for the continuous pouring of concrete,
Images © Joseph Rizzuto and Indira Chauhan
 RI CS CONST RU C TIO N
JOUR NAL

demonstrating the differences between

the use of slip-form techniques and the
jump-form system that was covered in
the classroom.
At a specialist demolition project,
meanwhile, students were given an
informative presentation by the project
manager on the different demolition
techniques available. The site was in
a congested area of central London
and surrounded by listed buildings,
so the students were able to gain an
appreciation of why specific demolition
methods were chosen. The experience
of observing actual demolition from a
viewing platform reinforced their learning
of demolition protocols.
By attending a range of site activities
on projects of diverse scales, students
are able to see construction works in
progress, can understand factors such as
environmental issues, or will experience,
for example, the effective management of
cranes adjacent to railway lines.
After each visit, a debriefing session
is held back in the classroom in the
form of a group discussion. This allows
students to reflect on the various
project processes, site constraints and
approaches used. As part of the module
UWL students after
their tour of the site assessment, students are required to
write a reflective essay on their visit,
highlighting any unique challenges and
how these were managed.
UWL students reviewing A similar set of visits takes place
project drawings before in the second year of study at UWL,
a site tour often to complex construction works,
where students’ increased knowledge
and understanding allows greater
appreciation of the techniques used.

Student perceptions
Construction videos and simulations
give students a two-dimensional or
three-dimensional experience of various
processes. However, it is important to
consider whether these provide the right
stimulus for understanding the scale and
impact on an actual site. A recent straw
poll of a number of first-year students
on the built environment courses at
UWL suggested that site visits were a
remarkable and distinctive experience that
no classroom learning could replicate.
One student commented: “It is great
to be able to ask the site team questions
and get an insight into the complexities
of project planning and management.”
Another student, who could see the
benefits of exploring real projects in
action, observed: “Sometimes, it is hard to
imagine the dimensions and scale of work
that takes place on construction sites.
A visit enables a better visualisation of n

F E B R U A R Y / M A R C H 2 0 1 8   17
 RICS CON ST RU CT I O N E D U CATI O N A N D TR AINING
JO U RN A L
n how things actually work.” Many students
who have experienced virtual site visits
and then compared these to actual visits
indicated that the live sites provide a
much more rewarding experience.
Many full-time students said that
they had an unforgettable experience
when they stepped the other side of
the hoardings on their first site visit.
The signage had an impact, and vividly
reinforced the importance of health,
safety and welfare on site. The site
office environment and the variety of
construction materials and processes
used all contributed to this experience.
Part-time students on the courses
shared similar views to their full-time
peers on the importance of site visits
as part of their learning on the
construction-related modules. Planning
constraints, materials and site traffic
management, and use of specialist
technology are some of the areas that
these students valued the most.
Most students expressed a preference
for visiting sites in groups of not more
than six because it was then easier
to shadow the person giving the tour
while being able to hear what was being
explained to them.
Constraints and challenges
Accommodating large class sizes on
site visits poses a major challenge, as
it requires the course leader to find
appropriate sites with sufficiently large
management teams. This often means
groups are split, with possibly two or three
senior managers involved in showing them
around. This may be a deterrent for some
project managers, as such visits invariably
require more detailed organisation,
additional resources and probable
disruption to the works.
Other challenges include finding
a steady supply of ongoing local
construction projects that, ideally,
tie in with the theoretical material
being covered in the classroom. Sites
located close to university premises are
convenient as this means less travel
time, minimising timetable disruption.
Accessibility is often problematic,
however, as many construction
companies offer site visits to projects that
can be located hundreds of miles away.
Professional bodies such as RICS,
the Chartered Institute of Building and
the Joint Board of Moderators (JBM)
help with site visits for students on
construction and engineering courses
on a regular basis. These visits are open
to students from all UK universities,
but places are allocated on a first
1 8   F E B R U A R Y/ M A R C H 2 0 1 8
come, first served basis. The visits are
organised with painstaking care taken by
management teams to give an overview
of the project and an explanation of the
processes. Students from different year
groups often take up such opportunities;
unfortunately, due to the popularity of
such visits, only limited numbers are able
to do so.
Risks and hazards
Safety is a top priority while visiting sites,
as construction activities are subject to
a number of significant risks. These can
be a result either of unique construction
features with an unpredictable
environment, or any complex processes
being used. Although visits to
construction sites are not prevented
by health and safety legislation, it is
essential to carry out risk assessments
to ensure the safety of visitors – indeed,
all those on site. Thus, all visits entail
a risk assessment being completed by
both the site team and the organising
academic. As an essential part of this,
all UWL students are fully equipped with
the appropriate personal protective
equipment, which fully complies with
health and safety requirements.
Site teams are sometimes justifiably
reluctant to allow visitors on to certain
construction sites. This may be due to
the specialised risks encountered, such
as confined spaces or asbestos removal;
work involving heavy plant movement or
very high noise levels are other factors
that restrict possible visits.
Outreach
In addition to the professional bodies
mentioned above, many large construction
companies have established links with
academic institutions and are able to
offer visits to readily accessible sites. The
Industrial Advisory Boards and Industrial
Consultative Committees at university
schools or departments provide a platform
to work with academics and offer project
visits for students. For some companies, it
is simply a case of finding and establishing
the right contact in the academic
institution to organise such visits.
All major contractors have corporate
and social responsibility policies in place
as part of corporate governance, and
one of the core principles of these is to
build relationships with communities.
Encouraging site visits can provide
the opportunity to enhance these
relationships, so establishing and
fostering good links between industry
and academia is a way to ensure that a
structured approach is taken.
Effective learning
A live construction site can engage
students as active learners and have a
long-lasting impact on how they learn. The
effectiveness of site visits as a learning
vehicle is enhanced when experienced
professionals accompany students.
Such professionals on UWL’s Industrial
Consultative Committee continue to
support and organise site visits.
The learning opportunities provided by
a live site can be enriching, particularly
if several visits to the same project at
different stages are possible. Along with
site operations and project management
practices, the complexities of a project
and how it evolves over time will be seen.
Site visits also provide an excellent
opportunity for construction companies
to showcase what industry has to offer.
They allow students to engage directly
with the construction process and to
speak to members of site and project
teams. These experiences contribute to
the development of more confident,
work-ready graduates.
We, as the authors, would like to urge
all chartered surveyors working on
projects to reach out to local universities
and help with site visits to projects that
are near a university campus. b
Joseph Rizzuto is Head of Engineering and
Built Environment in the School of Computing
and Engineering at UWL
joe.rizzuto@uwl.ac.uk
Indira Chauhan is Course Leader for the BSc
(Hons) Building Surveying in the School of
Computing and Engineering at U WL
indira.chauhan@uwl.ac.uk
JBM’s Guidelines for Developing
Degree and Further Learning Programmes
http://bit.ly/2Ba5kIL
Related competencies include
Construction technology and environmental
services, Design economics and cost planning,
Health and safety, Programming and planning,
Team working

Growth chart
Sebastian Chambers identifies three key factors
A
crucial to progress in the construction industry
t a recent
round-table
discussion,
CEOs from the
construction
and building
products sector,
investors and
advisors deliberated the challenges
and opportunities they foresaw over
the coming years. While investors and
advisors talked about cyclical risks in the
context of Brexit, all the industry leaders
focused on two things: skills shortages
and productivity challenges.
This may have been characterised as a
split between London and the rest of the
UK. Construction in the capital – where
most advisors and investors are based
– has had a good run over the past few
years, with a sharp rebound after the
financial crisis and strong investment
in commercial property, infrastructure
and housing. However, London is now
experiencing something of a mid-cycle
correction, particularly in the market for
luxury apartments, while much of the rest
of the UK eventually started to recover
from the recession in 2013. There is
now a strong outlook in areas such as
affordable housing and infrastructure
outside the capital.
Cyclical risk is ever present in the
construction sector, and is something for
which industry leaders and advisors must
prepare. However, there are also other
important factors that affect the sector
and the success of businesses in it.
To gain detailed insight, management
consultancy CIL has recently conducted
research among 140 construction firms
“
The consistent
undersupply of
skilled workers in
construction goes
back to 1998
C O MMER C IA L MA NAG EMENT
of varying size, covering a wide range of
skills, locations and sectors. This shows
a clear correlation between successful,
growing companies and three key
factors: employee engagement, strong
relationships with subcontractors, and the
use of technology (http://bit.ly/2yqT31G).
Skills for success
We separated the firms into three
categories. First there were share
winners, businesses with sales growth of
more than 5% per annum. Second came
the share decliners, businesses with
falling sales; and third, there were the
non-movers, those with sales growth of
between 0% and 5% a year.
Turning to the possible reasons for
these positions, the skills shortages now
faced by the sector are not new. Even
allowing for the recession, there has
been a consistent undersupply of skilled
workers in the construction industry since
the beginning of RICS records in 1998
(rics.org/ukconmarksurv). This looks set
to continue as, according to research
from the Office for National Statistics
last year (http://bit.ly/2B5r9w5), the
number of workers in the construction
industry is still 200,000 below its 2008
peak, while trainee numbers keep falling.
CIL’s research shows that the
companies taking market share
consistently reported a more engaged
employee base, compared to those who
are losing ground: 41% of market share
winners described their employees as
highly engaged, compared to just 12% in
the market share decliners. Engagement
is key to winning the battle for talent.
The ability to develop strong
subcontractor relationships through
collaborative working is another key
factor for success – 29% of market
share winners strongly agreed that they
have loyal subcontractors, compared to
just 10% in the share decliner category
(http://bit.ly/2D4TzV6).
Those firms most willing to engage
with technology and new building
practices will be better able to encourage
efficiencies and increase sales, thus
RI CS CONST RU C TIO N
JOUR NAL
improving performance. The research
showed that 31% of market share winners
reported that their on-site processes are
becoming much more efficient, compared
to 15% of market share decliners.
The tight labour market in the sector
also means the more enlightened firms
that focus on recruitment and retention
of talent are best placed to succeed.
Of the market share winners, 27%
report a well-structured apprenticeship
scheme, compared to 13% of market
share decliners. When it comes to hiring
graduates the growing firms are again
ahead of the pack, with 24% recruiting
from higher education institutions,
compared to 7% of those in decline.
With just one in 20 construction
workers being female, successful firms
also place much greater emphasis on
engaging with women, and 36% are
actively working to improve the work
environment for female staff. Training
is also crucial to develop expertise and
improve productivity – and again, the
market share winners far outpace the
lesser-performing firms in this regard.
Winning the war for talent
Much of the UK construction and
infrastructure sector is growing robustly,
and there is an increasing shortage of
skills to meet demand. For this reason,
companies that are taking market
share are winning the war for talent, are
maintaining a loyal subcontractor base
and are promoting productivity.
CIL’s report makes it clear that
executives and investors need to take
key performance indicators on team
engagement seriously. For every initiative
around technology, order books, sales
pipelines, operations and productivity,
there needs to be an equivalent emphasis
on recruitment, diversity, career
development and retention. b
Sebastian Chambers is Partner and Head of
Construction and Building Products Practice at
CIL Management Consultants
schambers@cilconsultants.com
Related competencies include
Business planning
F E B R U A R Y/ M A R C H 2 0 1 8   1 9
RICS CON ST RU CT I O N
JO U RN A L
Bargaining
chips
Chris Green explains why negotiation
is vital to construction, and how to
improve your skills while upholding
T
ethical and professional standards
he valuation
of variations,
extensions of time
and a project’s
final account
should all be
matters of fact and
entitlement, as in
the amount of time or money calculated
exactly in accordance with the contract
change control mechanisms. However,
it is commonplace in construction and
infrastructure to have to negotiate
agreements, particularly where the
form of contract contains variation and
extension of time mechanisms requiring
one party or the other to make a fair and
reasonable assessment of entitlement.
In these circumstances, it is helpful to
develop a clear negotiating strategy
that will enable the parties to reach an
amicable and equitable agreement.
Establishing positions
The level of disagreement between the
parties will dictate the strategy required
to reach an amicable settlement. The
following five positions describe the level
of disagreement and the appropriate
intervention strategies for resolving them.
Note that an amicable agreement will
not be reached until the parties move to
position 1.
1. Proactive problem-solving
Both parties agree what the problem
is and want to solve it within agreed
timescales without blame. This requires
a general openness about people and
information; the parties establish a mutual
problem-solving team that focuses on
building consensus. No intervention
strategy is required.
2. Disagreement
Self-protection is uppermost in the
2 0   F E B R U A R Y/ M A R C H 2 0 1 8
P R O J E CT M A N AG E M E NT
parties’ minds, although there is some
desire to help. Effort tends to be
concentrated on inadequacies in the other
party, with growing emotional pressure.
Parties will withhold critical information.
Intervention strategies will focus on
trust and team-building, to move up to
proactive problem-solving.
3. Contest
The parties have developed false
perceptions and assumptions and
dialogue is uneasy.
In this case, the intervention strategy
is to create a structured approach with
firm ground rules, to help move towards
proactive problem-solving.
4. Fight
The parties have developed a desire to
withdraw or to hurt and humiliate each
other. Winning on principle becomes more
important than proactive problem-solving.
The intervention strategy will be for
each negotiating team to exert strong
leadership and overcome aggressive
factions in their number, then to move up
through the phases above.
5. War
The parties seek to destroy each other
using any means. Intervention is needed
to enforce separation of the parties and
expel disruptive team members.
Preparation
It is important to spend time ahead of
negotiation to prepare properly. A few
issues to consider are as follows:
bb examine the causes, possible
interventions and range of outcomes of
the dispute
bb try to establish the other parties’
interests and goals in order of priority
bb think about who should attend the
preliminary meeting
bb consider the venue, equipment and
seating plan for the meeting.
You should ask yourself these questions.
bb What facts are missing, and what facts
will be required for the negotiation?
bb What documents need to be prepared
for whom, by when? Do they need to be
exchanged in advance?
bb What are the time limits for the
negotiation, and what are the implications
of breaching them?
bb What are the current target settlement
and worst case reservation numbers and
other variables?
bb What are the past patterns of
interaction between parties, and what
might go wrong during the sessions?
bb What are the preferred negotiating
patterns for the other party?
bb What authority to settle do the parties
have, and will they need to consult with
third parties during the negotiation?
bb What doubts will parties air to support
their views and destabilise your position?
bb What are the possible and probable
outcomes for this negotiation?
Opening the negotiation
Negotiations inevitably start with opening
offers from the parties and can be
typified as detailed in Table 1.
It is important to understand how your
opening offer will be viewed and the
effect it will have on the opening positions
of the parties. There is then the question
of how to make the opening offer, which
can be done in four different ways.
1. High or low, soft: this involves the
offer of a high price, but with a hint of
willingness to negotiate; or the offer
of a low price, but the indication of a
willingness to increase. These offers will
be just inside the insult zone, but will elicit
questions for clarification from the other
side, on which negotiations can build.
Image © Shutterstock

Table 1
Range of opening offers
Non-starter offer Insult zone
Dangerous, as parties will: Typified by lack of objective
• walk away criteria and weak
• find alternatives justification. Start
• seek revenge negotiation here if the other
• litigate party knows there is a deal
• do themselves to be done and is set up for a
reputational damage. protracted negotiation.
2. Reasonable firm: this will be received
as an opening offer if credibility has
previously been established. It can also
be used to close down an element of the
overall deal. It is often more acceptable
from more senior negotiators, and is a
good way to open if you have sound,
objective criteria from which to work.
3. No offer – start with
problem-solving: this is a good
technique for increasing the range of
variables available to the parties.
4. No offer – start with silence:
sometimes it’s just good to hear what the
other party has to say.
Common mistakes
Inexperienced negotiators are liable
to make several mistakes during a
negotiation. A few of these to watch out
for are as follows.
Preparation
Failing to prepare in advance of the
negotiation will weaken your position.
Assembling all facts and evidence in
support of your position ahead of the
negotiation helps to affirm and strengthen
your arguments. It is also worth reflecting
on any constraints that may be imposed
on any potential settlement such as
internal governance and examining
possible weakness in your position.
People
Make sure you invite the right people
to the negotiation. Remember that
you will need to create a proactive
problem-solving forum to be successful.
Employing people specifically to prove
the other side wrong, such as lawyers or
experts, can be a mistake. Make sure you
have a person who has authority to make
a settlement.
Tactical mistakes
It is easy to lose sight of the negotiating
process and focus purely on the
substance and detail of issues in dispute.
Credible offer
These offers are starting to
look interesting, but a better
deal is still possible
elsewhere. Both parties
need to add extra variables
with high value to the other
side and low cost to
themselves.
Try to maintain an oversight on the
whole process and do not get fixated on
defending singular issues or staying on
difficulties for too long. Try to emphasise
the points on which agreement has been
reached and set up a monitoring process
to record individual agreements as
progress is made.
Conduct
Be aware of the behaviours you and
your team display. Failing to listen, acting
on assumption and using questions
poorly can exacerbate a dispute. Avoid
talking about “justice” or “fairness” and
instead focus on the market price for
the resolution of the negotiation. Finally,
avoid personal insults and the targeting
of individuals.
Dealing with difficult people
From time to time, we all come across
difficult people with whom we need to
negotiate successfully. The following
strategies can help to overcome some of
the difficulties.
Don’t react
Three natural reactions are to strike back,
to give in or break off the negotiation.
But remember your interests in the
negotiation, remind yourself of the tactics
for dealing with difficult people, and take
time out to recover from conflicts.
Step to their side
Listen actively to what is being said and
acknowledge the point that the other
party is making. Understand why they
are making it, so that you can agree but
without conceding.
Don’t reject the proposition, reframe it
Ask problem-solving questions such as
“How about …?” or “What if …?” that invite
collaboration, rather than questions that
seek concessions such as “Am I right?” or
appear to challenge and contradict such
as a blunt “Why?”
RI CS CONST RU C TIO N
JOUR NAL
Make it easy to say “yes”
Ask for opponents’ ideas and build
on them. Offer them a choice: don’t
overlook people’s basic human needs,
and don’t assume there is a fixed
outcome over which both parties must
fight for their share.
Make it hard to say “no”
Ask what will happen if no agreement
is reached. What do you think your side
will do? Warn the other party about
potential undesirable consequences, but
do not threaten what your last resort will
be. Use third parties to help or limit what
your side will be able to do. And finally,
seek mutual satisfaction, not victory.
Concluding negotiations
As the negotiation progresses, it is
helpful to record agreements made
progressively, to narrow down the areas
of disagreement. This will help both
parties see the advances being made,
and will form the heads of terms to help
draft a settlement agreement if required.
It is worth remembering that we
are likely to have to deal with people
with whom we disagree on a regular
basis, so it is worth developing
good negotiating skills and building
collaborative solutions to preserve
otherwise valuable relationships.
Finally, reflect on RICS’ global
professional and ethical standards
(rics.org/ethicsprofessionalstandards):
bb act with integrity
bb always provide a high standard
of service
bb act in a way that promotes trust in
the profession
bb treat others with respect
bb take responsibility. b
Chris Green is Group Commercial Director
at J. Murphy & Sons Limited
chrisgreen@murphygroup.co.uk
Related competencies include
Communication and negotiation, Conflict
avoidance and dispute resolution procedures,
Contract practice, Data management;
Managing people, Team working
F E B R U A R Y/ M A R C H 2 0 1 8   2 1
RICS CON ST RU CT I O N B I O GR A P H Y
JO U RN A L

Carrie de Silva tells the inspirational life story

of Irene Barclay, the first woman to qualify as a
chartered surveyor, who did pioneering
work in social housing and slums

First

I
among equals
rene Barclay was slums; she also met Miss Maud Jeffery, found “stingy”, even by the standards of
born Irene Turberville who was a housing manager for the the time.
Martin to a socialist Crown Estate Commissioners and
family in Hereford formerly secretary to social reformer Her own practice
in 1894. Her father, Octavia Hill, one of the founders of On qualification, she spent six months
Basil Martin, was the National Trust. Maud ensured that working with Louis de Soissons, architect
a non-conformist Irene became an early member of the of the new Welwyn Garden City, but
minister whose Association of Women House Property she soon set up on her own in Finsbury
memoirs, An Managers, and encouraged her to study Square in London. She ran the practice,
Impossible Parson, for surveying exams. largely in partnership with Evelyn Perry,
set out the philosophy of public service, Irene also took evening classes in Somers Town – the area around
faith and wry sense of fun that informed alongside Evelyn Perry, the second St Pancras, King’s Cross and Euston
her upbringing. woman to be admitted to the profession stations – for more than 50 years.
She was the eldest of four, though and they noted, with ill-concealed Irene’s working life was spent improving
her youngest brother died in childhood. mischief, the embarrassment of their social housing in the capital, and she was
Another brother, Kingsley, was occasional tutors at having women attending lectures involved from the earliest days with the
lecturer in politics at the LSE, a on drainage and sanitation. St Pancras Housing Association; she
committed pacifist and editor of the She was employed throughout her went on to become its secretary in 1925
New Statesman from 1930 to 1960, later training by the Crown Office on a salary and continued to hold the office for
publishing a memoir called Father Figures that reached £140 per year – which she almost half a century.
that gave further insight into the Martins’
background and family politics.
Irene attended Hereford High School,
which she loved, until 1911. She then
boarded at Monmouth High for two years,
where she was “miserable in the extreme”.
Having grown up in reasonable comfort,
the family moved to Finchley in 1913 in
somewhat straitened circumstances,
although the tertiary education that
followed was a happier experience for all
three surviving Martin children.
She gained a BA (Hons) in history
in 1916 followed by a diploma in social
science in 1917, both from Bedford
College, part of the University of London.
In his memoir, her father notes that “it was
a matter of no little pride to me and my
wife that we succeeded in sending our
three elder children to university in spite
of our tiny income”.

Surveying exams
Work experience she undertook during
k The Barclay family (clockwise from left): youngest son Anthony; Irene; husband
her diploma introduced her to London’s John; older son Michael

Image from flyleaf of People Need Roots, Irene Barclay, 1976

2 2   F E B R U A R Y/ M A R C H 2 0 1 8

Women in surveying
We are 99 years on from the passing
of the Sex Disqualification (Removal)
Act 1919. This lifted the bar on
women entering certain professions,
largely following the social, political
and economic fall-out of the 1914–18
war, but also due to considerable
lobbying in the wake of Bebb v Law
Society [1914] 1 Ch. 286, in which
women were deemed not to be
“persons” as defined by the Solicitors
Act 1843.
Membership of the legal and
medical professions is now around
50% women or more, but in
surveying the figure is still only 14%.
This fact would, doubtless, surprise
and disappoint Irene Barclay, née
Martin, the first woman to qualify as
a chartered surveyor, who joined the
Valuation Division of the Surveyor’s
Institution in 1922.
While there are challenges to
achieving a more diverse and
inclusive profession, initiatives such
as the RICS Diversity and Inclusion
conference and the Inclusive
Employer Quality Mark aim to
redress the balance. But even the
most optimistic forecasts predict that
it will take at least two generations to
achieve gender parity in surveying.
The society’s first project was to
purchase and refurbish seven houses,
though she herself later favoured
demolition and redevelopment over
refurbishment once the extent of damp,
dry rot, poor structure and bedbug
infestation became apparent.
A key feature of housing association
developments managed by Irene and
Evelyn, which distinguished them from
council programmes, was rehousing
within communities to retain social bonds,
an ethos reflected in the title of her 1976
book on her working and, to some extent,
personal life, People Need Roots.
Irene and her partners also achieved
some of their success through shrewd
financial management, for example,
running an in-house workforce for
general maintenance, only subcontracting
large structural programmes and even
then ensuring that all materials were
purchased direct.
Supporting tenants
Irene was active in fundraising and
gave many talks where she bridled at
“
Irene said she would be sorry if no more
women surveyors followed her, “as it really is
a job in which a woman may be very useful”
and countered perceptions of the slum
population, describing these attitudes
in a letter she wrote to the Spectator as
“a libellous insult to the mass of poorer
working-class people”. Along with the
St Pancras work, Barclay’s firm helped
establish and manage other housing
associations, managed council estates,
and undertook both private professional
work and some voluntary activities.
She also supported tenants in their
struggles with landlords and loan sharks,
which led to the establishment of a loan
club and furniture shop. In addition, she
worked to provide accommodation for the
elderly as well as nurseries, play areas,
seaside holidays and a children’s home in
the country, near Ockley, Surrey, with her
politics and her deep compassion always
manifest in practical measures.
Slums
In the decades of mass slum clearance,
Irene and Evelyn broke new ground
with their surveys, commissioned both
privately and by local authorities; these
were unique in the extent of their internal
surveying and engagement with residents,
as opposed to the more cursory, external
surveys conducted for councils. This not
only gained tenants’ support but provided
depth to discussions of housing need.
Irene was a prolific speaker,
broadcaster and writer, often contributing
to the left-leaning press such as the
Fabian Quarterly or the New Statesman.
Writing and speaking invitations increased
considerably on the publication of the
influential wartime report, Our Towns:
A Close-Up, produced in 1943 by the
Women’s Group on Public Welfare, of
which she was a member.
This report had been commissioned
by the National Federation of Women’s
Institutes when evacuation disclosed the
poor hygiene, nutrition and behavioural
standards of a small proportion of
evacuees to be of concern. She
also edited the annual journal House
Happenings after the war.
Irene lacked time in her early career
to keep up with professional groups: the
Soroptomists, the Society of Women
Housing Managers (SWHM) and, of
course the Surveyors’ Institution, which
RI CS CONST RU C TIO N
JOUR NAL
would later become RICS. At the end
of the war, however, she became chair
of the SWHM, when she prompted the
dropping of the “W” and the introduction
of men.
After the war, she continued to
campaign for better housing and joined a
number of public committees and boards,
expressing the hope that she had been
chosen on the strength of her skills as a
surveyor and not as a token women.
Unlike many career women in the
first half of the 20th century, Irene
married and had two sons (see image,
below left). Her husband John Barclay
was a committed pacifist and member
of the Peace Pledge Union who was
prosecuted during the Second World War
for encouraging disaffection among the
troops. In 1966 she was widowed, and in
that year she also received an OBE for
her work with housing associations.
She retired in 1972 and died in Toronto
in 1989, having moved to Canada a few
years earlier to be near her younger son
Anthony. She is commemorated among
the faces on the Somers Town Mural on
Polygon Road, London NW1, and also by
name in Irene Barclay House in Eversholt
Street, around the corner from the mural.
In a letter to her old university tutor
in 1925, she said she would be sorry “if
no more women surveyors follow on, as
it really is a job in which a woman may
be very useful”. In later decades she
voiced disappointment that, even though
her practice had trained many women
housing managers, relatively few went on
to qualify as surveyors. She would still, I
venture, be shocked that in 2018, 86 in
100 chartered surveyors are men. b
Carrie de Silva is Principal Lecturer in Law and
Taxation, Harper Adams University, and a trainer
at surveying training provider BlueBox Partners
cdesilva@harper-adams.ac.uk
Extended digital and print versions of this short
biography are available for £5 from
Carrie de Silva; please email her at the
address above for ordering details
F E B R U A R Y/ M A R C H 2 0 1 8   2 3
RICS CON ST RU CT I O N A DV E RTI S I N G
JO U RN A L

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2 4   F E B R U A R Y/ M A R C H 2 0 1 8

Shy Jackson reviews a 150-year
old ruling on nuisance, highlighting
its applicability to modern land
and construction cases
Escape
notice
R
ICS was founded in 1868 and
has been developing ever
since. Land and construction
law has likewise changed
in that time, although one
important survivor from
those days is the House of
Lords’ judgment in Rylands v
Fletcher [1866] L.R. 1 Exch.
265. This holds that the
occupier of land who brings
and keeps any substance
there likely to do damage if it escapes is bound to prevent its
escape and is liable for the consequences should it do so, even
if there has been no negligence.
That liability in such cases will be for private nuisance, which
is an unlawful interference with a person’s use or enjoyment of
land. In that case, the defendants constructed a reservoir and,
unknown to them, the land contained mines that connected to a
colliery operated by the owner of neighbouring land. It was held
there was no negligence but that the defendants were liable
when, on the reservoir being filled, the water flowed through
the old mines into the neighbouring land. The Rylands rule has
developed since 1866, but it is still relevant and applicable;
though, as the following cases show, careful consideration of the
facts in each case is needed.
Use of land and escape
In order for liability to arise, the use has to be unnatural, and the
substance has to escape from one land to the other. In Transco
v Stockport Metropolitan Borough Council [2003] UKHL 61,
water escaped from a pipe carrying it from mains to storage
tanks in a block of flats belonging to the local authority, causing
the collapse of an embankment supporting a gas main. It was
held that the rule did not apply in this case, as it was impossible
to regard the supply of water by the council to the block of flats
as anything other than a natural or ordinary use.
Liable parties
Liability is not limited to the owner of the land – it extends to the
person who controls or manages the dangerous substance, and
it could therefore make a contractor liable for the escape of, for
example, building materials or fuel kept for its plant. There are
some defences that can be raised, including where the injured
party caused the escape, or where the escape was due to an
act of god or a third party.
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LEG A L RI CS CONST RU C TIO N
JOUR NAL
Unforeseen circumstances
In order to make a claim for damages, the harm must also
be foreseeable. In Cambridge Water v Eastern Counties
Leather [1994] 2 AC 264, water in a borehole was
contaminated by solvent seeping into the ground from a
tannery that was located 2km away. It was held that the use
of land was unnatural, but that the harm caused could not
be regarded as foreseeable.
A more recent example is the decision reached in
Northumbrian Water Ltd v Sir Robert McAlpine Ltd
[2013] EWHC 1940 (TCC), when the statutory sewerage
undertaker sued a contractor after concrete that had been
poured as part of the piling works got into private drains and
caused a blockage in a neighbouring property.
Neither party was aware of the private drain until an
inspection of a 1908 plan of the connection, which was
found in the drainage archives at the Newcastle Discovery
Museum. The judge decided that as the contractor was not
negligent, it had not been established that the existence of
the drain was reasonably foreseeable and, therefore, neither
was the damage to the sewer.
Conclusion
As can be seen, liability under the rule in Rylands is not
easy to establish, but any liability that may arise cannot be
ignored. The rule can impose a liability on contractors and
owners of land and construction practitioners, and while
the law has developed substantially over the past 150 years,
there are still circumstances in which it might apply as part
of the general tort of nuisance. b
Shy Jackson is Partner at Pinsent Masons
shy.jackson@pinsentmasons.com
Related competencies include
Contract practice, Project administration
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