Following the publication of Loss Prevention Alert 33, which concerns the matters to which specialists should have regard when working on another’s land, a number of AGS members have made specific points and observations of which we ought to make the wider membership aware.
An important point is access to the site. It may well be that the licence itself designates the only route by which the specialist is to have access to and egress from the site in which case, should the specialist enter or leave the site by any other route, he risks committing a trespass and being made a defendant to proceedings. On large and complicated sites, where access by anything other than the agreed route can cause damage to the site (for example to crops) a plan might need to be appended to the licence to make it clear to the specialist where he should enter and leave. It may also be the case that, in order to enter a site, permission has to be sought from some third party because the specialist’s staff or equipment will have to travel over that third party’s land. Generally speaking, this is not the specialist’s problem and he should leave it to his client or his client’s advisors to ensure that the specialist has all the relevant permissions he needs to be able to enter, work on, leave the site as he envisages he will need to. In certain cases therefore, when access to sites might present a difficulty, it is recommended that a clause is included in the specialist’s appointment as follows:
The Client warrants and undertakes that all relevant permissions for the consultant/contractor to enter, leave and work on the site have been obtained and are not subject to any restrictions which might impede, in any respect, the consultant’s/contractor’s ability to undertake the Services.
The point has been made that there may be occasions where the consultant’s work creates unavoidable damage to the site. Typically, site owners will expect to be indemnified against such damage – especially where they have no particular interest or motivation in relation to the transaction the client is envisaging. But in this situation it ought to be made clear that unavoidable damage will be the responsibility of the client. The client will though expect the consultant/contractor to be responsible for unavoidable damage which occurs through his negligence or failure to take care.
Steven Francis, Eversheds