Garden Designer Interview Framework and Legal Awareness Guide for Professional Practice
As architects do not sell gardens, so garden designers do not sell gardens. Their role is to provide the concept, ideas and strategic plans and specification to enable others to build their visions into reality.
As designers, we have only our ideas and skills – and the ability to express and communicate them to others – to sell.
Having spent many years designing and constructing gardens in the domestic sector, since retiring from physical contracting and moving into consultancy work, especially as an accredited expert witness for more than thirty years, I am keen to offer advice and guidance based on hundreds on genuine claims and prevent designers from legal pitfalls that may not appear problematic at first sight.
This guide covers;
- How to structure initial client contact.
- How to protect your time and money.
- How to assess client suitability
- Legal responsibilities during early stages
- Red flags that may arise.
Many customers tend to see designers as inspirational artists, who love their subject so much they are more than happy to offer their skills and knowledge freely – not as professionals running a business.
Unless you are willing to provide those skills to others without remuneration, only in the expectation and hope of reward, you should charge for your time from the outset.
Kitchen designers will only provide a ‘free design service’ in the express or implied expectation of installing the units and worktops. Design and Build Landscapers do not offer free designs, but only as part of the project contract, with the preliminary design stages costed and charged for as a separate part of the package, with all future design work charged for under the same documentation as additional design input as necessary.
Designer / Client – Initial Contact
It is essential to establish and record in writing, the way the initial contact was made by the client, as the answer may have a strong bearing on the format and pathway all future contact is progressed.
For example, if the client makes contact via your website, you will have a good idea of what they are expecting from you based on the wording and ambience of that site. Do you clearly state your rates and working methods, or rely on mood boards and images to promote your work? How much of a step-by-step working practice guide do you offer?
If the client met you at a Flower Show, having taken and retained your business card, they will have formed a favourable opinion of your style of design, and envisage something similar in their own garden.
Similarly, if you were recommended by a friend or relative of the client, you will have a good idea of the style of garden they are looking for, and hopefully, an idea of the likely costs involved.
I prefer to start a client information base from the outset, recording all available material, including contact details, perhaps a Google search on their public status, street map showing potential parking availability, aerial images of the rear garden, plus any emails that have been sent as a rolling record of mutual communications.
All of this information should be retained as part of your internal professional records – as it is your database and evidence of all communications and client instructions maintained as a contemporaneous record.
I recommend the production of a current, up-to-date, Establishment Document, containing details of your practice, including Limited Company number (if applicable), bank details, insurance policies, with insurers names and policy numbers and status, together with your membership numbers of any meritorious professional organisations (e.g. British Association of Landscape Industries (MBALI), The Association of Professional Landscapers (MAPL), Society of Garden and Landscape Designers (status) or Professional Garden Consultant’s Association (MPGCA).
This document to be sent by mail, together with a copy of any marketing material you may have, together with a letter confirming your appointment (allow seven days) for the initial site visit. These documents help to create a solid structure to your practice, ensuring that you have prewarned the client of your working methods, fees and payment terms. If they change their minds and cancel, you will not have wasted any time.
If they continue with the appointment, you will arrive having been formally ‘introduced’ and both Parties will have established they wish to work together in harmony.
Many people think that interviews are one-sided. In garden design, both Parties need to assess risk, by understanding the requirement for mutual due diligence.
Introducing Mutual Due Dilligence
Domestic home owners have certain legal obligations to protect anyone who enters their property, owing them a duty of care to ensure that no harm can befall them through negligence or danger by trip hazards, falls or similar property defects.
Once the owner has commissioned a firm to carry out construction works on that property, the onus is placed on the contractor for the duration of those works.
Once a designer has been commissioned to provide a design service, that duty falls to the designer in respect of ensuring that all proposals meet safety standards as laid down either in British Standard descriptions or industry best practice methods. The commission should be made in writing, the designer remaining liable until they have completed their work up to an agreed point.
This transfer of liability is only possible for domestic property owners. Anyone owning a commercial property e.g. dental practice, factory or office remains liable for safety at all times.
In essence, the purpose of the interview stage between a designer and the client is to establish clear assessments of risks, evaluating feasibility, budget realism, client reliability regarding payment and willingness to enter into a formal agreement based on certain facts and figures.
Both Parties are agreeing competence, professionalism and legal compliance as the end goal of any interview structure.
Bearing this in mind, it is important that your Terms of Engagement are comprehensive, and cover all eventualities. I have often seen dispute cases where the designer has not ensured sufficient protection by including terms which may be considered nebulous or allow for interpretations that may be used against them as they appear too onerous.
Terms of Engagement are the essence of any contract, and should be expected to be pedantic. (see www.landscapelibrary.co.uk for a comprehensive set of Ts and Cs for Designers)
All agreements to move from the preliminary introduction to becoming a professional engagement programme including terms and inclusions/exclusions e.g. mileage charges, disbursements etc should be made in writing and signed by both Parties.
This agreement should be broken into clear stages;
- Initial consultation.
- Site evaluation and survey.
- Concept design and outline of ideas.
- Decision regarding next step – terminate agreement or move to engaging a contractor.
Any further stages to be laid out once that decision has been made, as you then move onto a formal, legally structured document known as The Construction (Design Management) Regulations 2015 (CDM) Phase Plan.
The Construction (Design Management) Regulations 2015 (CDM) Phase Plan
I consider the CDM regulations to be the single most useful document ever in the landscaping world, as it provides all Parties with a formal agreement that all sides have to sign into and abide by without any questions of bias.
Whilst the general format revolves around health and safety, with risk assessments and method statements providing the foundation for the phase plan, each involved Party is named and identified, along with their role in the project, starting with the customer.
It is essential that the person responsible for any decision making and finances is nominated as such, even if that person is not the owner of the property. The phase plan should clearly show;
- Name and address of the property.
- Name/s and address of the property owner (if different from above)
- Name of the person responsible for matters of contract. (Although this may be more than one person e.g. Mr and Mrs Smith, it is preferable to have only one person nominated if possible, to reduce confusion at a later date)
- Name and details of the Garden Designer (or Design & Build Landscaper)
- Name and details of the Landscape Contractor (once known)
- Names and details, including their respective roles in the project (e.g. electrician, irrigation or lighting experts etc to be added as and when commissioned.
The Designer becomes known as The Principal Designer, and they will remain responsible for a project during the design stages.
Once a Landscape Contractor has been instructed in writing, they become The Principal Contractor, responsible for all other trades that may be involved during the works progress.
If the Designer is time or stage limited e.g. survey and concept plan only, they must sign OUT of the Phase Plan, or sign in and out each time they return to work on the scheme, ensuring that each stage has a sunset clause on every occasion.
Similarly, any ‘trade’ working on the site will sign in and out once their input has been completed.
This is essential, as if the project management element of CDM is lost through lack of clarity, anyone who has left the site having completed their work may remain liable for any future disputes if they remain on the Phase Plan.
Customer Interview – Mutual Engagement Philosophy
Having established a rapport between yourself and the customer, it is important to arrive on site for the initial interview prepared for all eventualities and weather conditions.
It is widely held that first impressions are made within a few seconds of meeting. For this reason, avoid any strong smells, especially garlic and heavy perfume/aftershave as that will be the immediate image they will hold for the duration of the visit and thereafter.
Please be aware that not all interviews are successful, especially if one of the Parties is clearly not in agreement with another. It is not unusual to find that the same level of enthusiasm for spending money on the garden is not shared by other members of the family. This should be treated as a Red Flag, and sorted before proceeding too far with a project.
Ensure you have all possible tools and equipment with you in your vehicle, including survey and measuring devices, compass for orientation purposes, spare batteries and fully charged camera/phone, plus heavy-duty boots and plenty of writing implements.
Also, any marketing material, including examples of previous work, or stage by stage images showing how a scheme evolves. You may wish to take a laptop for a presentation, although these can be cumbersome if more than one person is involved in the interview.
I take a case full of photographs of completed work (as a design and build contractor) which are handed round and those which appeal to the viewer are placed by them in a separate pile. I can then gauge the type of project they are seeking by the ambience of the image.
It is essential that you obtain a budget from the customer. It is best to use the term ‘investment’ as it sounds more appropriate for an interview.
If you require a costings template, visit www.landscapelibrary.co.uk for the Top 100 Landscape Prices Guide, which may be shown to the customer and advise them of the true costs of landscaping works.
You will require certain information from the customer regarding the state and condition of the property, especially concerning matters of Planning. Is the property subject to any restrictions including being in a National Park or Area of Outstanding Natural Beauty which may include caveats and limitations on work.
At the initial interview stage, it is important to get a firm statement regarding time limitations on your involvement. If you are unable to meet their programme, now is the time to withdraw before committing to an unreasonable timescale.
It is important to agree your terms of engagement, including payment stages and time scales, taking care not to allow design stages to conflate, not being paid for previous work, then producing the next tranche without have settled the previous account.
PROFESSIONAL NOTE; ‘Never assume – always ascertain’.
What services do you want to offer?
Not every designer wishes to offer a full Design and Specification Package, and this factor should be discussed at an early stage.
- Are you content to produce fully specified cross-sectional construction drawings and plans?
- Are you willing to undertake research on planning matters, or dealing with environment agencies on behalf of the customer (acting as their Agent)?
- Are you able to recommend three landscape contractors and deal with their contracts on behalf of the customer?
- Do you wish to separate any planting supply and install from the landscape construction element of the scheme under a formal contract as their nominated contractor for that element of the work?
- How many site visits would you consider essential (weekly, fortnightly etc) to represent the customer when dealing with the construction works?
All of these practical questions need to be aired as soon as the design programme gets under way, and the customer needs to know how much help they can expect from you, agreed in writing from the outset.
These formal questions and answers prevent any future misunderstanding and client/designer conflicts.
PROFESSIONAL NOTE; ‘If it is not written down, it didn’t happen’.
Common Problems that Occur During the Interview Process
- Allowing the customer to use phrases that cannot be qualified or quantified, such as a ‘Wow Factor’, no/low maintenance garden as they may later claim that you have not met their brief.
- Working with vague budgets, which can lead to unrealistic designs or expectations.
- Working without properly signed contracts which may lead to disputes regarding performance and undeliverable timescales.
- Allowing scope or mission creep; not finishing one tranche before working on another before the last one has been agreed and signed off/paid.
- Recognising that design work falls under the Consumer Rights Act 2015, which places obligations for performance under the scope of reasonable care and skill.
- Ensuring an accurate chain of command has been agreed between all Parties, with named individuals being responsible for agreed works, including liaison and legal duties regarding matters of Building Regulations and Planning Permits.
- Agreeing sunset clauses including termination notices should either Party wish to conclude the contract at any time.
Communication is key.
A successful landscape project begins and ends with close communication between all Parties. A strong working relationship with mutual respect between customer, designer and contractor will produce high quality results, with no corners cut and any likelihood of dissatisfaction and disputes a distant possibility.
This communication may include aftercare advice from the designer (plant care) and contractor (maintaining natural materials and ensuring they receive appropriate cleaning and servicing.
At the end of the project, the completed CDM Phase Plan should be handed to the customer (which is designed to remain with the property to be handed to any new owner) together with any warranties and guarantees from manufacturers in respect of goods and products e.g. pumping equipment or lighting instructions.
A successful landscape project doesn’t begin and end with landscape design – it involves INTEGRITY THROUGH ASSOCIATION, with everyone playing their part.
