Reports & Management Plans - Friend or Foe?
It may seem like stating the obvious, but knotweed survey reports (and subsequent management plans arising from them) are REALLY IMPORTANT! OK, the obvious reason is that they are a description of what knotweed was found, where, what the implications are and what solutions/remedies are available etc., and an opportunity to demonstrate your expertise and provide estimates/quotations for contract works.
But did you know that Knotweed Reports & Management plans legally define your liability to your client AND that many of these liabilities arise and continue long after you have written and submitted them? Also, that many of these responsibilities arise whether or not the client instructs you to conduct any work? It’s a subject that deserves a little of your attention so, please read on…
NB: All that follows should not be construed as legal advice etc.
Be mindful of the law when writing your report
There is a common law (Tort) principle that states that if you offer a service or goods etc., and you claim to be a specialist or an expert in that field, you have what is termed a ‘Duty of Care’ to your client to ensure the information and advice you give is of a standard that could reasonably be expected from an averagely competent practitioner of said service. Not necessarily the ‘best in class’, but ‘below par’ (as judged by your peers or the court) would definitely leave you open to civil claims if your client later experiences a loss as a result of some defect in either your survey, or your survey report – yes, these can be two different things!
The main reason why this aspect of law is so important is that it does not rely on the existence of a contract. A FREE SURVEY is just the same as a ‘paid’ one and the simple act of accepting an instruction (to survey for the presence of Japanese knotweed) creates a responsibility and a potential liability to claims of negligence (see above).
Survey Reports – ‘friend or foe’?
The second part is more straightforward (as much as the law can ever be) and that is contract law. Here we tend to be talking about the Sale of Goods Act and other such statutes which can only become a source of liability where there is a transactional relationship (usually money, in return for goods or a service). I think most of us are aware that the key risk here lies in the goods or service being fit-for-purpose, or to borrow and modify a well-known catchphrase, ‘as described on the tin’! If you say, without conditions, you will ‘eradicate’ knotweed within 2 years and don’t achieve this outcome there will have been a breach of contract.
Rather than have sleepless nights over these conundrums, lets see how the careful writing and composition of your survey reports can reduce your exposure to unforeseen pitfalls:
Repeat the client’s instructions
This creates the context for everything that follows. A typical phrasing could be “Thank you for your instructions to inspect the gardens & grounds of your property at the above address for the presence of Japanese knotweed”. You should also mention any relevant historical information which may have a bearing on the site/survey/report (e.g. previous knotweed works etc.) and whether the client has given you permission to conduct exploratory digging or brush removal etc.
Include a limitations clause
This sounds a bit negative but actually its usually just a statement regarding what the client can and can’t expect from the report, and some or all of it could be placed in an Annex as long as you make clear reference to it in the main body of the report. Firstly, the scope is important. Is the survey for Japanese knotweed-only or for other INNS too? If the latter, we’d strongly recommend you limit the species which are specifically included as it is extremely unlikely that all 77 listed in our useful summary of both ‘Schedule 9’ and EU IAS species will be recognised.
Make sure the extent of the survey is clearly defined
If it’s purely a surface, visual survey, say so! If there are overgrown areas preventing clear sight of the ground, ensure the implications of this (incomplete coverage) are stated etc. Finally (but not exhaustively), if it’s a mid-winter survey and/or if there is clear evidence of recent ground management in some or all areas, make absolutely sure the client is made aware that the absence of evidence of knotweed is not the same as the absence of knotweed (deliberately hiding knotweed or knotweed management in the past is a popular pre-selling activity for vendors!).
If we can assume that the survey is conducted with due diligence and care, there should be no risk of latent liabilities for the completeness of the survey. Except BE AWARE that, given the ability of Japanese knotweed to spread rapidly from adjoining areas, it could be considered negligent if you do not make reasonable attempts to inspect adjacent areas too. If you can’t, as above, make the client aware that this affects the scope of your findings overall (again, none seen doesn’t mean “none there”….).
To end this cautionary tale (which we hope you find useful) the rest of the Report/Management Plan should be as accurate and reliable as possible and include as a minimum:
- good plans/drawings
- clear discussion of the management options (pros and cons)
- detailed description of the works proposed and planned execution dates
- when Management Plan update reports will be issued
- when Completion certificates/Guarantees/IBGs can be issued
- the costs and payment plans
- contract T&Cs – some more detailed considerations are in Paras 6 and 16 (and otherwise more generally) of our Japanese Knotweed Code of Practice.
So, best friend or worst enemy?
So, to return to the rhetorical question in the title, it can of course be both! On the one hand, a professional report carefully prepared and smartly presented is an asset to your business (your ‘friend’) and of value to your client. On the other hand, the world in which we work is full of potential pitfalls and your well-intentioned effort to provide clients with a ‘quick quote’ can come back to haunt you (your ‘enemy’).
One of the PCA’s oldest technical Guidance Notes is DP1 – Report Writing (originally aimed at the damp proofing sector, hence the DP) so this is a subject which has always been close to our hearts. We hope to bring you something similar tailored for the need of the Invasive weed group soon.
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