Incorporating Building Conservation Journal

Building
Surveying Journal
Dilapidations Setting the agenda

OPINION
UPDATE
LEGAL BRIEFS

Tightening the rules Mind the gap Building Conservation December 2013/
Why the Dilapidations The reasons behind Back in working order January 2014
Protocol still needs work higher than predicted Renovating Windsor rics.org/journals
to be truly effective energy use in buildings Castle’s Canons’ Cloister
PG. 8 PG. 18 PG. 28
RICS B u il d i n g A DVE RTI S I NG
Surv e yi n g J OU R N AL

NEW YEAR, NEW JOB?

Residential Surveyors required UK wide –
Permanent, Freelance and Zero Hours opportunities –
outstanding incentives
With the economy seeing steady growth and confidence returning to the residential market as a result, further
fuelled by the help to buy scheme, demand for Residential Surveyors has never been greater. Whether you are an
existing residential surveyor assessing your current circumstances or a chartered surveyor considering a move
in to this lucrative market, ask yourself this:

“Am I achieving my true market value in terms of salary, bonuses and package
or do I need to consider a move to improve my overall situation?”

With 2014 fast approaching now is the time to consider your options going in to the New Year.
Perhaps you seek:
- An improvement in earnings, be that basic salary or a bonus scheme that offers greater incentives
- A reduction in hours / a move to part time or zero hours working
- A reduction in the volume of work you are expected to handle (i.e. number crunching)
- An improvement in the general quality of your instructions or fee levels

Whatever your situation and however speculative your enquiry at this stage, we would like to hear from you.
We cover the market generally and as such would like to hear from
- RESIDENTIAL SURVEYORS ALREADY WORKING IN THE SECTOR
- RESIDENTIAL SURVEYORS WHO LEFT THE SECTOR POST 2008 BUT WOULD LIKE TO RETURN WITH REFERESHER
TRAINING
- SEMI RETIRED SURVEYORS (with residential experience) KEEN TO KEEP ACTIVE ON A PART TIME/FLEXIBLE BASIS
- FREELANCE SURVEYORS KEEN TO SECURE ADDITIONAL FEE SHARING INSTRUCTIONS
- MRICS QUALIFIED SURVEYORS WITH RELEVANT (THOUGH PERHAPS NOT DIRECT) INSPECTION OR VALUATION
EXPERIENCE

Our vacancies change daily, but in general (and currently) we have urgent needs in the following:
All London postcodes (N, NW, W, SW, E & SE with PARTICULAR URGENCY IN E), Harrow/Middlesex, Hertfordshire (EN, AL,
WD and SG), Essex (RM, SS, CM, CO with PARTICULAR UGENCY IN IG), Luton/Bedfordshire (LU), Reading, Oxford, Slough,
Swindon (M4 corridor generally), Surrey (SM, CR, GU), East & West Sussex (Brighton, Haywards Heath, Horsham), Kent
(ME/TN/CT/BR), East and West Midlands, Norfolk / Suffolk, Cornwall (PL/TR), Gloucestershire (GL), Portsmouth.

Area/patch not mentioned? We welcome confidential enquiries/speculative applications from Surveyors across
Yorkshire, Tyne & Wear, Lancashire and Cheshire, as well as the West Country and East of England.

REMUNERATION
Subject to location, experience and fee income, permanently employed applicants can expect basic salaries
ranging from £35-60k plus bonuses (as either a percentage share of fee income after threshold or based on
“points” amassed), a car/allowance and benefits. Zero hours and Freelance Surveyors can expect fee sharing
arrangements from 30-60% depending on organisation, location and terms

If you would like to discuss or express your interest in one of our immediate needs or indeed register your details for
future requirements please call or write direct in absolute confidence:

Greg Coyle
Head of Property Recruitment
Direct: 0208 514 9116
Email: GregC@bbltechnical.co.uk
Web: www.bbltechnical.co.uk

2 DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4
 C O NTENTS RI CS Bu ild i ng
su rv eyi ng JO UR NAL
Incorporating Building Conservation Journal

Building
Surveying Journal

contents
Dilapidations Setting the agenda

OPINION
UPDATE
LEGAL BRIEFS

Tightening the rules Mind the gap BUILDING CONSERVATION December 2013
Why the dilapidations The reasons behind higher Windsor Castle /January 2014
protocol still needs work to than predicted energy use in Renovating the Canon’s rics.org/journals
be truly effective buildings Cloister
PG. 8 PG. 18 PG. 28

CO N TAC TS 5 16
Alive and kicking
The identity of building surveying
BU I L DI N G S URVE YING JOU R NAL is thriving, says Matthew Clare
Editor: Barney Hatt T +44 (0)20 7695 1628 6
E bhatt@rics.org Setting the agenda
Jon Rowling picks out
The Building Surveying Journal is the journal of the Building the highlights of the RICS
Surveying Professional Group Dilapidations Forum Conference
Out in the cold
Stephen Lemmon discusses
the impact of the upcoming
R22 gas restrictions
17
Every word counts
Neil Gilbert provides definitions
of the standard of repair

Advisory group: 7 18
Gary Blackman (Malcolm Hollis), Alan Cripps (RICS), Chris Gibbons Update Mind the gap
(Tuffin Feraby Taylor), Mat Lown (Tuffin Ferraby Taylor), Peter Miller Eimear Moloney looks at the
(William Martin), Patricia Newman, James Percival (Savills), Trevor 8 technical and behaviour reasons
Rushton (Watts Group), Terry Walker (Walker Associates Ltd) and Tightening the rules behind higher than predicted
Kevin Woudman (AKD Consulting) The Dilapidations Protocol still energy use in buildings
needs work to be truly effective,
The Building Surveying Journal is available on annual subscription. says Edward Shaw 19
All enquiries from non-RICS members for institutional or company Overcoming the hurdles
subscriptions should be directed to: 9 In the second of our series on how
Counting the cost RICS is using building information
Proquest – Online Institutional Access E sales@proquest.co.uk Substantiating damages are an modelling on its London head
T +44 (0)1223 215512 for online subscriptions or essential ingredient in calculating office, Les Pickford looks at
SWETS Print Institutional Access E info@uk.swets.com dilapidations claims, explains the challenges of producing an
T +44 (0)1235 857500 for print subscriptions Michael Watson estimate from the data in the initial
3D model
To take out a personal subscription, members and non-members 10
should contact licensing manager Louise Weale End of tenancy etiquette 20
E lweale@rics.org Alex Charlesworth, David Shortall Going underground
and Saleem Fazal discuss their To gain more space many owners
respective roles as building have already extended up, out
surveyor, valuer and solicitor in the and back, which leaves only one
BU I L DI N G C O N S E RVAT ION JOU R NAL
Dilapidations Protocol process option – downwards with a retrofit
basement. Matthew Hearsum
Editor: Robert Mallett T +44 (0)20 7695 1533 13 explores the legal implications
E rmallett@rics.org Estimating losses
‘Supersession’ is a bit of a 22
The Building Conservation Journal is the journal of the
mystery for many surveyors, Checking the terms
Building Conservation Forum
explains Terry Davis Before agreeing to a new contract,
it is vital to evaluate whether any
Building Conservation Forum Board contact:
14 liabilities that might arise are
Frank Keohane (Paul Arnold Architects)
Terms and condition covered by your professional
Vivien King considers the legal indemnity policy, advises
issues surrounding dilapidations Emma Vigus
Published by: The Royal Institution of Chartered Surveyors, and lease renewals
Parliament Square, London SW1P 3AD 24
T +44 (0)24 7686 8555 W www.rics.org Leading the design
ISSN 1750-1032 (Print) ISSN 1759-3387 (Online) Mike Scott explains the
background behind the RICS
Editorial and production manager: Toni Gill Design and specification
Sub-editor: Gill Rastall guidance note
Designer: Emma Storey 26
Creative director: Mark Parry Laying down the law
Ewan Craig talks to Jon Rowling
Advertising: Lucie Inns T +44 (0)20 7871 2906 about the legal and regulatory
E lucie@sundaypublishing.com compliance core competency
Design by: Redactive Media Group   Printed by: Page Bros

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

DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4 3
RICS B u il d i n g A DV E RTI S I N G
Surv e yi n g J OU R N AL

Now you have your own Training

dilapidations expert in your
team, on any instruction. Templates

The Dilapidations Mentor is Job-specific guidance

Jon Rowling.

Contact us to discuss
our bespoke services
www.DilapidationsMentor.com

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The most efficient, thorough and capable survey
software to create, produce and centrally manage
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To ad ve rtise con t a c t l u c i e I n n s +4 4( 0 ) 20 78 71 2 9 0 6 or lu c ie@su nday pu blishing. c o m

4 DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4

OPINION
The identity of building surveying is thriving, says Matthew Clare
T
Alive and kicking
There have been some
significant changes to the
Building Surveying
Professional Group Board
(BSPG) since the last issue of
the Building Surveying Journal.
I would like to place on record
my gratitude to the outgoing
board members Patricia
Newman, Ewan Craig, Simon
Clark, Andrew Nicholls and
Philip Jemison for their
respective contributions, in
some cases stretching back
over several years. I hope that
they will continue to serve
our profession in other ways
such as contributing to this
journal, the Assessment of
Professional Competence
review process and to
working groups generally.
They have all played a role
in shaping the profession.
I am pleased to report
that we have been joined by
two new board members,
Geoffrey Hunt and Kevin
Thomas, who have already
attended their first board
meeting. You will be hearing
more from them soon. I would
like to offer my thanks to
those members who applied
to join the Board but were
unsuccessful – the very high
quality and quantum of
applicants made the selection
process particularly difficult.
The more observant will
have noticed that there
were many more leavers
than joiners.
This was necessary to
bring us in line with RICS
requirements that stipulate
we should have a board of
nine, a target that we have
now met.
Conference
The Building Surveying
National Conference
Committee recently met to
review the 2013 event and
start planning for 2014. We
regularly fend off questions
about the location, and
duration, of this key event. The
simple truth of the matter is
that the two-day format (in
Nottingham or indeed
anywhere else) is no longer
viable – for the time being at
least. Work has already started
on the next conference on 2
April 2014, and we will be
returning to London’s Mermaid
Theatre, which proved to be a
very popular venue (despite
some grumbles) this year.
We always take time to
carefully evaluate the
feedback that conference
delegates provide and there
are mixed messages, but the
overwhelming sentiment is
that the committee is getting
it right. To give you a flavour
of how difficult it is to please
everyone, some say that
certain sessions are too
C HA IR MA N’s C O LUMN
general, yet others said the
same session was too
detailed. Most attendees felt
the event offered excellent
value for money, but some
said we had spent too much
on the venue.
Nobody wants to pay any
more for the day, but many
delegates expect to have a
separate dining area to sit
down and eat lunch, which
would significantly increase
the venue hire cost and
therefore the delegate rate.
Some said the day was too
long, some said too short. A
few bemoan the location, but
75% of our delegates travel
from London or the Home
Counties and, we understand,
would not travel elsewhere for
a one-day event. The point I
am trying to make here is that
“
We take time to
evaluate the
feedback that
conference
delegates
provide, and the
overwhelming
sentiment is
that the
committee is
getting it right
DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4
RI CS Bu ild i ng
s urv ey ing JO UR NAL
we cannot ever hope to
please everyone entirely but
happily, overall, the feedback
suggests that we get more
right than we get wrong.
Dilapidations Forum
Still on the subject of Building
Surveying events, the 2103
Dilapidations Forum
Conference was once again
excellent and, after eight
years, it goes from strength to
strength. My thanks to
conference chair Jon Rowling
and his very able team for
putting this together.
Dilapidations matters are, of
course, a major area of
practice for some building
surveyors, but non-existent if
not somewhat alien to others.
That is why the Dilapidations
conference has a core group
of regular attendees, as does
the Building Surveying
National Conference, and
there are of course some
members who attend both.
However, it is important that
we do not just recycle content
from one to the other.
These events are the two
best attended in the whole of
the RICS calendar, which is
something we can be very
proud of. It seems that the
building surveying identity is
alive and well, and perhaps
even thriving. C
Matthew Clare FRICS is
Chairman of the Building
Surveying Professional Group
bs.professionalgroup@rics.org
5
RICS B u il d i n g
Surv e yi n g J OU R N AL
Setting the agenda
F
Jon Rowling picks out the highlights of
the RICS Dilapidations Forum Conference
For the vast majority of
delegates at the RICS
Dilapidations Forum
Conference, it is the law, and
developments in the law, that
are top of their wish list for
content. At the September
event at the Royal College of
Surgeons, the best-attended
event so far, about 300
delegates were rewarded with
a first rate line up including
Nick Dowding QC, Martin
Hutchings QC, barrister Nic
Taggart, Jonathan Ross of
Forsters, Daniel Levy of
Mischon de Reya, Kinney
Green senior partner Nick
Eden and Mark Tatlow, CBRE
senior partner. They covered
topics such as the measure of
damages for the reinstatement
of alterations, litigation costs,
and the content of the
Quantified Demand (QD).
Meanwhile, Hogan Lovells
International senior associate
Tim Reid provided an update
on case law and Micheal
Hollis, partner of Stephen
Lemmon, and Charles
Woollam, partner of
Sustainable Investment
Asset Management covered
R22 and Energy Performance
6 DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4
D I L A P I DATI O N S
Certificate lettings restrictions
respectively.
Dowding’s keynote address
reminded the audience of the
genesis and development of
the ‘five-stage analysis’ of
disrepair that features in
his leading textbook
Dilapidations: the modern law
and practice, co-authored by
Kirk Reynolds QC, which is
now in its 5th edition.
He also took the
opportunity to extol the
virtues of early settlement of
dilapidations disputes via
alternative dispute resolution,
citing particularly expert
determination or arbitration as
suitable methods. This was
particularly apt for the
audience who had just seen
the crippling effects that
litigation costs awards can
have for whichever party is
not fully protected by
suitable and early offers to
settle, or by compliance with
the Dilapidations Protocol.
In fact, Dowding’s
suggestion followed an earlier
discussion on whether RICS
should introduce a bespoke
form of dispute resolution for
small or simple dilapidations
cases; and this is something
that RICS will take forward.
Hopefully, following
consultation and a trial period,
an RICS Scheme for
Dilapidations Dispute
Resolution will be launched in
the near future. All thoughts
and suggestions on the most
suitable model are welcome.
RICS is also developing a
dilapidations essay prize for
students, to be sponsored by
Tuffin Ferraby Taylor, which
will be presented for the first
time at next year’s conference.
During the session on QD,
there was discussion on the
extent to which building
surveyors without experience
or professional indemnity
insurance for valuation advice
can produce the QD without
input from others, such as
their client, local agents or a
valuer. The QD, of course,
includes a figure that should
not exceed the landlord’s
‘likely loss’ and so the sum
may not be the same as the
cost of works.
Hutchings delivered a
well received talk on
supersession; that oft-quoted
but ill-defined concept that is
at the forefront of most
surveyors’ minds when
dealing with dilapidations.
Thinly-veiled light relief was
provided by Taggart’s session
on the measure of damages
in relation to failure to
reinstate alterations. Who
knew we would be considering
deserted South Pacific
islands and Tina Turner.
The Dilapidations Forum
Steering Group continues to
work towards its aim of
creating a centre of
excellence and – along with
the student essay prize – it is
working with RICS Training
on a Diploma in Advanced
Related competencies
include T051
Dilapidations. Hopefully, that
project will come to fruition
in the next few months.
It is also drafting an
Information Paper on the
principles of dilapidations
across the British Isles.
One theme that flowed
from the conference question
and answer sessions was
that RICS might consider
giving more guidance on the
valuation process in
dilapidations and, following
the discussions about QD,
what should be in building
surveyors’ minds when
deciding whether or not they
are qualified to produce that
document on their own.
Suggestions for content at
next year’s event are welcome,
as are ideas for activities for
the Forum Steering Group,
and offers to speak at or host
the free evening seminars. C
Jon Rowling is Chairman of the
RICS Dilapidations Forum Steering
Group, Director of Goodrow
Building Consultancy and
www.DilapidationsMentor.com
jon.rowling@goodrow.co.uk
More information
>
To join the Dilapidations Forum,
visit www.rics.org/dilapidations
or email dilaps@rics.org
Dilapidations Price Book 2013 is
available from www.bcis.co.uk

UPDATE
Expert accreditation
Until recently, expert witnesses providing
courts and other tribunals with an
understanding of technical issues were
immune from liability. However, the
landmark Supreme Court decision in the
case of Jones v Kaney [2011] effectively
abolished general immunity from suit for
such witnesses, although they retain
immunity in respect of defamation claims.
The case led to an RICS investigation
into how it could oversee the quality of
expert witnesses in the built
environment. The result is the RICS
Expert Witness Accreditation Service
(EWAS). The process includes evaluation
of candidates against clear criteria
covering experience, training and skills in
giving written and oral evidence.
EWAS does not test whether a person
is truly an expert in a particular field, but
Health and safety
The Health and Safety Executive (HSE) has
identified that falls through roofs account
for 20% of all fatalities in the construction
sector and construction workers are on
average four times more likely to be killed
at work than in other sectors. According to
the HSE, a potential reason for the high
number is that the fines imposed are often
lower than the costs of fully implementing
health and safety measures. The group
launched a month-long initiative in
September to increase awareness, which
included unannounced inspections and
enforcement at sites across the country.
Particular areas of concern were falls from
height, structural stability, asbestos,
respirable silica and welfare and site order.
n http://bit.ly/1fwi8GC
RICS BIM certification
RICS has developed the first BIM
Manager Certification in response
to industry requirements to have a
kitemark that demonstrates the
skills and competence of
construction professionals in using
building information modelling.
n http://bit.ly/1fSjDDx
UPDATE
provides assurance that the person
will only take on jobs falling within his
or her personal expertise, because
EWAS-accredited experts are bound
to comply with RICS best practice
and published guidance, and their
performance monitored. The EWAS
standard is underpinned by a dedicated
training course, a quality-control regime
and bespoke continuing professional
development requirements. Candidates
are individually assessed and rated at
one of three levels.
While the role and function of court
experts vary across the world, EWAS
will also be used to establish
fundamental principles of good
practice that apply globally.
n For further information, contact Raj
Sohal rsohal@rics.org/020 7695 1714
Dedicated online hub
provides SME support
Small- and medium-sized enterprises
should take advantage of the dedicated
small business hub on the RICS
website. The hub provides toolkits on
management and red tape, legal
guidance, business advice, fact sheets
and networking support, as well as
targeted articles to meet SME needs.
For example, read Richard Garland’s
insight on how surveying SMEs can use
strategic thinking to enhance their
services to clients and build more
sustainable businesses for the next five,
10 or 20 years.
n http://bit.ly/17kMVHe
n http://bit.ly/17nUKZ8
Also available on the hub, the RICS small
business property guide runs through the
more common decisions and actions that
may be needed – from acquiring a lease
to challenging a dilapidations claim –
along with vital property-related issues
such as valuations, planning permission
and the business rates system. It should
help businesses know when they need to
call in the professionals and how to work
with them.
n http://bit.ly/1aVSIFH
DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4
RI CS Bu ild i ng
su rv eyi ng JO UR NAL
Online
journals
In brief...
RICS training
23 January 2014
Dilapidations – reinstatement
of tenants’ alterations
One-hour live web class will
identify the various factors that
can affect a tenant’s rights and
obligations to reinstate alterations
made in leased premises.
n http://bit.ly/1ehwtJj
31 January, London
Dilapidations – a building
surveyor’s perspective
One-day course will cover the
principles of preparing and
defending a dilapidations claim,
and negotiating a settlement.
n http://bit.ly/13hFVrr
Assessment of Professional
Competence
The following live web classes are
available, all running from 9 -10.30
6 February
Professional experience route:
facing the final assessment
9 February
Building pathology competency
n http://bit.ly/17ahRYn
11 February
Landlord and tenant competency
n http://bit.ly/14tbBI1
Recent publications
BCIS Dilapidations Price Book 2013
Compiled using the latest data, this
is essential reading for anyone
providing early advice to landlords
or tenants on the costs of complying
with Schedules of Dilapidations.
n http://bit.ly/18cuNhs
Dilapidations: the modern law and
practice by Dowding and Reynolds,
published by Sweet and Maxwell,
covers the legal principles relating
to both residential and commercial
dilapidations, plus the practical
aspects of dilapidations claims.
n For further information on
dilapidations, visit www.isurv.com
7
RICS B u il d i n g
Surv e yi n g J OU R N AL
OPINION
The Dilapidations Protocol still needs work to
be truly effective, says Edward Shaw
O
Tightening the rules
Open heart surgery has its
benefits. The enforced leave
of absence gives the
opportunity to reflect, review
and plan. While I cannot claim
to have had the Dilapidations
Protocol as the focus of my
attention for the whole of my
convalescence at the start of
2012, the timing was good
because it had been adopted
into the Civil Procedure Rules
(CPR) a few weeks before,
and it seemed a good time to
reflect on whether it does
what is says on the tin.
Setting out the procedures
to be adopted on termination
of commercial tenancies, the
first version of the protocol
coincided with the
introduction of the CPR in
1999. This was a period when
RICS was receiving
complaints from the legal
profession that many of the
Schedules of Dilapidations
they were expected to litigate
were not fit for purpose, due
to the level of exaggeration
and inaccuracies they
contained. Claims were
based on false positions and
as such could not be
enforced. Responses to
claims were often no better.
8 DECEMBER 2013 / jANUARY 2014
D I L A P I DATI O N S P R OTO C O L
Different versions
The protocol went through a
number of versions. In view of
the close link between
surveyors and lawyers in
dilapidations work, RICS had
an input into the various
drafts and the Property
Litigation Association (PLA)
considered and took on
board some of the working
group’s suggestions. These
were not always right and,
quite justifiably, criticism was
received through the RICS
Dilapidations Forum when it
was wrong. By the time the 5th
edition of the Dilapidations
guidance note was published
– to which was appended the
PLA Protocol – RICS felt it
had a good document and a
practical guide to good practice.
In many ways the objective
set 10 years before had been
achieved. The majority of
surveyors were aware of the
need to draft schedules that
reflected the breaches of
covenant and the instance of
outrageous exaggeration
was reducing.
Since the protocol was
adopted into the CPR two
years ago and ceased to be
guidance, surveyors have had
to abide by its procedures and
requirements. That said, those
requirements are not
particularly onerous. Eight
weeks to prepare or respond
to schedules should be
ample time under normal
circumstances, and whereas
endorsing schedules and
responses may be seen as a
nuisance by some, confirming
that we have taken a
professional approach is not
an unreasonable thing to ask.
However, where a document
is adopted into law, it should
be correct, and I have
reservations over this protocol.
Reservations
For example, it is not clear at
what point the protocol
comes into force. The stated
“at the end of the term” needs
to be clarified. Taken in
conjunction with the
requirement to endorse the
schedule, there must be no
opportunity for the tenant to
change the scope of remedial
work required, otherwise the
endorsement is worthless.
The end of the term must
mean exactly that and not
within a few months.
There is no commentary on
how to treat simultaneous
expiry of sub-leases.
Claimant and respondent
are required to endorse
different documents. The
claimant endorses the
schedule, which does not
include consequential losses,
so loss of rent claims can be
included with impunity;
however, the respondent
endorses the response to the
quantified demand, which
includes everything.
Consideration also needs
to be given to how much
of a sanction actually
accompanies failure to abide
Further +info Related competencies
include T051, M006
by the protocol. There is a
threat of a punitive costs
award, but only a small
percentage of cases come
before the courts. Even fewer
have the conduct of the
parties argued during costs
hearings so many may feel
that is a risk worth taking.
I have two further
concerns. First, a straw poll
of building surveyors reveals
that a significant number are
ignoring the protocol. Second,
the second Hammersmatch
v Saint Gobain judgment ruled
that a claim made at £7.5m
but awarded £900,000
was not exaggerated
because the claimant took
professional advice.
I am in favour of a protocol
if it is practical and serves to
increase professional
standards, but we do not
currently have the finished
article and more work needs
to be done. It seems to me
that the emphasis has been
on the adoption into the CPR
rather than the effect on
practitioners of having a
wanting and possibly rushed
through protocol. C
Edward Shaw FRICS is a
Director of Building and
Project Consultancy,
Dilapidations at Savills and
a former Chair of the RICS
dilapidations working group
eshaw@savills.com
C

Counting the cost
Substantiating damages are an essential ingredient in
calculating dilapidations claims, explains Michael Watson
D
ilapidations claims are
claims for damages
that are recoverable at
law as a consequence
of alleged breach of
contract. In many
walks of life contracts
define obligation and allocate risk
between parties, with which they freely
undertake to comply. Where a party does
not, then the other contracting party may
have a claim for damages. Leases are
contracts, albeit a particularly specialised
contract for a specific purpose. Where a
party fails to comply with repairing
covenants in a lease the other party may
seek to recover damages.
To formulate a claim, the terms of
the contract provide the starting point.
What were the parties actually
obligated to do? In dilapidations this is
consideration of the lease and any
other relevant documents such as
licences for alterations.
Next comes the process of identifying
breaches of the contractual obligations
– the preparation of the schedule. This
identifies specific breaches of the
repairing obligations by reference to
the standard of repair agreed by the
parties at the start of the lease. It may be
costed but the process does not stop
there. It is necessary for whoever is
formulating the claim to consider just
what sum is actually recoverable applying
all relevant legal principles, case law and
relevant statutory provisions. This is not
necessarily a straightforward exercise in
dilapidations. For example, to quote from
the judgment in Sunlife Europe Properties
Ltd v Tiger Aspect Holdings Ltd [2013]
EWHC 463:
“The primary measure of damages –
the cost of putting the building back
into repair – is subject to two rules. The
first is that a Claimant cannot recover
in respect of losses which, by acting
reasonably, he could have avoided – the
so called ‘duty to mitigate’. The second is
that a Claimant cannot recover a cost of
repair that is disproportionate to the
benefit conferred by the repair in
question (Ruxley v Forsyth).”
D ilapidations
Q uanti fied Demand
Add to this the cap imposed by section 18
of the Landlord and Tenant Act 1927 and
it can be seen that the process of
formulating the damages claim requires
more than producing a list of works and
costing them. The claimant (landlord)
must set out the sum they claim is
recoverable at law and whoever
undertakes that process of quantifying
the damages must consider all relevant
factors in coming to their opinion.
The Dilapidations Protocol recognises
the requirement not only to set out the
alleged breaches of contract but also
to quantify the damages recoverable at
law. The drafters of the protocol
“
To comply with
the protocol, a
Quantified Demand
must not only set
out the monetary
sum sought as
damages but must
also substantiate
that sum
introduced the dilapidations community
to the Quantified Demand (QD), stating
it should:
“Set out clearly all aspects of the
dispute, and set out and substantiate the
monetary sum sought as damages in
respect of the breaches detailed in the
schedule as well as any other items of
loss for which damages are sought. It
should also set out whether VAT applies.”
To comply, a QD must not only set out
the monetary sum sought as damages
but must also substantiate that sum.
The authors of the protocol clearly
contemplated that the Quantified
Demand would, therefore, be an
DECEMBER 2013 / jANUARY 2014
RI CS Bu ild i ng
su rv eyi ng JO UR NAL
assessment of the damages properly
recoverable at law; something that in
many cases will be fundamentally
different to the cost of works detailed in
the Schedule of Dilapidations.
As Paragraph 4.5 of the Protocol states:
“The figures set out in the Quantified
Demand should be restricted to the
landlord’s likely loss. This is not
necessarily the same as the cost of
works to remedy the breaches.”
To conclude, any professional presenting
a claim for damages on behalf of a
landlord needs to have regard to the fact
that they may ultimately be called on to
justify before a court their assessment
of the damages set out in the Quantified
Demand. As Judge Toulmin CMG QC
said in Business Environment Bow Lane
Ltd v Deanwater Estates Ltd [2008]
EWHC 2003:
“They [the Defendant] were entitled
to assume that the claim was being
put forward in good faith based on
sound advice.”
The outcome in that case was that the
claimant landlord paid the tenant’s costs
on an indemnity basis because of the
misrepresentation on the part of the
landlord (and their advisers) of the level
of damages recoverable at law.
Professionals advising tenants are the
guardians of their clients’ purses. They
too should ensure there is a careful
appraisal of the claim in the QD by
applying the relevant principles to
formulate their advice as to the
damages recoverable at law. C
Michael Watson is a Partner at Shulmans
mwatson@shulmans.co.uk
Further +info
Related competencies
include T051 C
9
RICS B u il d i n g L egal
su rv e yi n g J OU R N AL
End of tenancy etiquette
Alex Charlesworth, David Shortall and Saleem Fazal discuss their respective
roles as building surveyor, valuer and solicitor in the Dilapidations Protocol process
EVENTS LEADING UP TO
LEASE TERMINATION
TENANT
- C onsider preparation of a
dilapidations assessment
- C arry out some or all works,
or settle financially?
LANDLORD
- Serve notice to reinstate
- I ssue a terminal Schedule of
Dilapidations
W
hile the Dilapidations
Protocol is now
commonplace, there
is still the perception
that it is a rigid
inflexible process,
with the ever
present danger of court action if it is not
followed. However, the reality is that the
protocol procedures are far from rigid
and the terminology used is very carefully
communicated, with the word reasonable
featuring throughout.
The protocol’s objective is actually to
avoid court action, and this is done by
setting out clear procedures and
timeframes in order to reach settlement.
There are however, still areas of
misunderstanding around the process
and demarcation of skills among
professionals. It is important to
appreciate that as well as the client,
building surveyors, valuers and solicitors
should be considered as one team, and
each skill has its own place.
The building surveyor
Before termination
There is no obligation for a landlord to
prepare a terminal schedule before the
end of the term, but they often do so in
order to promote early negotiations.
Landlords usually want to reach a
financial settlement and so timing of the
schedule is often delayed to frustrate the
tenant’s ability to undertake the works in
10 DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4
SEND SCHEDULE &
TERMINATION QUANTIFIED DEMAND
OF THE LANDLORD
TENACY - Issue a terminal schedule
- Sign endorsement
- Issue a Quantified Demand
- D isclose supporting
documents
WITHIN 56 DAYS
time. As a result, tenants approaching the
end of the lease term often appoint their
own surveyor to assess liability and cost.
Forewarned is forearmed.
There is no obligation for a tenant to
respond to a terminal schedule served
before the tenancy ends. Many surveyors
still misquote the protocol, particularly
when trying to extract a response from
the other side. The simple fact is that the
protocol does not apply until termination
of a tenancy. The clue is in the full title:
Pre-action Protocol for claims for
damages in relation to the physical state
of commercial property at termination of
a tenancy”.
At termination
The protocol now applies, and its
timeframe gives a landlord up to 56 days
within which to issue a Schedule of
Dilapidations. This will also include an
endorsement stating the landlord’s
intentions and the Quantified Demand.
This timeframe should be taken as a
maximum guidance only. While many
landlords often state that the intention is
to undertake the dilapidation works, it is
clear that many will also be exploring
alternative options at the same time. If the
landlord intends to undertake works that
are likely to dilute or supersede parts of the
claim, then this must be taken into account.
It rests with the tenant to prove the landlord’s
intention at or shortly after termination of
a tenancy, which will be very difficult.
RESPONSE
- L andlord & tenants’
surveyors meet
- Tenant issues response
and endorsement
WITHIN 56 DAYS
Parties are encouraged to meet before
the response to the Quantified Demand
is due. Parties should also meet within 28
days after the tenant sends the response
with the aim of agreeing as many items
as possible, reducing the scope of
dispute. It is after this process that the
protocol then gives guidance to
alternative dispute resolution and
quantification of loss. The latter requires
a detailed breakdown of issues and
consequential losses based on either a
formal diminution valuation or an account
of the actual expenditure, or a
combination of both.
It is clear that where the landlord is
intending to undertake works, there is no
requirement for a diminution valuation to
be prepared. On the other hand, where
they are not, then early preparation of
a diminution valuation should be
considered.
During negotiations, legal disputes
often arise, in particular over
interpretation of liability. This is where the
building surveyor’s demarcation of skills
lies. It is not their role to pontificate on
whether a particular legal case is
relevant. Each case has its own unique
set of circumstances and is therefore
very unlikely to match the subject
situation. By all means discuss principles
established by such legal cases, but the
application or context surrounding
them should be dealt with by the
legal profession.
 RI CS Bu ild i ng
su rv eyi ng JO UR NAL

“
During negotiations, legal disputes often
arise, in particular over interpretation
of liability. This is where the building
surveyor’s demarcation of skills lies

STAGES OF THE PROTOCOL

NEGOTIATIONS - QUANTIFICATION OF LOSS & ADR STOCKTAKE

- L andlord & tenants’
surveyors meet
- Tenant issues response
and endorsement
COURT
PROCEEDINGS
- L andlord issues -A
 lternative dispute
Quantified Demand resolution is encouraged
- Tenant to respond with during the negotiations
a diminution valuation and before court
within 56 days thereafter proceedings

WITHIN 28 DAYS PERIODS VARY CONSIDERABLY

The valuer
Section 18 (1) of the Landlord and Tenant
Act 1927 operates to impose a statutory
cap on the amount recoverable in
damages for a claim in dilapidations in
respect of breaches of covenant in
relation to repair.
Under the first limb of Section 18 (1),
the measure of damages recoverable is
capped at the diminution in value of the
landlord’s reversion, or interest. The
second limb operates to eliminate a
claim in circumstances where the
landlord intends to pull down the building
or make structural alterations that would
render valueless the repairs.
The operation of common law,
applies the principle of diminution in
value to other breaches of covenant,
albeit this does not emanate directly
from Section 18 (1).
The valuer’s input primarily relates to
the operation of it first limb. The second
limb is largely evidential.
In order to assess the diminution in
value of the landlord’s interest, the valuer
will need to consider the likely future for
the building. Using local market
evidence, the valuer will draw preliminary
conclusions as to whether a purchaser
of the building is likely to simply carry out
the dilapidations works, or refurbish,
improve or upgrade, alter or extend, or
perhaps change the use of the building.
These preliminary conclusions are
then tested by reference to alternative
valuations, or appraisals, reflecting the
alternative futures. The appraisal that
produces the highest value is likely to
reflect the course of action that a
building purchaser would pursue, and
result in the highest bidder for the property,
which is the true open market value.
In order to determine the measure of
diminution in value, the valuer must carry
out two valuations. Valuation A –
assuming compliance or In repair and
Valuation B – in actual state of repair. The
diminution in value is that difference
between these two.
In undertaking the valuations, the
valuer relies heavily on input from the
building surveyor and they must work
together as a team. The end result will be
highly dependent on the quality of the
building surveyor’s analysis. The process
should work as follows.
The valuer must initially determine the
likely alternative futures for the building.
For each, two additional columns
(survival works and superseded works)
should be added to the Scott Schedule
and analysed jointly by the building
surveyor and valuer. Each item of work
should fall into one or other of these
columns. The valuer will rely on the
building surveyor’s expertise to advise as
to whether a certain item of work will
survive a particular future for the building,
or if it is to be superseded, the value of
any survival works. It is possible that part
of the cost may fall into both columns if
part would survive and part would
be superseded.
The building surveyor will also need to
advise the valuer on the cost of any works
of improvement or alterations that might
fall within a contemplated future for the
building; for example this might relate to
upgrading an old office building to Grade
A specification, or conversion to an
alternative use such as residential or hotel.
The value of the survival works is a key
element in the valuer’s assessment of
diminution in value.
In responding to a Schedule of
Dilapidations, building surveyors
representing a tenant are sometimes
tempted to exclude certain works on the
basis that there is a possibility they may
be superseded by either the perceived
intentions of the actual landlord, or a
purchaser of the building in the market.
This approach is misguided. The building
surveyor should be careful to detail the
common law claim by detailing the
tenant’s breach of covenant, the
appropriate remedy, and the cost of
this remedy. n

DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4 11
 RICS B u il d i n g L egal
su rv e yi n g J OU R N AL
n The solicitor
Almost 10 years after first being
introduced by the Property Litigation
Association, the Dilapidations Protocol
was adopted by the Civil Procedure
Rules (CPR) in January 2012. This means
that it must be followed in all terminal
dilapidations claims. Various time limits
are outlined but the intention is to set out
a framework for dealing with the claim –
although a party that misses a deadline
will not be prevented from bringing or
defending a claim. It is all about following
a reasonable process leading (hopefully)
to an early settlement. A party that fails
to heed this advice risks adverse costs
orders against them even if they
are successful.
Solicitors should be instructed at an
early stage, particularly on matters
relating to legal interpretation of liability.
Following the expiry of the lease, it is
sensible in most cases to formally serve
a terminal schedule of dilapidations and
invoke the timetable set out in the
Protocol, which aims to encourage
parties to engage in the process.
This applies to both parties.
Consequently, a tenant should not play
its cards close to its chest and fail to
engage, particularly if there is a potential
defence under Section 18(1) of the
Landlord and Tenant Act 1927.
A clear example of that is seen in the
recent case of Hammersmatch
Properties (Welwyn) Ltd v Saint-Gobain
Ceramics and Plastics Ltd and another
[2013] EWHC 2227. In that case, it was
found that Saint Gobain as tenant did not
set out its defence early enough in the
negotiations and for that reason the
judge was not as generous as he might
have been when deciding the question of
costs. The judge said:
“Saint-Gobain did not, until proceedings
were far advanced, properly engage in the
detail of the schedule of dilapidations or in
relation to the quantum of its case on
12 DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4
diminution in value……the information
which had been provided by Saint-Gobain
to Hammersmatch, particularly in relation
to diminution in value, made it difficult to
assess the Saint-Gobain case.”
The Hammersmatch case represents
an example of how the court might
approach the question of costs following
the Jackson reforms on costs. As part
of the reforms, changes were made to
CPR Part 36, which governs offers to
settle and the cost consequences that
then apply depending on whether a
party beats its offer. One of the changes
was to make it clear that a so-called
‘near-miss’ will not help the offeror. There
had been some uncertainty about this
following the case of Carver v BAA plc
[2008] EWCA Civ 412, in which the Court
of Appeal considered that a near miss
entitled it to exercise its discretion in the
offeror’s favour.
Hammersmatch’s original claim
amounted to £7.6m. That sum reduced
to £6.8m when proceedings were
commenced. Hammersmatch had
made a Part 36 offer of £3.2m and
Saint-Gobain had made an offer of £1m in
December 2011. Following the trial,
Hammersmatch only recovered
£900,000 plus interest and costs of
serving the schedules. Take into account
interest on Saint-Gobain’s offer and
Hammersmatch only recovered
£3,637.90 more at trial than if it had
accepted the offer. If Saint-Gobain had
offered around £4,000 more, then
Hammersmatch would have been liable
to pay Saint-Gobain’s costs from January
2012 as well as its own.
The court held that Saint-Gobain had
failed to beat its offer. In addition, as
mentioned above, the judge found that
Saint-Gobain did not set out its defence
early enough in the case. However, given
that some costs were wasted by
Hammersmatch’s apparent intention to
carry out the works, the court reduced
Saint-Gobain’s liability slightly and it was
ordered to pay 80% of Hammersmatch’s
costs. Given the likely level of costs
incurred, that is a harsh lesson to a
tenant who underbid by £3,637.90.
The courts will penalise parties that do
not seek an early negotiation. Indeed,
after the exchange of their statements of
case, the parties have to lodge an
allocation questionnaire. One of the
points raised in this is that the parties
should make every effort to settle their
case. Legal representatives have to
confirm to the court that they have
advised their client about the need to try
to settle, the options available and the
cost sanctions that may otherwise apply.
Consequently, there is no escape from
the rules.
Summary
While the protocol sets out a procedural
guide, the final stage of which is court
proceedings, its aim is to encourage early
settlement. However, the route can be
tortuous, and should only be contemplated
with the right team. Early engagement
and interaction between building
surveyors, valuers and solicitors, and not
forgetting the client is paramount. C
This article is written in respect of
dilapidations in England and Wales only. In
circumstances where break clauses are
operated which require material or
specific performance then specialist
advice should be sought.
Alex Charlesworth FRICS is Partner and
Head of Building Consultancy at Cushman
& Wakefield LLP
alex.charlesworth@eur.cushwake.com
David Shortall FRICS is a Partner and
Head of Professional Services at Alexander
Reece Thomson
Saleem Fazal is Partner and Head of Real
Estate Disputes at Taylor Wessing LLP
Related competencies
include T051
RICS Dilapidations
Protocol training events
http://bit.ly/18SAn6Y

The notion of ‘supersession’ is a bit of a mystery
for many surveyors, explains Terry Davis
Estimating losses
J
ustice Edwards-Stuart’s comments or
‘rules’ in the recent case of Sunlife Europe
Properties Ltd v Tiger Aspect Holdings Ltd (1)
Tiger Television Ltd (2) [2013] should be
essential reading for all surveyors, explaining
very clearly the notion of supersession. The
three most relevant are:
1 “The court must consider what work would have been
required at the expiry of the lease in order to put the premises
(if properly maintained and put in good condition by the tenant)
into a condition that would enable it to be let to the appropriate
type of tenant at a fair market rent. This may have two
consequences. First, the landlord cannot recover the cost of
that additional work from the tenant. Second, the additional
work may make worthless some of the work that would have
been necessary to put the building into repair with the result
that, if such work has not been done, the landlord has suffered
no loss and accordingly cannot recover any damages in respect
of that breach. This is known as ‘supersession’”.
2 “The standard to which the building is to be repaired or kept
in repair is to be judged by reference to the condition of its
fabric, equipment and fittings at the time of the demise, not the
condition that would be expected of an equivalent building at
the expiry of the lease.”
3 “Where market conditions at the expiry of the lease require
upgrading or refurbishment works to be carried out in order to
enable the building to be let to the appropriate type of tenant,
a tenant in breach of a repairing covenant is not liable for the
costs of any work to remedy the breach to the extent that such
work would be rendered abortive by the need to upgrade or
refurbish the building (i.e. where there is supersession).”
In considering (1) above it is necessary to take into account (2)
and this may then take us into considering (3) as well. A
patched flat roof or an old but running boiler would generally be
considered ‘in repair’ but may require replacement to enable the
building to be let as (3) above, thereby tripping out supersession.
There is a further point to consider if the property was
surrendered in disrepair but would have been lettable if in
repair then the landlord may carry out work to a higher standard
and in certain circumstances recover the cost of the original
repair from the tenant providing such a decision was taken post
termination. Again one of the ‘rules’ in Sunlife assists here:
“Where there is a need to carry out remedial work as a result of
D ilapidations RI CS Bu ild i ng
supersession surv eying JO UR NA L
the tenant’s breach the fact that the landlord carried out more
extensive work than necessary to remedy the breach does
not in itself prevent him from recovering the cost of such works
as would have been necessary to remedy the breach”.
See also PGF II SA v Royal & Sun Alliance [2010].
Diminution valuations
These are used to establish the loss suffered by the landlord
as at the date of termination of the lease, and do not
necessarily bear any relationship with the cost of rectifying
the breaches of the former tenant’s repairing obligations.
Diminution valuations must, of course, be left to registered
valuers with the appropriate experience, but what should
building surveyors do or not do? Let us look at a couple of
actual examples:
bb A ‘trade counter’ unit of 30,000 sq ft where the tenant
installed a disabled toilet for customers under licence with an
express covenant to reinstate – the Schedule of Dilapidations
(SoD) claimed for the cost of reinstatement. Any reasonable
incoming tenant with the same use would need to consider the
installation of such a toilet. The tenant’s breach of the express
covenant to reinstate should in my view be countered by a ‘nil
diminution’ argument in the Scott Schedule.
bb A business unit of 2,500sq ft with electric storage heaters,
tenant installed gas-fired central heating with radiators, again
under licence with an express covenant to reinstate. The SoD
claimed the cost of removing the central heating and reinstatement
– there is no diminution here; indeed, quite the opposite.
The bottom line is: has the landlord suffered a diminution/loss
in the value of the property due to the tenant’s breach? In the
two examples cited I would say definitely not, although there
are exceptions to every rule. The building surveyor should use
common sense when considering diminution/loss – it is really
not that complicated. C
Terry Davis FRICS is Principal at TN Davis Chartered Surveyors
terry@tndavis.co.uk
Further +info Related competencies
include T051 C
DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4 13
RICS B u il d i n g L egal brie fs
su rv e y in g J O U R N AL
Legal
Terms and condition
A
Vivien King considers the legal issues
surrounding dilapidations and lease renewals
As the commercial property market
gradually picks itself up and dusts itself
off, parties to short-term tenant-friendly
leases granted in a poor market will begin
to review their positions. The
consequence will be a flood of lease
renewal applications made either by
tenants anxious to agree advantageous
terms ahead of a rising market, or by
landlords opposed to granting a new
lease on terms that no longer reflect a
poor letting market or who wish to
refurbish for an improving market. In the
midst of frantic, contentious negotiations,
the importance of dilapidations pursuant
to the expiring lease will often be
forgotten. Whether in the landlord or the
tenant camp, do not let this happen
without giving the potential problems
thought and consideration.
When advertising or seeking premises,
the physical condition is all important.
However, when a previously negotiated
lease is simply being renewed, this is
often low down the list of the parties’
priorities. If asked, many would say they
assume the physical state of the
property when originally let is still
relevant to the new terms. Often, however,
the question simply never arises.
The upshot is that a tenant may find that
its own fixtures, installed at its own cost at
the commencement of or during the
expired term will have become part of the
landlord’s premises and now fall under
14 DECEMBER 2013 / jANUARY 2014
covenants to repair and yield up provisions
pursuant to the new lease. They might
even become rentalised under any rent
review provisions in the new lease. And a
landlord, seeking reinstatement of its
tenant’s works conducted during the
expiring term may be faced with the
argument at the end of the newly granted
lease that those works constitute the
demised premises and fall outside the
ambit of reinstatement requirements
under the terms of the new lease.
Costly mistakes by both parties, but how
did they arise and can they be avoided?
“
In the midst of
frantic, contentious
negotiations, the
importance of
dilapidations pursuant
to the expiring lease
will often be forgotten
As any dilapidations adviser will tell
you, the physical condition of the
premises at the commencement of a
lease is highly relevant to the standard
of repair applied at the term end. That
of course, in the context of this article,
begs the question as to what constitutes
‘the premises demised’. The answer is
that unless the lease states otherwise,
the demised premises will include not
just the structural shell of the property
but also any fixtures affixed before the
new lease commencement date.
Generally, it matters not who carried
out the works or why.
So, there is one self-evident avoidance
tactic – the new lease could state that the
demised premises should constitute not
the premises as they physically exist at
the commencement date but as they
existed at the date the previous lease was
granted. To avoid the obvious
disagreements that would arise from such
wording, the previous physical state could
be agreed and described in the lease by
the parties. If such a path is undertaken,
the landlord must not forget to extend, if
such is required, any reinstatement
covenant pursuant to the original lease. It
must be clarified within the covenants of
the new lease that the works conducted
by the tenant pursuant to the expired
lease must be reinstated pursuant to the
terms of the new lease as well.
Alternatively, before the grant of the
new lease, the parties could negotiate a
dilapidations claim under the terms of the
expiring lease, including reinstatement
works. The terms of any agreement could
either be satisfied by a monetary payment
made prior to the grant of the new lease
or, more usually, an agreed schedule of
works could be annexed, to be conducted
either during the term or at the expiry of
the new lease together with any further
works that have fallen due.
Either way, the matter will have been
considered, negotiated and agreed on.
There will then be no surprises to
either party. C
Vivien King is a Consultant to Malcolm Hollis
vivien.king@malcolmhollis.com
Further +info
Related competencies
include T051 C
 A DV ERTISING RI CS Bu i ld i ng
surv ey ing JO UR NAL

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D E C E M B E R 2 0 1 3 /j A N U A R Y 2 0 1 4 15
RICS B u il d i n g
Surv e yi n g J OU R N AL
Out in the cold
T
Stephen Lemmon discusses the impact
of the upcoming R22 gas restrictions
Those with responsibility for a
building with an air conditioning
system that is more than 10
years old should by now be
aware of the approaching ban
on the use of ozone-depleting
R22 from 1 January 2015.
Actually, it will continue to
be perfectly legitimate to use
R22 in existing systems
beyond 2015; however should
the maintenance of the
system necessitate decanting,
handling or topping up the
R22, some repairs will be
prohibited. If such a failure
occurs, the equipment may
have to be replaced or
significantly altered. The work
required will depend on the
type of system involved and
its existing condition.
In some systems it is
possible to retrofit a new
refrigerant gas (called a
‘drop-in’). However, this type
of work is not always
approved by the
manufacturers, may not carry
a warranty, can be prone to
technical problems and may
also lead to a reduction in
performance. This could
constitute a breach of the
repairing covenant (or a
16 DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4
D ilapidations
R22
covenant to maintain equipment
to ‘operate properly’).
Refurbishment of chillers,
involving the replacement of
other components and the
refrigerant is possible but
often the best engineering
solution for VRF/VRV systems
is to replace the equipment
outright, particularly where
the existing pipework is old,
or a significant layout change
is required.
What action should be
taken? In the case of
owner-occupied property,
clearly the onus will fall on the
owner to carry out the
required work to prevent
downtime in the future
replacing equipment that
cannot be repaired legally. But
the situation is rather more
complex for leased property.
The precise wording of the
lease will certainly play an
important part in determining
which party is responsible for
the works (and their nature
and extent) but so too will the
timing of lease end.
Tenants
For tenants with leases
ending before 1 January 2015
the answer is probably simply
to sustain good estate
management in continuing to
repair and maintain the
systems. It could be prudent
for the tenant to validate the
air conditioning just prior to
lease expiry to demonstrate
that the system is in good
working order.
For leases ending shortly
after 1 January 2015 the
situation is broadly similar. If
the systems are working well
with no history of problems it
could be possible for a tenant
to deliver up the system in
repair. Clearly there is always
a risk of a breakdown
occurring shortly after lease
expiry that cannot be legally
repaired, which could give
grounds for the landlord to
claim for a new system.
However, the tenant could
argue that, even if the R22
system was delivered up in
repair, the landlord would still
replace it because no
reasonable tenant would take
on the property in 2015 with
an R22 system.
Where a tenant’s lease
ends well beyond 1 January
2015 the tenant will need to
take action because if they do
nothing there is a very good
chance of breakdown and the
system becoming obsolete.
Again, the tenant may decide
to live with systems out of
repair if they feel they have a
strong argument for saying
that any repair works would
be superseded by the
landlord’s refurbishment or
redevelopment plans.
Landlords
For leases ending before or
just after 1 January 2015 there
is a good chance that the
landlord will be handed back a
building with its undesirable
R22 system. Faced with this
situation landlords must try to
establish whether the system
is in disrepair prior to lease
expiry. Reviewing the
Image © Malcolm Hollis
maintenance records and, if
access can be agreed with
the tenant, validating the
systems would be
recommended. If repairs are
required that cannot be
legally carried out, this may
enable the landlord to
substantiate a claim for
system replacement.
For leases ending long after
1 January 2015 – and assuming
that the tenant is undertaking
some remedial works – it is
important that the landlord
takes the opportunity to
monitor the works to ensure
they are an appropriate
engineering solution.
To conclude, dilapidations
claims relating to building
services can be extremely
substantial, not least as items
such as air conditioning are
expensive systems requiring
constant upgrading in order
to maintain both function and
statutory compliance. Many
leases will not have been
drafted with this in mind and
there can be little doubt that
R22 disputes will arise. It is
hoped that the subsequent
case law that emerges will,
over time, serve to provide
greater clarity over further,
future phase-outs. C
Stephen Lemmon is a Partner
at Malcolm Hollis
stephen.lemmon@
malcolmhollis.com
Further +info
Related
competencies
include
T051, T013
C

Neil Gilbert explains the definitions behind lease repair covenants
Every word counts
W “
hile the general
principle that each
word in a lease repair
covenant must, if
possible, be given a
separate meaning
is true, it is also
important to look at the whole covenant
at face value. What were the intentions
of the parties at the time of signing the
lease? It can be easy to miss the detail
or the theme of the covenant.
It is generally understood that the
standard of repair required of any lease
should have regard to the age, character
and locality of the property in question
and the works that would make them fit
for occupation of a reasonably-minded
tenant of the class likely to take them.
For example, the standard of repair to a
Grade A office on a smart business park
will be substantially higher than that to a
1970s office in a town centre high street.
However, while this is the general
rule, the repair covenant requires close
scrutiny to identify any wording that
may influence this position.
In basic terms, the requirement to keep
premises in repair is the same as to put
and keep it in repair, in that the obligation
extends to the tenant having to undertake
such repairs that put the premises into the
state required by the lease, and then
keeping it in that state until expiry. Where
the covenant is simply to repair, this also
implies ‘to put and keep’; regardless of the
D ilapidations
standard of repair
exact wording. Furthermore, additional
words such as ‘from time to time’ or ‘at all
times during the term’ add nothing to the
outcome of the covenant except to specify
an approximate timeframe.
Lease repair covenants continue to
be written in the ‘torrential style’ in that
they contain a number of additional
expressions that more often than not
mean the same thing. They may also
include qualifying expressions such as
‘good’ and ‘substantial’, or ‘support’,
‘uphold’ and ‘maintain’. These terms add
little weight to the repair obligation.
However, the terms ‘tenantable’ and
‘habitable’ do emphasise the importance
for the state of repair not to affect a
tenant’s ability to occupy. In fact, use of
the term ‘condition’ in the repair covenant
imposes a more onerous obligation on a
tenant where the emphasis is on the state
in which the premises are to be kept, in
addition to the overarching requirement
to ‘repair’. While the terms ‘repair’ and
‘condition’ have separate meanings, there
is often overlap. The cases of Lurcott v
Wakeley [1911] and, again, Credit Suisse v
Beegas Nominees Ltd [1994] reinforce
the difference in meaning. In the latter
case, the obligation was to keep the
subject matter maintained to a given
standard, and this would only be required
if it could be proven that the subject fell
below that standard.
There are several terms that place an
obligation on a tenant that enlarge the
covenant and extend liability past simple
repair. The presence of the terms
‘rebuild’, ‘reconstruct’ and ‘replace’ in a
covenant were tested by two cases,
Norwich Union Life Assurance Co Ltd v
British Railways Board [1987] and New
England Properties Ltd v Portsmouth
New Shops Ltd [1993]. Both ruled that
these terms extended the tenants’
repairing liability far beyond the usual
requirement to keep the premises in good
and substantial repair.
However, inclusion of the term ‘renew’
adds little to the covenant, because most
repairs will involve the renewal of
subsidiary parts, and some degree of
improvement. This was proven in the
DECEMBER 2013 / jANUARY 2014
RI CS Bu ild i ng
su rv eyi ng JO UR NAL
Repair covenants
are often brief
but the wording
used is of critical
importance when
assessing liability
cases of Janet Reger International v
Tiree [2006] and, again, in Credit Suisse
v Beegas Nominees Ltd [1994].
It is rare to find a repair obligation that
expressly requires a tenant to rectify
‘defects in the construction or design’ of
a building. However, where such defects
have caused physical damage, then the
tenant may be liable to repair not only the
defect but also the underlying cause.
In summary, repair covenants are often
brief but the wording used is of critical
importance when assessing liability.
Surveyors must take care when reading
them, to properly understand the
underlying meanings behind the wording,
before and during their inspections,
and before preparing a Schedule of
Dilapidations. Care must be taken not
to overestimate liability to suit clients’
wishes, which sometimes expect a
property to be yielded up in perfect repair.
This is an obligation that is scarcely ever
seen in a commercial lease. C
Neil Gilbert is Partner and Head of
Dilapidations at Tuffin Ferraby Taylor
ngilbert@tftconsultants.com
Further +info
Related competencies
include T051, T013 C
17
RICS B u il d i n g E nergy per formance
su rv e yi n g J OU R N AL

Eimear Moloney looks at the technical and behaviour

reasons behind higher than predicted energy use in buildings

Mind the gap

T
he term ‘performance
gap’ was coined by the
construction industry
to label the difference
between the predicted
and the actual energy
consumption of
buildings. And it is huge. CarbonBuzz
quotes real energy use at 1.5 to 2.5 times
higher than predicted. So what is going
wrong and what can be done about it?
As can be expected, there is not one
single answer. But in broad terms the
energy performance gap is caused by
anomalies that fall under one of two
headings; technical and behavioural.
Technical
The technical issues can be attributed
to the functioning of the mechanical and
electrical systems within a building and
can, in the majority of cases, be analysed
by investigating the building
management system (BMS). It should
also be noted that in some instances,
what is attributed to technical issues
can be more to do with how the energy
predictions were made.
For a period it seemed that some
were using Building Regulations Part L
compliance results as energy predictions
when, in fact, not only are these
unsuitable but they were never intended
for this use.
Behavioural
Behavioural issues are generally more
complicated and difficult to predict,
ranging from how occupiers use their
heating and cooling controls to how the
building manager has set up the
maintenance routines.
What can be done?
Of the numerous industry initiatives to
help reduce the performance gap,
probably the most well-known and a good
catch-all is the BSRIA Soft Landings
framework. This is a methodology for the
briefing, design and handover of buildings
that aims to smooth the transition from
construction to operation and use. Central
government has chosen to adopt
Government Soft Landings, which is a
similar framework. Some developers are
favouring energy performance
contracting, and the BREEAM New
Construction 2011 guidance recommends
a series of aftercare measures.
Perhaps the minimum that should be
done is to extend building design
contracts beyond the 12-month defects
period. BREEAM and BSRIA Soft
Landings recommend that designers’
involvement should be three years
post-handover. The benefits are
evidenced in numerous case studies and
it is likely that the additional cost to the
client will be written off against the energy
savings made. If energy use is 1.5 times
greater than predicted, then the potential
to save is huge.
The activities undertaken during the
extension of contracts could take in those
listed in the BSRIA Soft Landings document,
which include various site visits and
reports. As a minimum they should:
bb analyse and interrogate the BMS on a
regular basis
bb review how the building is being
used through a building user survey or
a building performance evaluation and,
most importantly, react to the findings
bb retrain the building or site manager in
how all the systems work – it is likely they
will have forgotten.
All of the above are easy to include in a
standard contract and, added to an
improved level of user training at project
handover, will ensure that any new
building will be on its way to a significantly
reduced performance gap. C
Eimear Moloney is an Executive Engineer
and Performance Specialist at Hoare Lea
eimearmoloney@hoarelea.com
Related competencies
include T051 C

Case study
A 68-bedroom student newbuild
hall of residence was completed in
2011 and a building energy
optimisation investigation began in
2013. One of the central areas of
focus was the domestic hot water
system, which included a
combination of solar hot water and
gas-fired water boilers. Following
a series of optimisation exercises
to the building management system,
the solar system performance
has increased, allowing the gas
boilers to do only the minimum
amount of work.

18 DECEMBER 2013 / jANUARY 2014


In the second of our series on how RICS is using building information
modelling (BIM) on its London head office, Les Pickford looks at the
challenges of producing an estimate from the data in the initial 3D model
Overcoming the hurdles
E
BIM
arlier this year, Severn Partnership conducted
a laser survey of the RICS Parliament Square
(PSQ) headquarters. “This has been rendered
into a basic 3D CAD model and we now have
an Industry Foundation Classes [IFC]
standard output from it,” says Paul Burrows,
a Solutions Architect with the RICS Building
Cost Information Service (BCIS).
Burrows describes the IFC standard as “a container into
which all of the different applications being used by the various
disciplines collaborating on BIM can put their content, so that it
can be shared”.
So, how will the model be used in estimating? In simple terms,
Burrows explains: “If we can get the quantities from the BIM
model, then we can use the BCIS schedules of rates against
those quantities, and then produce an estimate.”
He is working with cost-estimating software provider
Nomitech, which has incorporated standard BCIS schedules of
rates into its CostOS v4.6 application, to understand its
software tools and their capabilities. The next steps are to
include information such as BCIS inflation indexes and location
factors, says Burrows.
Nomitech’s involvement builds on its previous work with
BCIS. The provider is working through the IFC output and
producing a list of questions. Half of these are about the BIM
model, such as whether quantities can be measured and
estimates produced, says Burrows. “The rest are due to PSQ
being an old, complex building.” Once the review is complete it
is likely that the model will need refining.
Model issues
Because the model is not complete, it is difficult to draw up a
detailed estimate, says Nomitech Chief Executive Tolis
Chatzisymeon. “But we can produce an estimate by making
assumptions, for example about the thickness of reinforced
concrete, and by using formulae to calculate the details of the
roof, which had been defined as a single object and so didn’t
contain information for slopes, slates, and so on.”Nomitech’s
review has identified some queries to be resolved, including:
bb insufficient clash detection
bb walls (e.g. naming conventions do not match and basement
walls do not start over the slab on grade)
bb slabs (e.g. incorrect slab-on-grade thickness and some
slabs are missing)
bb windows (e.g. materials are not stated and not all
dimensions are tagged).
This is where a quantity surveyor’s expertise will ensure
that mistakes are corrected and assumptions valid, says
Chatzisymeon. “Without human input there will be mistakes
because there are no perfect models.”
BIM challenges
One of the RICS aims is to communicate the challenges of
implementing BIM, so that others can learn from the
BUILDING IN FO R MATIO N RI CS Bu ild i ng
MO DELLING su rv eyi ng JO UR NAL
experience. Burrows says there are a range of hurdles to
overcome, including:
bb Technical glossary: there is no standard nomenclature used
by different professions, and even between different surveying
disciplines. BCIS talks about an ‘element’ as a functional cost
element of a building, but engineers, the IFC standard and the
new Uniclass standard all use slightly different definitions
bb New v old: do not assume you can pre-assemble a detailed
BIM model from libraries of information, because many will not
properly represent the construction forms of older buildings. Most
PSQ windows, for example, are 19th-century windows, which are
ornate, specialist items not found in standard rates schedules
bb Costing elements: elements’ well-defined boundaries may
not be easy to represent in a 3D model. An architect may, for
example, draw a wall as a single item from the foundations up to
the roof. But when quantity surveyors split it into cost elements,
they might put part of that wall in the substructure and part in
the internal or external walls
bb Scanning an existing building: a laser scan will only record
visible surfaces. For anything within the structure, assumptions
will be needed. This covers not just embedded building services,
but also the structure itself. Knowing fabric details is useful
when making repairs, but these will not be in the BIM model until
somebody opens up that fabric and enters the data.
There are many benefits for RICS and its members, but
producing quantities, specifications or estimates from this type
of BIM model will not be a case of just clicking a button,
Burrows cautions. “An expert will probably take a few days
to produce a detailed estimate for an insurance rebuild
assessment. But for something less easy, such as a
refurbishment project, we’d need a lot more time.” C
Les Pickford is a freelance writer and editor
lespickford@yahoo.co.uk
Further +info
The project team will be sharing its experiences
through the RICS technical journals and regular
updates on www.rics.org/bim and LinkedIn
discussion groups
Web classes at rics.org/webclass
31 January 2014 Implementation of BIM
Execution Plans
13 February 2014 BIM Series 3/3: Use of
data management systems for collaborative
working
Related competencies include T013
C
DECEMBER 2013 / jANUARY 2014 19
RICS B u il d i n g Basements
Surv e yi n g J OU R N AL
To gain more space many
owners have already
extended up, out and
back, which leaves only
one option – downwards
with a retrofit basement.
Matthew Hearsum
explores the legal
implications
M
Going underground
Many surveyors, architects and
developers are unaware that basement
extensions can be a minefield of liability,
not just for the building owner, but also
for their design team. This is because
almost all basement extensions are
subject to one or more of three provisions
of the Party Wall Act 1996.
First, any excavations to form the
basement that are within 3m or 6m
(depending on their depth) of any building
or structure on the adjoining land are
subject to section 6 of the Act.
This is potentially a wide provision,
because ‘structures‘ is a very broad term.
It might include a patio, a hard-standing
and even a garden shed.
The party undertaking the works, the
‘building owner‘, must serve a notice on any
adjoining owners at least one month
before works are due to start.
Second, any underpinning to a party
wall (i.e. a wall that sits astride the
boundary line, or that separates two
buildings, or both) are subject to section
2(2)(a) of the Act. The building owner
must give not less than two months’
written notice of proposed works.
20 DECEMBER 2013 / jANUARY 2014
If the adjoining owner does not consent
to the works within 14 days, then a
deemed dispute arises. And deemed
or actual disputes must be determined
by a tribunal of surveyors before work
can commence. Either both parties
agree on one surveyor (referred to as
an ‘agreed surveyor’) or each party
appoints one surveyor and the two of
them select a third in case they cannot
agree. The agreed surveyor or tribunal
of surveyors then issues an award
under section 10 of the Act determining
the dispute.
Third, if the building owner wants to
place any type of reinforced foundations
(called ‘special foundations’ in the Act)
on the adjoining land, for example as
part of underpinning, section 7(4)
requires that the adjoining owner must
give specific written consent to this being
carried out. This is an absolute restriction,
and the adjoining owner can withhold this
consent even for unreasonable or
capricious reasons.
Liabilities
If the building owner wants to undertake
any of these works they should be
advised of, and carefully consider with
their design team, the potential liabilities
imposed by the Party Wall Act.
Section 7(1) places an obligation on the
building owner not to cause ‘unnecessary
inconvenience’ to adjoining owners or
occupiers. This implies that some
inconvenience is necessary, or
unavoidable. The building owner, and the
design team, must be careful not to cross
the line into unreasonable inconvenience,
i.e. that which could be avoided by taking
reasonable steps.
The question of what constitutes an
unnecessary inconvenience is a question
of fact and degree in each case. As was
famously said by Lord Justice Thesiger in
Sturges v Bridgman: “What would be a
nuisance in Belgrave Square would not
necessarily be so in Bermondsey.”
Whether the inconvenience is
unavoidable is decided by the party wall
surveyors who, under section 10(12) of
the Act, have the jurisdiction to determine
the time and manner in which the works
are executed.
Further, under section 7(2) the building
owner must compensate the adjoining
owner for “any loss or damage” that
results from “any work executed in
pursuance of” the Party Wall Act. This is a
simple causative test that, essentially,
imposes strict liability on the building
owner for damages and loss arising both
for the design and the construction works.
The adjoining owner need only show
that the loss claimed resulted from works
undertaken under the Party Wall Act.
They do not have to prove that the
building owner, their design team or their
contractor was negligent, or that the loss
was reasonably foreseeable. It is also
unlikely to be a defence that the building
owner took reasonable precautions to
prevent the loss.
Let’s take an example. Mr Jones buys
Whiteacre, a three-storey townhouse in
the middle of a terrace in Westminster.
The terrace sits on London clay. For
years there has been seasonal heave and
desiccation of the clay. However, because

the whole terrace moved as one, there
was minimal cracking. Mr Jones
constructs a retrofit basement, creating a
hard spot in the middle of the terrace.
This causes differential movement
between Whiteacre and the adjoining
properties, which in turn causes
substantial cracking and decorative
damage each year.
The underpinning to Whiteacre, which
are ‘works in pursuance’ of the Party Wall
Act, would be the cause of the damage.
Therefore, Mr Jones would have to
compensate his neighbours for the
resulting loss; including, for example,
decorative repair, or perhaps even major
stabilisation works. This might also be a
breach of the duty not to cause
unreasonable inconvenience under
Section 7(1) of the Act.
Section 7(2) does not just cover
physical damage, but may also cover
resulting financial losses, such as loss of
rental income, loss of trade, and
potentially diminution in value to
neighbouring properties.
Restriction on
future development
When formulating a project that involve
works to which the Party Wall Act applies,
the design team must take care not to
restrict the development potential of the
adjoining buildings.
Let us return to our example of
Whiteacre. Mr Smith constructed his
retrofit basement with a common
‘basement box’ design. It comprises
Original design
k1
Diagram © Simon Pole, Pole Structural Engineers
“
The building owner, and the design team,
must be careful not to cross the line into
unreasonable inconvenience that could
be avoided by taking reasonable steps
reinforced underpinning tied to a
concrete raft or slab at the base (Figure 1).
Depending on the design of the
basement, the reinforcing may operate as
a cantilever transferring the load entirely
on to Whiteacre (Figure 2). The adjoining
owner has no right to undertake works to
strengthen or underpin the foundations
beneath Whiteacre. Mr Jones’ works,
therefore, effectively caps the load that
the party wall and its foundations can bear.
This in turn limits the development
potential of the neighbouring properties;
for example, it may prevent a mansard loft
conversion (which would add extra weight
to the party wall), save at uneconomical
expense. Mr Jones’ new basement may
also substantially increase the cost of
constructing basement extensions under
the adjoining properties.
The additional cost of the adjoining
owners work caused by the basement box
would be a loss as the result of ‘works in
pursuance’ of the Party Wall Act. Mr Jones
would therefore have to compensate the
adjoining owner for that loss.
Further, in locations where loft
conversions or retrofit basements are
common, if not expected, the inability to
viably undertake such extension may
impact on the value of the adjoining
properties. If there is a loss of value (and
there would have to be clear and cogent
valuation evidence of this) then Mr Jones
may well end up having to reimburse the
adjoining owners that loss of value.
If and when Mr Jones receives a demand
from his neighbours for compensation
Modified design with mass
k2 concrete
DECEMBER 2013 / jANUARY 2014
RI CS Bu ild i ng
s urv ey ing JO UR NAL
under Section 7(2) he would, quite
understandably, look to his design team
for an explanation, and probably for a
contribution to some or all of the loss sought
by his adjoining owners on the grounds
that they did not advise him of the risks.
As can be seen from the examples,
undertaking a retrofit basement extension
carries significant potential liabilities. The
design team must consider carefully how
the proposed basement might affect
adjoining properties in terms of avoiding
unnecessary inconvenience to adjoining
owners and occupiers, preventing physical
damage during the works and in avoiding
limiting potential future development of the
adjoining properties. They must also
ensure that the building owner
understands and appreciates these risks.
It is also worth bearing in mind that
liability under the Party Wall Act is personal
to the building owner, and is not transferred
to any subsequent owner of the building.
A claim might therefore be made against
the building owner years after the work is
complete and their property sold.
It is, however, possible that subsequent
owners of Whiteacre may also become
liable if they fail to take steps to abate
what may be a common law nuisance to
adjoining properties.
The design team and indeed the party
wall surveyors should also consider their
respective positions carefully. If they fail
to ensure the building owner understands
all of the risks, they may be held in breach
of their contractual and statutory duties
of care. The building owner might well
seek a whole or partial contribution from
his design team. C
Matthew Hearsum is an Associate Solicitor
and Arbitrator specialising in Dispute
Resolution at Morrisons Solicitors
matthew.hearsum@morrlaw.com
Further +info
Related competencies
include T051 C
21
RICS B u il d i n g I nsurance
Surv e yi n g J OU R N AL
Before agreeing to a new contract it is vital to evaluate
whether any liabilities that might arise are covered by your
professional indemnity policy, advises Emma Vigus
Checking the terms
I
t is rarely the case that all liabilities will be
insurable and any uninsurable liabilities
represent a risk against your balance sheet. In
tough times, when business is slow, a thorough
review of contracts may be overlooked in
favour of getting on with the job. Given the
breadth of cover offered by the RICS
professional indemnity insurance (PII) policy, it
is also understandable why it is assumed that all liabilities will be
covered. Unfortunately, this is not the case. Some contractual
documents contain clauses that impose uninsurable exposures.
While occasionally possible to extend PII cover, there are
exposures insurers will not cover, i.e. an agreement to perform to a
standard beyond ‘reasonable skill and care’.
Recently, the spotlight has fallen on lenders’ contracts with
valuation surveyors, but some of the broadest agreements
originate from the public sector. It is often perceived to be
impossible to negotiate contractual terms with any public sector
body, or indeed many commercial organisations. While taking
issue with particular clauses may prove fruitless, it is important
to understand what a typical RICS PII policy does and does not
cover. If nothing else, this should ensure you are able to give due
commercial consideration to the impact of signing up to a
particularly onerous agreement
Standard of care: Review this clause before anything else in the
agreement. You should not be required to perform to a standard
beyond ‘reasonable skill and care’. Avoid signing any agreement
where the term ‘reasonable’ is omitted or one that includes
words such as ‘proper’.
Fitness for purpose/express guarantees of performance:
These should always be avoided. They represent a guarantee
that you will achieve a result, rather than a professional duty;
consequently no cover is offered under a PII policy. Be careful to
avoid other less obvious forms of guarantee, for instance:
“undertakes to properly design” or “will comply with”.
Assignments of a warranty or other agreements: Collateral
warranties and other duty of care agreements can generally
be assigned to third parties. However, assignment is usually
restricted by PII; twice to financiers and once to other parties,
although some insurers will agree to increase this. You should
also avoid agreeing to any warranty or agreement that
provides greater or longer lasting benefits than that given to
the party with whom you originally contracted. It is
unreasonable to expect an insured to extend a greater duty of
care to a future interested party than was provided to the
initial client.
22 DECEMBER 2013 / jANUARY 2014
Novation: A Novation agreement should not increase your
obligations or liabilities in any way.
Net contribution clauses (NCC): When working as part of a
team, you may be subject to the law of joint and several liability
under the Civil Liability Act 1961. This could leave you picking up
100% of the client’s loss, regardless of your own level of
negligence, for instance if other contractors become insolvent.
An NCC should, to a large degree, negate this position. If this is
not achievable, ensure that all members of the team have signed
the same warranties and/or agreements as yourself.
On demand indemnity: It is always preferable to resist signing
indemnity clauses because they can restrict the insured’s / insurer’s
ability to defend a claim. By effectively guaranteeing to pay the
client if they suffer a financial loss, it could be argued that the
insured is pre-admitting liability, putting them in breach of the claims
conditions in a PII policy. In addition, there will potentially be losses
indemnified within the clause that are excluded by PII policies.
Indemnity agreements: These require agreement to indemnify
the contracting party for losses that can go beyond those
normally recoverable at law, e.g. “all damages, losses, costs and
demands of whatever nature”, irrespective of how they arise.
Agreements of this type should be avoided, but where this is not
possible, they should only reflect your position in the absence of
the clause, which is for reasonable foreseeable losses caused by
the failure to carry out your services with reasonable skill and care.
Deleterious materials: Many PII policies either exclude cover for
pollution or asbestos-related exposures or have a reduced (and
aggregate) limit of indemnity for claims arising. You should also
ensure that you understand exactly what is meant by pollution
– does it, for example, include Japanese knotweed?
Adjudication/arbitration: This is often specifically addressed in
the PII policy, but it is important to ensure that any nominated
adjudicator is independent, that their decision is not binding and
may be referred to in a court of law.
Contractual penalties or liquidated damages: Damages should
be assessed according to the loss suffered by the claimant. The
imposition of penalties goes beyond the normal principle of law
in that the defendant is required to pay more than an indemnity.
Consequential losses: While these are not generally excluded
under PII, it is sensible to avoid agreeing to them. It should be up
to a court of law to assess the damages according to the loss
suffered by the client.
 RI CS Bu ild i ng
su rv eyi ng JO UR NAL

accepted by private clients. If limitation is acceptable it is

important that it is ‘reasonable’ as defined by the Unfair Contract
Terms Act 1977, and is bought to the attention of the client and
specifically agreed.

Understand your PII policy: Declare all material information at

renewal and throughout the policy year. Pay attention to terms
and conditions, because failure to meet them could void your
insurance. Ensure that you understand exclusions and sub-limits.

Territorial insurance requirements: If working abroad, ensure

that your policy covers work in overseas territories, particularly if
you are subject to non-UK contract law. Ensure that you comply
with local insurance requirements, for example the need to carry
a fronting policy or a decennial liability in jurisdictions that have
adopted French Civil Code i.e. the Middle East.

Check the level of indemnity you are asked to offer: Is it in line

with your own limit? This can raise issues for sole traders, who
may be required to significantly increase the limit to work on
public-sector contracts. The cost of any increase should be
evaluated before taking on a new contract. Any increase in limit
should be maintained for at least six years after project completion.

Alterations to PII cover: Some agreements require PII to be

maintained unaltered for a specific period of time. Because PII

“
is renewed annually, with changes to the policy wording and
premium largely determined by third parties, it is important to
qualify any clauses requiring you to maintain it unaltered by
stating you will maintain it provided the insurance remains
While taking issue with particular available at commercially reasonable rates.

clauses may prove fruitless, it Insurance cover required: Contracts often stipulate
is important to understand requirements for PII cover and other forms of insurance such
as employers’ and public liability. While generally a reasonable
what a typical RICS PII policy requirement, sole practitioners are often subject to the same

does and does not cover
Subcontracting: Check whether the agreement prevents
subcontracting to a third party. Where the use of subcontractors
is allowed, ensure that their own PII cover complies with the
requirements of the contract.
Check the payment terms: Be aware of the circumstances
under which a client can withhold payment. This is important
because payment demands may lead to a counterclaim
of negligence.
requirements as larger businesses. Consequentially, they may
have to buy employers’ liability cover even though the legal
requirement to purchase it does not apply to a company only
employing the owner.
Many businesses forget that their insurance broker can assist
them beyond the mere gathering of competitive quotes. Firms
should not be reluctant to call for advice. If for whatever reason
that facility is not available, guidance from an appropriate
qualified lawyer should be sought. C

Copyright: Protect your own copyright and ensure that any

More information
>
documents used by the client are only ever used for the purpose
for which they were prepared. Howden Windsor guide to the RICS minimum terms
http://bit.ly/18jccN0
Limitation of liability: Insurers often encourage their insured
to limit liability under contract. While desirable, this is rarely RPC Limiting liability for professional firms
achievable, although we understand it to be more commonly www.howdengroup.com/brochures/rpc---limiting-liability.pdf

Related competencies Emma Vigus is Director of Howden Professional Risks, the RICS
include T051, T013, preferred professional indemnity broker
M009 emma.vigus@howdenwindsor.com

DECEMBER 2013 / jANUARY 2014 23

RICS B u il d i n g G U I DA N C E N OTE
Surv e yi n g J OU R N AL
Michael Scott explains the background behind
the RICS Design and specification guidance note
G
Leading the design
Gone are the days when the client
could rely on one designer, often
referred to as the ‘architect’, to
formulate, procure and supervise their
construction projects. The professional
development of the specifier, the
architectural technician and the growth
of integrated construction products and
building systems after the Second World
War saw this illusionary role fade from
larger commercial projects, although a
cosy sense of single point control for
smaller scale projects remained.
The growing part played by the
professional developer client and the
proliferation of interventions from third
party user and UK investor interests
sounded the end of complacency
towards design responsibility in
building specifications. Expressions of
the longer term interests in project
outcomes were manifest in the 1970s
with the growth of product and system
guarantees, a wider application of
collateral warranties and the emergence
of life cycle analysis and other critical
facility management techniques.
The subsequent focus on the building
specification as a fundamental tool in
solving the client brief and meeting their
perception of success has had two
important influences in the UK
construction market:
bb change in the organisation of
professional project services
bb move towards the standard technical
specification writing.
The 1980s saw the emergence of the
multidisciplinary consulting practice, an
24 DECEMBER 2013 / jANUARY 2014
organisational structure that sought to
manage the diverse process of design
and specification in the UK under a single
management umbrella. These service
models grew through the 1990s, suiting
the market trend towards a consolidation
of professional resources.
However, the drawbacks of the
multidisciplinary practice for the
small- to medium-sized project can be
high consultant overheads and the ever
increasing distance in relationships
between the client, their project
representative(s) and the end specifier.
Lead consultant
Enter the role of the lead consultant and
their task of co-ordinating and integrating
design services into a project-based
specification. In the Design and
specification guide, recently published by
the RICS, the lead consultant is portrayed
as an experienced professional working
within a service-based consulting
organisation with limited or narrow
in-house design resources.
The guide is aimed at the small- to
medium-sized construction project.
Meanwhile, the RICS publication
Managing the design delivery provides
good practice guidance for lead
consultant and other project team
professionals on larger projects.
The project model adopted by the Design
and specification guide reflects a staging
of tasks and specification processes
familiar to the experienced professional.
The recently updated RIBA Plan of Work
is a useful tool for the lead consultant in
reviewing their work and that of others in
the project team during and at the end of
each stage.
Staging RIBA Plan of Work
Project team appointments Work St age 1
Establishment of the brief Work St age 1
Resource planning Work St age 1
Outline proposals and Work St age s
scheme endorsement 2 an d 3
Production of detailed Work St age 4
design
A key task during the development of
the brief is to establish a system of risk
management that can identify and
monitor design uncertainty and positions
the client to make suitable and timely
commitments in design resources. The
lead consultant will need to anticipate
and advise on the impact of some or all
of the following pathways:
bb procurement methods i.e. design and
tender v design and build
bb selection or nomination of products,
systems and service providers
bb client attitudes towards design risk
and project uncertainty
bb specific performance benchmarks
bb application of life cycle costs and
building information modelling (BIM).
Technology
It is hard to over-exaggerate the influence
that ICT has had on professional practice
in the past 20 years. The challenge for
the effective lead consultant is to keep
abreast of technological change, not only
in their own sphere of service provision
but also from inside their client’s
business and the project supply chain.
ICT systems provide an undeniable
resource and yet pose a co-ordination
and integration challenge. No better an
example can be seen than the slow
application of BIM, especially in the small
to medium-sized project.
The resource benefits of ICT and BIM:
bb productivity in generating the design
and specification
bb maximising the potential of
standardisation in specification
bb quicker reactions to design change
bb inclusive communications within the
project team (in theory) and across the
wider supply chain
bb accurate and focused project
feedback.
The challenge is in:
bb maintaining the creative approach and
original thinking
bb avoiding the use of closed and near
redundant data systems that cause confusion
and poor post-completion feedback
 RI CS Bu ild i ng
su rv eyi ng JO UR NAL

bb communication of elaborate and the RICS publications Developing an More information

unfamiliar system specific protocols.
The handling of ICT throughout the
project timeframe (and beyond) is
emphasised by the Design and specification
guide as a common theme in good practice
that no lead consultant can afford to
ignore, however small the project.
Traditional practice still remains part of
modern project services. The detailed bill
of quantities prepared in accordance with
the latest national rules of measurement
may have been consigned to the larger
project environment, but the familiar triple
partitioned specification; (A) preliminaries,
(B) materials and workmanship and (C) the
work schedule has endured.
The guide highlights the support given
for the specification format by the
common arrangement of work
convention and its role in promoting clear
and effective communications between
the project team. It makes reference
to the important update in 2005 as
part of the code of procedure for the
construction industry by the Construction
Project Information Committee.
The role of the lead consultant will extend RICS Design and specification guidance note
into procurement, project completion and
Storm 127.5x84.5 AW 06/03/2013 16:59 Page 1
occupation. Good practice is described in
appropriate procurement strategy and >
Contract administration. Design and specification guidance note
Design and specification factors http://bit.ly/1blHuai
affecting occupation and post-completion Managing the design delivery guidance note
performance criteria must be subject to http://bit.ly/1hfiO47
continual review by the lead consultant
Production information: a code of procedure
from project inception.
for the construction industry
Not unlike the challenge posed by the
http://bit.ly/16PP48e
application of ICT systems, the lead
consultant must gauge their experience Developing an appropriate procurement
and that of the design team against the strategy and selecting an appropriate route
guidance note http://bit.ly/1bmo0Wx
demands of the client and the project for
facilities management (FM) services. Contract administration guidance note
The relationship between design and http://bit.ly/17jrF32
post-completion performance is set to The strategic role of facilities management
strengthen with the steadily increasing in business performance guidance note
application of BIM and FM principles. The http://bit.ly/19Qus1h
lead consultant engaged on medium and
even small-scale project work would do
well to cast their eye over the RICS guide
The strategic role of facilities
management in business performance
and take a collective breath for us all. C
Further +info
Michael Scott is a Senior Building Surveyor
at Tuffin Ferraby Taylor LLP, and author of the
Related competencies
mscott@tftconsultants.com include T021

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DECEMBER 2013 / jANUARY 2014 25

RICS B u il d i n g APC
Surv e yi n g J OU R N AL
Laying down the law
Ewan Craig talks to Jon Rowling, fellow speaker at RICS annual ‘It’s your APC’
conference, about the legal and regulatory compliance core competency
L
egal and regulatory
compliance is one of
the core competencies
of the building surveying
Assessment of
Professional
Competence (APC).
It is a significant competency and
can influence the application and
recommendations on a range of other
competencies, for example:
bb Design and specification – Building
Regulations
bb Inspection – an appropriate form
of inspection type
bb Conservation and restoration –
planning legislation.
Specific issues will also arise in your practice
such as dilapidations, rights to light, party
wall matters or consents e.g. a licence.
The levels
At level 1
Demonstrate knowledge and
understanding of any legal/regulatory
compliance requirements in relation to
your chosen field of practice.
At level 2
Apply your knowledge to comply with
legal/regulatory requirements in specific
situations within your chosen field of practice.
At level 3
Provide reasoned advice and
recommendations to organise so that
they can comply with legal regulatory
requirement in specific situations within
your chosen field of practice. Represent
clients to statutory bodies or other parties
relating to legal and regulatory compliance.
You should be familiar with the legal and
regulatory issues in your submission
documents and be ready to address
questions on them and aspects related
to them.
Questions
The assessors will ask questions to
find out your level of competency. The
26 DE C E M B E R 2 0 1 3 / J A N U A R Y 2 0 1 4
questions are based around your
submission documents such as the critical
analysis, case study, summary of
experience or CPD record, depending
on your APC route. Three examples are
given below.
Please explain your reasoning behind
the advice to the tenant in building A
on the options for the method to
remedy disrepair?
This is aimed at level 3 on dilapidations.
The answer would show the issues that
were considered in reaching the advice.
The tenant is responsible only to
undertake (or fund) the most economic
form of repair that would satisfy the
repairing obligation. However, the landlord
can carry out a more expensive repair
and the tenant should still contribute
the cost of the more economic form.
A potential difficulty started to occur
because the tenant believed that the
landlord had only ever intended to
carry out ‘grand’ works. Under those
circumstances the tenant could argue
that the cost of repairs they would
otherwise have funded are superseded
by the works the landlord has completed.
The landlord was able to demonstrate
that an economic form of repair was
being considered for a prospective new
tenant, so the tenant was advised to
undertake the most economic form of
repair including the item.
Explain if your advice on the work on
the party wall award of building Z would
have varied if the building owner (BO)
and adjoining owner (AO) had talked
informally prior to your appointment
and the AO had not objected?
This is aimed at level 3. The answer would
explain pertinent issues and if they would
vary the advice given.
My advice would be to follow the
Party Wall Act 1996. This gives a formal
procedure and would reduce any
potential for a misunderstanding or any
subsequent challenge. The variation is
similar to Seef v Ho, when the BO failed
to follow the Party Wall Act that resulted
in damages awarded when the AO did
object. It is important to follow the Act,
even if the AO has not objected.
Explain the regulations to consider as a
designer for workers operating at height,
such as a walkway over a fragile roof?
This is aimed at level 1. The answer
would explain the specific regulations
and how they influenced the designer.
The safety of workers on the roof must
be considered under the Health and
Safety at Work Act 1974 and the Work
at Height Regulations 2005. Both the
height and the fragile roof covering would
be hazards. The designer has a duty
under the Construction (Design and
Management) Regulations 2007 to
eliminate or reduce any risk to people.
If the need to access the roof could not
be removed, a safe system of access
would be considered, such as a fall
protection system of guards to falls
and fall proof covers to the walkways.
Care
Given the time constraints of the APC,
you should give a brief but whole
response. The answers above are not
exhaustive; care should be taken to
demonstrate your own skills, abilities
and knowledge to the assessors. C
Thanks to Jon Rowling of Goodrow
Building Consultancy for his input
to this article
More information
>
For details on the APC pathway guide for
building surveyors, visit http://bit.ly/10yITaW
Ewan Craig is an APC assessor and the
Course Leader for the BSc [Hons] in
Building Surveying at the College of
Estate Management
e.craig@cem.ac.uk
Related competencies
include T051 C

Building
Construction
Conservation
Journal
Journal
OPINION
I
Cover Line
Catching the bug
Heading
xxx
PG. 16
If you want to be influential
you could do worse than
look around to see who
influences you, and how. I
caught myself quoting
William Morris, ‘beautiful,
useful, blah, blah, blah…’ in a
discussion about branding,
and realised that the
Society for the Protection
of Ancient Buildings is in
the conservation surveyor’s
DNA whether you are a
member or not.
Indeed, biological
metaphors are quite catchy
if you are planning on
‘going viral’, because ideas
are something you ‘get’
xx in working order
Back
Refurbishment of Windsor’s
xxx
Canons’ Cloister has revealed
PG. 16
details of its original structure
PG. 28
rather than are ‘given’. If you
want to catch the conservation
bug, your best bet is to hang
out with a few people who have
it already. And like the world of
pathogens, you want to be near
the heritage good-guys who
build our resilience.
But is an aspiration
to be influential just
self-aggrandisement? I hope
not because I cannot think
of anything worse than the
kind of vanity that makes
certain people (and
organisations) play Professor
‘iggins to my Eliza. “Why can’t
you be more like ME, ME,
ME?” Thought leadership
is the latest management
speak for being influential,
but this implies that others
follow. The work is more of
shepherding, harvesting, fishing
but I’ll leave you to work up
Membership of the Building Conservation Forum is FREE.
For more information, email conservation@rics.org
Seeing
xxx is believing
A pilot project could clear the
xxx
way for wider use of double
PG. 16
glazing in listed buildings
PG. 30
Lynda Jubb FRICS is Chairman of
the Building Conservation Forum
conservation@rics.org
the various biblical and rural
practitioner analogies.
So which ideas have been
most influential in the field of
conservation philosophy? Well
how about a quick game of
chestnuts and wildcards with
the following: Cullen, Wren,
Pugin, Hill, Pevsner? Testing the
strength of these big thinkers’
arguments is not philosophical
idling. This is proper training,
and amounts to building
intellectual muscle for the
heavy lifting the real world
throws at us.
In truth, the people who
have influenced me most are
not the big names, but just
practitioners and surveyors
like you and me. People who
make a little time to reflect on
the ‘what’ and the ‘why’. Small
is beautiful, so I don’t spend
too long mulling. But the
Green
xxx maintenance
Environmental
xxx sustainability
is becoming a key element in
PG. 16
evaluating repair strategies
PG. 32
December 2013/
January 2014
rics.org/journals
odd cuppa and a biscuit is
usually enough to galvanise
me to action. After all, what
are words without action?
Finally, who is philosophy
really for? Received wisdom
holds that we would wish to
influence policy makers, to
shape a world in which good
decisions are favoured and
bad ones founder. In practice,
I think the people who we
most want to influence are
our clients. We want to make
the historic environment a
place of opportunity not
burden and coercion, by
offering them more and
better choices.
So, as you can see, you
don’t need to be Plato to
have a good idea, but you
might need to be a good
influencer if you want to
get things done. C
Heritage Agenda
April/May 2013
Henry Russell’s regular
rics.org/journals
update on issues affecting
the conservation world
PG. 34
RICS B u il d in g r e f u r bi s h m e n t
conservation JOURNAL

Back in
working order
Refurbishment of Windsor Castle Canons’ Cloister has revealed
details of its original structure, as Martin Ashley reports

W
1

indsor Castle’s College of St George was statues. Once any

founded in 1348 as the spiritual home of archaeology had been
the Order of the Garter, and its chapel – St recorded we connected
George’s Chapel at Windsor Castle – is damaged rafters using trimmer
familiar to millions in the complex of Grade joints, allowing them to
I-listed and Scheduled Ancient Buildings. withstand the load of the new
One of the earliest surviving parts of lead roof. Other damaged
castle is the Canons’ Cloister, built around 1350 as lodgings for elements of the roof structure
the canons and priests serving the order. The buildings still were strengthened using
house the canons and lay clerks of the Order, making the traditional carpentry
Cloister the earliest surviving collegiate range in Britain. techniques, and carefully
Refurbishment work found important evidence of the floor plan detailed stainless-steel
and structure of the 1352 and later buildings and this, together members. Despite numerous
with the urgent need for repair of the historic fabric, made the interventions, we took nothing
project one of national significance. away from the original
3
The quadrangle of timber-framed buildings is tightly medieval frame.
positioned between the chapel and the castle wall. Its In other places a careful
construction is unusual, having two storeys with a sloping lead study of the building and its
covered roof. Each bay contained a small room and covered archives gave clues about its
walkway at ground floor level, a large first-floor room with gently original appearance, and
sloping ceiling and large windows and in some cases a later allowed us to address earlier
mezzanine floor inserted at the back of the room. A ground floor interventions. At some point in
covered walkway opened onto the cloister garth, with trefoiled the building’s history, for
tracery spandrels between the principal posts. example, the rafters had been
Incremental changes throughout the centuries have allowed cut back from the edge of the
the original timber frame substantially to survive behind a roof. This had damaged its
19th-century restoration, while much of the internal medieval original profile, which led our
structure and original floorboards also survive beneath Georgian 1960s predecessors to
and Victorian panels and floors. Conservators were therefore conclude that a box gutter
faced with the challenge of conserving both the original fabric, was the most appropriate
and later additions in order to preserve the buildings’ authenticity. method of water management.
5
The project was the first major refurbishment of the cloister This in turn was causing
since the 1960s, when copper sheeting was used to replace the harmful water ingress to the
original lead roofs. This had begun to leak and the statutory walls of the cloister. We were
authorities approved our proposal to reinstate a traditional reluctant to retain the gutter,
sand-cast lead roof, and repair a wind-damaged series of clay tiled not only because it had proved
and slated roofs elsewhere. We also used the opportunity to ineffective, but also because
improve insulation, ventilation and fire protection, as well as to reinstating a lead roof would
ensure safer access for maintenance. Roof lights were overhauled have added to the gutter’s
or replaced, and a new lightning protection system was installed. height. However, finding stubs
Opening up the roofs revealed fascinating new knowledge of projecting tenons on some
about the buildings and the wider architectural history of rafters supported our
Windsor Castle. For instance, we noticed an unusual yet regular alternative theory that the
pattern of gaps at the end of 15 rafters, which gave them a Cloister once had a cornice,
tuning fork-like appearance. Project archaeologist John Crook, which we reinstated in oak
recalled a medieval reference to “the 15 images”, leading us to together with a more effective 6
conclude that the gaps were in fact sockets for a series of lost fascia-fixed cast iron gutter.

28 DECEMBER 2013 / jANUARY 2014


1 West front,
St George’s Chapel
2 Roof of the
Canons’ Cloister
3 High level scaffolding
was needed
Cantilevered timber supports
were installed to support the
new gutter, and to recreate
the appearance of the original
2 projecting rafters.
Around the cloister a
cementitious 1960s render
had cracked, giving us
concern about water damage
to the 14th-century timber
frame beneath. The render
was removed and replaced
with a more appropriate lime
render once the frame had
been surveyed and repaired
where necessary. Perimeter
repointing of the brick noggin
panels in a soft lime mortar
was undertaken, and three or
four 20th-century panels
4 were replaced following the
basket weave of adjacent
counterparts. The remarkable
range and chronology of
doors, leaded and
plain-glazed oriel windows,
casements and sash windows
were thoroughly overhauled,
repaired and decorated.
Within the cloister garths, the
lower arcade walls were
cleaned and conserved where
necessary, and modern
cement pavoirs were replaced
using Purbeck Downsvein.
Other paving was cleaned and
repointed, and gratings were
overhauled and redecorated.
The project also included
extensive conservation and
refurbishment work to the
www.stgeorges-windsor.org/
canonscloister
Related competencies include T012
7
Images © Martin Ashley Architects DECEMBER 2013 / jANUARY 2014
RI CS Bu ild in g
conservation JOURNAL
4 Refurbished
cloister garth
5 Refurbished roof
6 Medieval wall paintings
7 Refurbished
cloister garth
interiors of the Canons’
Cloister. Decayed ceiling joists
were repaired, and modern
ceilings were replaced using
riven chestnut laths and lime
plaster. A series of medieval
wall paintings was carefully
monitored to protect them
from the load and vibrations
of lead ‘bossing’ works above.
Work also included the
internal refurbishment of three
lodgings within the cloister.
New modern kitchens,
bathrooms and utility rooms
were installed, and all
mechanical and electrical
services systems were
completely renewed.
The conservation
programme was supported
financially by the Bray
Fellowship, a philanthropic
body established to support
the College of St George’s.
At the end of the works a
wall-mounted bronze sundial
was mounted on a newly
rendered chimney in the
cloister garth. It features the
hours of service picked out in
gilded highlights, and a hemp
bray gnomen. C
Martin Ashley is Principal at
Martin Ashley Architects and
Surveyor of the Fabric to the
College of St George, Windsor
enquiries@ma-arch.co.uk
www.ma-arch.co.uk
29
RICS B u il d in g d o u bl e gla zi n g
conservation JOURNAL
Seeing is
believing
A pilot project in Edinburgh could
clear the way for wider use of
double-glazed window units in listed
O
buildings, says Nicholas Heath
ne of the fundamental problems with
double glazing in historic buildings
is its association with outdated,
cumbersome plastic-framed eyesores.
In reality, however, this is no longer the
case. Double glazing has been
installed successfully in numerous
high-profile historic buildings across
the UK, in many cases leaving the
casual or even informed observer unable to tell the difference
between it and its single-glazed predecessor as one such project
in Scotland illustrates.
The pilot project was developed and led by Changeworks, a
leading Scottish sustainable development organisation, in
partnership with Lister Housing Co-operative, City of Edinburgh
Council, Historic Scotland and Edinburgh World Heritage.
Following extensive research and negotiations, bespoke double
glazing was installed in both category ‘A’ and ‘B’ listed Georgian
buildings in Edinburgh’s Old and New Towns, both Conservation
Areas and a UNESCO World Heritage Site. As well as a permanent
example of pioneering best practice this project led to a
comprehensive research report1 and two technical papers published
by Historic Scotland2, and a change in local planning policy to permit
double glazing in listed buildings across Scotland’s capital city.
Striking a balance
Around 75% of buildings in Edinburgh’s World Heritage Site are
listed, and the majority are of traditional pre-1919 construction:
solid masonry walls and timber-framed sash windows with single
glazing predominate. From an energy efficiency perspective
these buildings are ‘hard to treat’. This applies not only to the
technical challenges of upgrading older buildings, but also the
added challenges in meeting conservation principles and
identifying affordable upgrade options. Consequently, many of
these buildings are largely unimproved, often leading to relatively
high energy consumption, fuel costs and CO2 emissions, and
correspondingly poor energy ratings.
Heat loss through windows occurs in two ways: ventilation and
fabric heat loss. The former may be addressed by good maintenance
and suitable draught-proofing; however, be wary of those who
insist that draught-proofing is all you need to do to make a
single-glazed window thermally efficient. The U-value – a measure
30 DECEMBER 2013 / jANUARY 2014
of the rate of heat transfer through a material (the higher number,
the worse the insulation properties) – of single glazing is around
5.53, in comparison with new double glazing (which may commonly
achieve 1.6) or a Scottish sandstone wall (likely to have a U-value
somewhere around 1.4). Single glazing is undeniably inefficient.
Thick curtains, insulated blinds and internal timber shutters, are
all non-invasive measures favoured by conservationists. But while
these certainly contribute to keeping in heat (see trials carried out
by Historic Scotland for relative performances4), all are temporary
measures, best suited to night-time and requiring daily occupant
interaction. The more permanent – and more thermally effective
options – are secondary or double glazing. Secondary glazing is
traditionally viewed as being more discreet and enabling the
retention of original fabric. However, it can be highly visible and
interferes with original building elements such as window
surrounds and timber shutters. It also requires double the effort
every time the occupant wishes to open or close a window. All of
these options have their place but equally have their drawbacks,
and there are situations in which double glazing may be considered.
New systems
Apart from the loss of fabric, the main issue with double glazing is
one of appearance: modern glass is flatter and has different
reflective qualities from older hand-blown glass, and the thicker
double-glazed units require heavier, less elegant dividing bars
than single glazing.
However, in recent years, new systems have been developed
specifically for the requirements of historic buildings. The key to
these systems is their profile; they are much slimmer than
conventional double-glazed units, having a spacer bar of
3mm-4mm rather than 12mm-18mm. Using more thermally
resistant inert gases such as krypton or xenon , rather than the
more conventional argon, allows them to achieve similar levels of
thermal performance in a slimmer unit.
This slim profile allows them to be retrofitted into existing
sashes (retaining original fabric), or made into new sashes
but using the original slender astragal dimensions. Such
specifications effectively remove the aesthetic issues associated
with the heavier sash dimensions. In terms of glazing, however,
modern glass undeniably looks different from old glass, which
may either be accepted or mitigated to some degree by using
crown-effect outer panes in the new units. Different schools of
 +info

1 D ouble glazing in listed

buildings – project report
Changeworks, 2010
http://bit.ly/XXEhXi
2 Technical Papers 9 and 20:
http://bit.ly/184zzLo0
http://bit.ly/17HITYQ
3 Energy Heritage
Changeworks, 2008
http://bit.ly/15TQ8x8
2 4 Technical Paper 1: Thermal
performance of traditional
windows Historic Scotland,
1 This entire ‘B’ listed revised 2010
Georgian corner http://bit.ly/1g8ZwBo
tenement is now 5 Double glazing in listed
double glazed buildings – project report
2 Former office of Changeworks, 2010
Edinburgh World http://bit.ly/XXEhXi
Heritage; the top 6 Technical Paper 20:
left window is Slim-profile double glazing
double glazed in listed buildings:
3 Heat loss from Re-measuring the thermal
single-glazed window performance (2013)
1 3 – U-value 5.5 http://17HITYQ

thought prefer different approaches in this respect. In many
cases it is not an issue, because original glass is now relatively
rare, and replacing modern single glazing with modern double
glazing should present no obstacle. Where historic glass
survives, making the case for its replacement can be challenging.
City of Edinburgh Council had long been under pressure to
relax its blanket prohibition of double glazing in listed buildings.
In 2009 it commissioned Changeworks to develop and deliver a
research and demonstration project, enabling all aspects of
slim-profile double glazing systems to be scrutinised through
pilot installations in historic buildings.
Following detailed research and negotiations, various listed
properties were retrofitted with bespoke double glazing systems,
each a different variant to enable comparison. A category ‘B’
listed Georgian (1820s) corner tenement building comprising
nine flats was entirely retrofitted, with the full support and
involvement of its owner Lister Housing Co-operative and
tenants. In addition, the sashes in one window in Edinburgh World
Heritage’s category ‘A’ listed offices were replaced.
Detailed technical analysis and specifications are provided in
the project report5. However, the trials covered a number of
variables including:
bb pane-only versus whole sash replacement
bb standard versus crown-effect outer panes
bb spacer bar colour and thickness
bb contents of cavities
bb product and manufacturer
bb locality of supply.
The impact of the installations was assessed on thermal
performance, aesthetics, cost, ease of installation, embodied
energy, longevity and occupant feedback.
Thermal performance was tested by Glasgow Caledonian
University with support from Historic Scotland. A range of
U-values was found from an exceptional 1.0 (for the vacuum unit)
to a more modest 2.8 (for an air-filled unit), with most achieving
somewhere near 2.0; in all cases a significant improvement on
the single glazing.
In terms of aesthetics, perhaps the most telling aspect of the
project is that a combined inspection team of expert staff from
the council, Historic Scotland and Edinburgh World Heritage was
unable to identify the building in question. Once identified, the
nuances of each system were assessed, in many cases with
individuals preferring different systems. Overall, however, all
parties were sufficiently satisfied to enable a citywide policy change
which received substantial support during its consultation stage.
Costs varied considerably, affected by variables such as
technical specifications and window detailing. In several cases,
costs were comparable to or cheaper than some types of
secondary glazing available for historic buildings, although this
was not always the case.
A detailed embodied energy analysis was carried out by
Heriot-Watt University, again supported by Historic Scotland.
This found that, broadly, with sufficient care in the specification
process the embodied energy in most such units could repay
itself may times during their life.
Conclusions
Double glazing is not universally applicable. But it is one of a suite
of options available to upgrade the very poor thermal performance
of single-glazed windows, and in the right circumstances it can
prove the best solution. Indeed, some conservation officers now
prefer it to certain types of secondary glazing.
There is only one question remaining: how long will
double-glazed units last? The only meaningful way of finding
out is to monitor such systems, and that is what is being done in
Edinburgh. In 2012, two years after installation, Changeworks
arranged for the units to be re-tested, again with support from
Historic Scotland and carried out by Glasgow Caledonian
University. The results were recently published in Historic
Scotland’s Technical Paper 206 and found that the majority of
systems were performing to a similar level as initially. With further
testing in coming years, the realistic lifespan of such systems will
be identified. C
Nicholas Heath is Director of NDM Heath Ltd: Sustainable Energy
Services, and Associate Consultant with Changeworks
enquiries@ndmheath.co.uk / www.ndmheath.co.uk
Further +info Related competencies
include T021, T051 C

Images © Lister Housing Co-operative (1); City of Edinburgh Council (2); Nicholas Heath (3) DECEMBER 2013 / jANUARY 2014 31
RICS B u il d in g e n v i r o n m e n tal
conservation JOURNAL s u sta i n abili t y
Environmental sustainability is becoming an important element in evaluating
repair strategies, explain Alan Forster, Kate Carter and Brit Kayan
Greening maintenance
R
etention of traditional
masonry buildings is
important not only
from a cultural
perspective, but also
from an economic
standpoint, with 50%
of national wealth across Europe being
contained within the existing built
environment. A lack of regular
maintenance significantly devalues these
assets due to premature deterioration.
But despite its importance, maintenance
appears to be poorly regarded by the
public and construction industry alike.
Evaluating masonry repairs is almost
always set within the parameters of
budgetary constraints. But maintenance of
historic buildings must also be implemented
within a framework based on ethics and
principles, including least intervention;
like-for-like material replacement;
distinguishability; integrity and reversibility.
Success is evaluated against these principles.
However, a third emerging factor in the
process is environmental sustainability.
To evaluate the long-term maintenance
requirements of historic buildings in
relation to the tripartite approach
proposed for ‘green’ maintenance (see
Figure 1), it is necessary to understand the
cumulative effect of routine operations in
cost, philosophy, and environmental
impact. The proposed evaluation
framework has the potential to allow
selection of the most sustainable solution.
Figure 1
Maintenance parameters
Environment
Low
Environmental
Impact
Philosophy Cost
Society Economy
Green maintenance
32 DECEMBER 2013 / jANUARY 2014
Carbon and energy use
Existing buildings have an important role
in reducing carbon emissions and energy
consumption, to meet global targets for
2050. Maintenance interventions clearly
expend energy, with some leading to
higher CO2 expenditure than others,
e.g. the significance of transport.
Sandstone from China had more than six
times the embodied carbon than the
equivalent locally sourced material. This
reinforces the influence of regional
materials procurement on the total carbon
associated with the construction process.
The three most common types of
repairs for natural stone masonry are
replacement stone, plastic repair, and
pinning and consolidation. Replacement
stone is considered very durable, with
a life expectancy of 100 years. Its
defensibility is generally good, enabling
the continuity of aesthetic integrity. The
energy used in this process is potentially
considerable as a result of quarry
extraction, processing and transportation.
Plastic repairs (denoting plasticity not
the addition of polymers) are a surface
repair to deteriorated masonry faces, with
a life expectancy of about 30 years. These
repairs are highly defensible, because they
enable the retention of the maximum
amount of existing natural stone. Equally
defensible is consolidation and pinning, a
stabilisation technique in which nylon or
stainless-steel dowels are inserted into
holes drilled into delaminating layers or
detached sections of masonry, and fixed
with modified lime grouts. These repairs
do not use a great deal of energy
compared to the former interventions, but
their life expectancy may be low.
Concept and methodology
There is clearly a relationship between
the number, type and longevity of
maintenance, and the embodied energy
and CO2 expended in repairs. A durable
repair requiring fewer repeat
interventions may incur less energy over
the lifespan of the building than a less
durable alternative. Although replacing
natural stone is a significantly more
durable than plastic repair, the energy
associated is a great deal higher.
The time between interventions is
influenced by many variables, including
material durability; degree of exposure;
building detailing; quality of repair and
specification. Figure 2 illustrates the
implications of undertaking maintenance
interventions on the service condition
of masonry over time. The downward
sloping lines signify the steady decline
in condition over the life of the repairs.
Each maintenance intervention brings
the area of masonry back to optimal
service condition. It then deteriorates at
a rate that depends on the repair type.
Intervention is assumed to occur when
the minimum acceptable condition is
reached. A steep gradient denotes a
repair with short life expectancy – such
as pinning and consolidation, which can
extend the service condition by 20
years. A shallow gradient equates to a
durable long-lasting intervention, such
as masonry replacement.
If interventions are considered in
terms of carbon emissions, it becomes
possible to model the whole life cycle
of a building in terms of the carbon
associated with maintaining it over its life
span. Figure 2 overlays the carbon
emissions for each maintenance
intervention on the service condition
graph. The model distinguishes between
‘brown’ and ‘green’ maintenance, i.e.
interventions of high and low carbon
impact. The cumulative effect of ‘brown’
maintenance increases the total carbon
expended far more quickly than ‘green’.
In principle, the more frequent the
maintenance intervention the higher the
embodied CO2, but various mechanisms
may exist to reduce the total CO2
expended, such as locally sourced
materials, using regional companies
to undertake the work and selecting
alternative repair solutions. A cradle to
site approach is required to fully account
for CO2 associated with all aspects
of the repair to fully appreciate its
environmental impact. On the face of it
an intervention with low carbon
emissions has less environmental impact.
However, the complexity of lifespan
and combinations of repair types
suggests a whole life cycle approach
 RI CS Bu ild in g
conservation JOURNAL

Figure 2 Good-quality, durable materials and well

Relationship between longevity of repair and total carbon expended executed craft-based techniques offer
defensible interventions.

Conclusion
The significant reductions in CO2
and energy that can be achieved by
‘green maintenance’ could be of value
to decision-makers. This framework
facilitates a deeper analysis of the tension
between philosophy of repair, set against
carbon emissions and cost, making initially
difficult decisions easier to defend. C

Alan Forster is a lecturer in building

is necessary in determining ‘brown’
from ‘green’ maintenance.
If we evaluate the efficacy of repairs
in terms of CO2 expenditure, then
the type of repair selected could be
tailored to suit environmental aspects
rather than longevity alone. This
practical approach may be welcomed
as society moves toward a low carbon
economy, and ‘green’ procurement
selects and prioritises materials with
conservation, and Brit Kayan a former
PhD student at Heriot-Watt University.
Kate Carter is senior lecturer in technology
and environment at University of Edinburgh.
a.m.forster@hw.ac.uk
low embodied energy. Additionally,
as carbon trading becomes more
prevalent, this method of evaluation can
be converted into a financial cost.
Philosophical aspects of maintenance Further +info
are essentially subjective, but are an
integral component of achieving ‘good
conservation’. Retention of existing
masonry fabric best satisfies ethical
tenets, but it is inevitable that intervention
Related competencies
include T053, M009 C
will be required at some stage.

‘ The biggest benefit of subscribing

to BCIS Rebuild Online, for us, is
that it provides access to a national
database of up-to-date cost
models to benchmark against,
this in turn helps us to mitigate
the risk of liability from costly NEW PLATFORM

’
errors in the insurance
claims process. • Improved navigation
• Enhanced options for viewing
and downloading information
Robert Sharpe • Better use of graphics, now
Managing Director information is easily understood

BCIS Rebuild Online - used by valuers, loss adjusters and insurance professionals.
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visit rics.org/robert or phone +44 (0)24 7686 8555

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To ad ve rtise con t a c t l u c i e I n n s +4 4( 0 ) 20 78 71 2 9 0 6 or lu c ie@su nday pu blishing. c o m

DECEMBER 2013 / jANUARY 2014 33
RICS B u il d in g h e r i tag e age n da
conservation JOURNAL
+info

UPDATE Heritage Agenda is compiled by

Henry Russell FRICS, tutor in
Building Conservation at the
College of Estate Management
and chair of The Heritage Alliance’s
Spatial Planning Advocacy Group
h.j.g.russell@cem.ac.uk

Simpler consent regimes outlined

The Enterprise and Regulatory Reform
Act 2013 introduces local and national
class consents, heritage partnerships
agreements and certificates of lawful
use into the planning system by way of
changes to the Planning (Listed Buildings
and Conservation Areas) Act 1990. The
Act put into law Adrian Penfold’s proposals
for simplifying the consents regimes.
The class consents system will give
listed building consent for changes to the
groups or classes defined in the individual
consent. Local authorities will have the
power to approve local consent, and the
Secretary of State will have the power
over national consents. Heritage
partnership agreements will have statutory
force. The process has already been used
where there are large historic assets,
either singly or in groups, but without the
statutory power to grant listed building
consent. Certificates of lawful use can be
applied for before any changes are made
to a designated heritage asset.
The Department for Culture Media and
Sport and the Department for
Communities and Local Government
(DCLG) have set up practitioner ‘sounding
board’ group, to comment on the
proposed rules and orders that will put Grant scheme
these provisions into effect. The DCLG
aims to consult on the detail of this
extended
secondary legislation in December and The UK government has
bring them into effect April 2014. announced extensions to the
n Further guidance Listed Places of Worship Grant
http://bit.ly/195DQS3 Scheme, which took effect from
1 October 2013. The latest
Spending Review already

Planning guidance goes online confirmed that the £42m per

annum for the scheme will be
The Department for Communities and Local Government has published its ‘beta’ continued to 2015-16.
version of the National Planning Policy Guidance (NPPG), which is a consultation Under the extended format,
in all but name. The consultation has now closed. works to pipe organs, turret
The NPPG has been published in web format only, which has attracted some clocks, bells and bell ropes will
criticism because it makes it less easy to use. The reason for publication online is to be eligible for claims under the
enable hot links to other relevant guidance, and to make it easy to update the guidance. scheme, and – welcome news
The NPPG is much more detailed than expected, and in many areas of planning for practitioners – so will
policy it will contain all the supplementary guidance. The Historic Environment professional services directly
Forum, which is working with English Heritage (EH) on drafting the historic related to eligible building work,
environment guidance, is minded to adopt existing EH documents and develop such as surveyors and
new sections as necessary, rather than produce an overall third level document architects fees.
that might only serve to confuse users. n Further details
n http://planningguidance.planningportal.gov.uk www.lpwscheme.org.uk

London schemes called in

Proposals to redevelop the Shell secretary Hazel Blears in 2008. because it, “concerns matters of
Centre on London’s South Bank and English Heritage has also objected substantial regional and national
the Smithfield meat market face to proposed alterations to the Shell controversy”. The letter said Pickles
public inquiries. Communities Centre, with concerns that its visual would be looking at how the
Secretary Eric Pickles has called in impact might cause Parliament scheme conformed with policies
the schemes, both of which have Square to be stripped of its World in the National Planning Policy
been highly controversial. Heritage Site status. Framework on design, and
Previous plans for redevelopment In a letter to the City of London conserving and enhancing the
Further +info
of Smithfield were Related
called in and competencies
Corporation,
include M003, T083
rejected by then communities
C
Pickles said he had
decided to call in the application
historic environment.
n http://bit.ly/1cglz4l

34 DECEMBER 2013 / jANUARY 2014

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Are you running
out of time?
All practising RICS members must complete and log
at least 20 hours of CPD online by 31 December 2013.

If you haven’t already done so, don’t leave it until the

last minute – go online now to add your CPD activities
at www.rics.org/cpd.

CPD is an essential part of being a professional. This commitment to lifelong learning is vital
to maintain professional competence and protect the reputation of the profession with clients,
regulators, governments and our many other stakeholders. This is why RICS established a
policy in 2013 requiring members to record at least 20 hours of CPD each calendar year,
including at least 10 hours of formal, or structured, learning.

To access the new user-friendly, online CPD management system, simply go to rics.org/cpd,
where there is also a range of guidance and supporting material to help you.

If you need any help understanding the CPD policy or using the online tool,
call RICS Regulation on +44 (0)207 695 1670 or email regulation@rics.org.

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