The determination of pertinent contract document requirements for landscape projects in South Africa

Abstract

Landscape and related environmental works are discussed as an integral and essential aspect of most land development projects, whether they are building or civil works, environmental protection, rehabilitation or landscape beautification. Problematic contractual issues that regularly arise in landscape contracting from the use of standard forms of construction contracts for pre-main contract, in-main contract and post-main contract landscape work are identified and discussed. These forms of contracts have essentially been written for traditional building and engineering works and are shown to be inadequately addressing the unique contractual aspects relating to landscaping works. The study focuses on the issues to be addressed in a contract between an employer and a landscape contractor for work to be undertaken before the main construction contractor has been appointed and on landscape subcontract work undertaken during the construction under the main contract. It addresses the problems surrounding the contractual practical termination of the landscape subcontract, the defects liability period and interim landscape maintenance as well as landscape maintenance work after the landscape installation has reached final completion. The study points towards an appropriate form of contract for use in conjunction with the JBCC contract system to provide for the particular requirements of landscape contracting. It indicates the necessary compatibility between landscape subcontractual requirements and the JBCC Nominated/Selected Subcontract Agreement. This required compatibility warrants a revision of or an addendum to the JBCC document. The requirements for a landscape maintenance contract, for use after termination of the landscape installation (sub)contract, are shown to be sufficiently different from the installation contract to warrant changes or addenda to the standard construction contract form. From a review of literature on the landscape contractual environment in South Africa and a study of contracts commonly used in South Africa, pertinent landscape contractual issues are identified for the three phases in which landscape and related environmental works are performed, i.e. before the main construction contract, during the main construction contract and during the landscape maintenance period after completion of the main contract. These issues are formalised and tested for validity and relevance by means of a survey conducted amongst developers and owners of building and engineering works, contractors and professional consultants. The research is summarised, findings and conclusions for each of the three landscape works phases are presented and recommendations made to address the confirmed contractual problematic issues. The survey confirms the JBCC suite of contracts as the most widely used for landscaping contracts in South Africa and the recommendations therefore focus thereon. The study concludes with a proposal for an addendum to the JBCC’s Nominated/Selected Subcontract Agreement entitled “General and specific conditions of subcontract for landscape and related works” and recommendations for further study of related issues identified in the survey but which fall outside the focus of this study.