SGD chairman Philippa O’Brien
SGD chairman Philippa O’Brien discusses who is responsible for the plants on a garden design project
Lately there’s been a lot of hot air wafting about regarding who should buy the plants on a project. The landscapers say that garden designers should not get involved, but hand over the planting to them, root and branch. Some have even been quoted as saying designers should stick to design, and if they can’t make money without taking a profit from the plants, they should give up.
On the other side, designers say landscapers are not knowledgeable enough to source the plants that they require. There are arguments for and against on both sides. In actuality, the law on this is straightforward: whoever buys the plants is responsible and liable for failures, regardless of who plants them. The Supply of Goods & Services Act 1982 is clear in this respect. It also states that any goods must carry a period of guarantee that is reasonable. Depending on the planting season, this could be six or seven months.
Which method is best?
There are several ways that plants can be provided on a project. Business model 1 is ‘Design and Plant’, where in effect the designer is acting as a sub-contractor for the planting. Many designers enjoy sourcing plants, and gain plant knowledge from visiting nurseries and picking out plants. They will normally add a percentage to all plants that they buy when quoting to the client. The designer sources the plants, arranges delivery and then plants them. There is nothing much wrong with this business model, and a landscaper working on small projects will probably not want to get involved with plants. The client is happy to see the designer getting involved, and the designer, having supplied and planted, is responsible for putting right any problems. All seems clear.
But how transparent is this? Does the designer tell the client they will be paying retail prices, or wholesale plus a fixed percentage, or simply wholesale plus a sourcing fee? While there are as many ways of doing this as there are designers, one thing that is often overlooked is that when a designer moves from service provider to goods supplier, they need a separate contract with the client.
Business model 2 is probably the one that causes the most problems. The designer sources the plants, charges the clients for them and has them delivered to site. The designer may or may not set them out, but then leaves the site. The landscaper does the planting at whatever rate they normally charge. Who is then responsible if the plants die? The landscaper has not taken a profit on the plants and has no contingency for replacements. The designer says that they have supplied good-quality plants, and deaths must be due to poor planting. If this gets as far as the lawyers, the liability will be with whoever bought the plants.
Business model 3 tends to be a tricky one too. This is where the designer specifies and sources the plants, then gets the client to pay for them direct. While some wholesalers do not like this approach, others are quite happy to accept a plant order direct from a client.
Business model 4 is where the designer specifies the plants, and specifies suppliers. The landscaper orders the plants and is responsible for any plant deaths. The important factor here is that the designer values their services correctly. There is a lot of work in specifying and sourcing plants, and the designer has to use knowledge built up over time to put together a reasonable list of plants that can be obtained without too much difficulty. They need to charge properly for applying this knowledge.
Business model 5 is that the designer passes the landscaper the plans and specification, and then leaves it all to them.
Other than model 2, which is clearly unfair and not legal, it is up to you which model you take. There are a lot of design-and-build landscapers working in the industry; equally there are many design-and-plant designers. For complete transparency and in the client’s best interest, any contracting needs to be clearly separated from design, and the person who buys the plants legally bears the responsibility for them.
Of course, no matter which system you ascribe to, none of this works when you have a hopeless client who demands the planting is completed in July, refuses to put in any irrigation, goes on holiday and then rings you, furious, about the Rice Krispies in the garden two months later!
Responses to this article, first published as ‘Best Buy?’ Talking Point in GDJ January 2017 issue:
Philippa O’Brien’s article ‘Best Buy?’ in Issue 174 of GDJ, January 2017, raised an important issue. Some clients may like to see their garden designer dibbling about in the borders and ‘getting involved’ in plants, but is this really what a garden designer does? And does it represent ‘best buy’ for the client? You wouldn’t expect an architect to sell bricks, or wallpaper; why would a garden designer sell plants?
In addition to the need for separate contracts to supply goods and services, there is insurance to consider: the type of insurance required for a design practice – Professional Indemnity and general office/business insurance – may not cover the liabilities involved in supplying goods and carrying out planting operations.
There is also a serious question about value for money and protecting the client’s best interest. Many landscape contractors can supply plants more cost effectively than a designer acting alone because they have the manpower, equipment, storage and handling facilities to do this.
I don’t recognise the dichotomy proposed at the beginning of O’Brien’s article. I have not personally come across landscape contractors who insist that planting should be handed over to them root and branch. What they have every right to expect is a set of clear, detailed plans and specifications they can use to source the plants, cost and carry out the job.
Where the design calls for unusual specimens, the designer may need to undertake research, make nursery visits, and select and reserve individual plants just as they would if specifying garden sculpture. Time spent in this way is charged to the client.
To anyone starting out in this business and unsure of their responsibilities, I recommend a thorough reading of the JCLI contract documents (available from the SGD) and their systematic use. The contract is clear in explaining the role and duties of all parties – designer, contractor and client. It explains procedures for dealing with unforeseen problems, including plant failures.
Most clients start with rather vague notions of what a professional garden designer does. Sitting down with client and contractor in a pre-contract meeting and talking through the responsibilities of each party is a pivotal moment in each project - often when the client really starts to appreciate the role of the designer as a professional who can manage the process and avert problems. He or she is not just a posh, expensive and possibly under-insured gardener.
Roger Webster MSGD, Devon