What Went Wrong? Breach of Contract in Landscape Projects
This is the sixth in a series of articles, showing that it is easier to learn from someone else’s mistakes than your own, each following a similar format, analysing project failures as recorded by expert witnesses commissioned to produce court compliant statements for use.by the court system.
The rest of the series has concentrated on specific physical projects, and the reasons for the failure of a scheme by analysing construction techniques and working practices.
This article takes a look at the legal ramifications of failing to comply with the wording of a written contract, either produced by a contractor or the customer, resulting in a Breach of Contract.
Most breaches of contract fall under the Consumer Rights Act 2015, and may include;
1. Material Breach – a major breach that undermines the entire contract, allowing for immediate termination and compensation claims.
2. Minor/Immaterial Breach – where a minor part of the contract is broken, and damages may be claimed, but not terminate the contract.
3. Anticipatory Breach – where one party announces, before the completion of a contract, that they will not fulfil their obligations.
Legal action may be taken, provided that the victim of the breach can prove that a valid contract existed, that they had performed their side of the contract, whilst the other party had failed to meet their obligations.
Damages may be awarded against the offending party if ordered by a court. These may be full compensation, or additional costs added if there are extenuating circumstances, or a likely further breach involving negligence on the part of the defendant.
Two cases, both genuine, help to illustrate the diverse nature of a Breach of Contract claim.
Case One – Walling project in Southern England
The property was a large detached 1950s house, with a reasonable size garden, subject to a complete landscape makeover, with the site cleared, and a full design implemented.
The landscaper, operating as a design and build company, agreed to undertake the project in two separate operations; one, design and build all hard landscaping works, including paving and walling, with all construction materials (except sand, ballast and cement) to be either reclaimed or recycled. This stipulation and agreement were the overriding factors in selecting the contractor.
Works progressed well, with several walls, all free standing (not retaining) forming a series of ‘rooms’, each with an intended theme (subject to planting plans) and purpose, and areas of paving linking the rooms.
Patios and raised beds were designed into the larger areas, and things were going well, until the customer saw some wrapping material around a pack of bricks, which indicated that they were in fact, ‘replica’ antique bricks, often referred to a ‘Farmhouse Blend’.
These are particularly attractive bricks, with mellow shades and a lime covered appearance, making them suitable for traditional country garden style projects. All of the walls had been constructed using these bricks, and the client had been delighted with the works thus far.
The customer immediately stopped the works, and called in an independent consultant/expert witness to provide her with a report confirming the provenance of all of the materials used on site.
The bricks were confirmed as being the only non-reclaimed building materials used on site, and when questioned regarding the outcome or resolution being sought, the customer wanted all of the bricks to be changed.
When it was pointed out that, if the bricks were to be destroyed, they would have a future use as drainage material, but if they were to be salvaged, they would become reclaimed by virtue of the fact they would have become second-hand.
It was not necessary for the consultant to point out the facts of the situation – leaving her with a dilemma.
It was eventually agreed that the walls could stay, and as the Farmhouse bricks were the same value as reclaimed, the contractor would pay for the expert report by way of compensation.
Case Two – Property in Gloucester
Another design and build landscape project, this time a new-build detached house on a small private estate with gated entrance. The owners were a young couple, who enjoyed entertaining.
The garden was designed with all ‘mod cons’ including outdoor kitchen, patios and seating areas, hot-tub and firepit, together with an array of audio-visual equipment including sound system and large television screen – all in the garden.
Due to the complexity of the layout, requiring large volumes of infill material, especially to the planting beds, the contract allowed for the import of screened topsoil to BS3882:2015 to be assessed on the completion of works at an agreed amount per cubic metre.
Access to the site, not only from the front garden due to tight turning circles and lack of space, plus difficulties in entering the sloping site (three flights of steps) and general cramping of working areas, the question of importing topsoil was delayed.
In the meantime, in a field immediately outside the rear garden of the property, a farmer had deposited a large pile of rich, dark brown, fertile topsoil, obviously taken from elsewhere on the farm site.
The contractor approached the farmer, and agreed to purchase an amount of topsoil to be used in the garden project.
The beds were duly filled, quickly and easily, by wheelbarrow across the short distance between the mound and lower area of the garden which were due to be planted.
Planting works were completed, and the project ended by clearing from the site.
Within three weeks – this being springtime – a forest of weeds appeared in all of the beds, and within six weeks, plants were being overwhelmed with couch grass, dock leaves and dandelions.
Although the customers gave permission for the contractor to use the handy farm topsoil, they had no idea regarding quality and weed seed issues.
Following a report from an expert witness, who was obliged to condemn not only the topsoil, but also all of the plants that had been infested with pernicious weeds, both roots and seeds.
In court, the solicitors argued for compensation under the Consumer Rights Act, but also claimed for negligence.
Negligence falls under Civil Law (known as Tort), the definition of which is a failure to act with reasonable care, causing damage, loss or injury. The goal is to compensate, not punish the offender.
The duty of care has to exist, and that duty breached and the breach must cause foreseeable damage or cost.
In both of these cases, compliance with the working practice, specification and adhering to the words of the contract would have saved much time and trouble. In the case of the topsoil violation, the costs were extensive and embarrassing for the landscape company, who chose to ignore their professional skills and obligations to follow Industry Best Practice and meet British Standards in the most obvious manner.
