Emery Planning (EP), the trading name for Emery Planning Partnership Ltd conducts business on the basis of these terms which the client will be deemed to have accepted if instructions are subsequently given to EP. Non-exercise of legal rights by EP is not to be taken as a waiver of such rights. EP is bound by the Code of Practice of the Royal Town Planning Institute.
Attached is a proforma which gives the name and status of the person who will be initially responsible for the conduct of the instructions. Where appropriate the name of the supervising director or associate director is also given. EP reserves the right to involve other personnel as we, from time to time, consider appropriate to properly undertake the instructions. EP will normally notify the client if there is any change to the person principally responsible for undertaking the instruction.
Basis of contract
1. These terms of appointment (Terms) together with our estimate, the signed proforma and our confirmation of acceptance constitute the contract between EP and the client (the Contract).
a. The return of the signed proforma constitutes an offer by the client to engage EP’s services under these Terms. The offer will only be deemed to be accepted when EP issues a written confirmation of acceptance to the client, at which point the contract shall come into existence subject to these Terms.
b. The Contract constitutes the entire agreement between the parties. The client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of EP which is not set out in the Contract.
c. Any samples, drawings, descriptive matter or advertising issued by EP, and any descriptions or illustrations contained in EP’s marketing material, are issued or published for the sole purpose of giving an approximate idea of the services described in them. They shall not form part of the Contract or have any contractual
d. These Terms apply to the Contract to the exclusion of any other terms that the client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
e. Any quotation or estimate given by EP shall not constitute an offer.
2. EP shall supply planning services to the client, as more particularly detailed in the estimate (the Services) and the other contractual documents referred to in these Terms. These services will be carried out with reasonable skill and care.
3. EP shall use reasonable endeavours to meet any performance dates specified, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
4. EP shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and EP shall notify the client in any such event.
5. EP warrants to the client that the Services will be provided using reasonable care and skill but cannot guarantee a successful outcome. Payment of fees is not dependent on outcome.
Charges and Payment
6. Work is charged by EP on a time basis calculated in units of 6 minutes duration or part and based on the hourly charging rate of the fee earner concerned current at the time of doing the work. This hourly rate consists of basic rate which may be increased by up to 50% where the work is complex, requires particular expertise, has to be executed very quickly, has to be carried out in an inconvenient location or is of particular importance to the client; EP will obtain the client’s agreement prior to the application of any uplift. Work undertaken on the basis of oral or written instructions that predate the signing of the proforma will be charged for on our standard time basis. Signing of the proforma will be taken as having accepted such charges – including expenses.
7. Our fees are determined principally by reference to the time actually spent on the project, unless otherwise agreed. This will include for example attendance at meetings (including travel time), reading and working on papers and correspondence – including emails, research, preparation of reports/statements, making and receiving phone calls and time spent travelling in connection with the project.
8. The estimate is not a quote. Our time is charged on an hourly basis; if less work than expected is required then our fee will be less than the estimate. Conversely, if more work is required than expected the fee will be greater than the estimate. At our discretion the estimate may need to be exceeded due to issues encountered or complications arising with the project after the project has commenced. EP shall be entitled to make additional charges for work carried out or additional costs incurred as a result of (i) any variation in the services by the client;(ii) delay by the client;(iii) any delay by third parties;(iv)other requests beyond the reasonable control of EP.
9. We will endeavour to keep within the estimate and advise you in advance if the figure is likely to be exceeded by more than 25%. However, the pressure of getting the work done means that estimates are sometimes exceeded before the client can be advised. When a revised estimate is issued (by post or email) we will continue to work on the project and incur additional fees unless we are informed in writing to the contrary.
10. It is difficult to estimate how many hours of work will be necessary to complete a given matter. Any estimate of our fees is just that and should not be treated as a fixed fee. We set out in separate documents for applications and appeals, reasons why estimates can overrun. The appropriate document should be attached to these Terms but if it is not please advise and one will be forwarded.
11. The basic hourly rates currently being charged are set out on the proforma. We review our rates each year and are subject to change as we may determine from time to time. We will notify you by email if the rates you are being charged have been increased and the date from which the increases applied. All travelling time spent in connection with the project is charged at the full hourly rate, as is time spent on telephone calls and correspondence
12. Where a fee is given it is an estimate and is approximate only and in all cases is exclusive of VAT and expenses. Fee estimates are given on the assumption that the matter is not unusually urgent, complicated or time-consuming, that all relevant facts have been disclosed and that the client’s own time demands will not be excessive
13. Where a fixed price applies, the charge does not cover work which goes beyond that specified in the instructions. If there is a need for additional work the client will be notified and the additional work shall be charged on the normal basis. Similarly a charge will be applied if the instructions are withdrawn or amended prior to completion.
14. Expenses such as telephone, postage and fax are not generally separately charged for, however, postage over £5.00 and land registry searches will be included in disbursement charges. We charge for colour and black printing/copying of 10 or more sheets of paper and for Promap printing. EP reserves the right to make an additional charge for exceptional costs. All payments made or to be made on behalf of the client (“recoverable expenses”) including travel costs are charged for.
15. All charges are exclusive of VAT.
16. EP reserves the right to add a servicing charge of up to 10% of the amount charged by any third party instructed by EP (other than barristers) on behalf of a client where that person invoices EP.
17. All fees and charges submitted by sub-contracted specialists and by prior agreement with the client shall be the responsibility of, and payable by, the client. All fees and charges made by local authorities and the Planning Inspectorate shall be the responsibility of the client.
18. In any matter, EP may require the payment of money on account of costs yet to be incurred. The amount of the payment requested is an estimate only of the fee charge, expenses and VAT likely to be incurred for a period in the future. Bills are then delivered in the usual way and you agree that money held on account may be used to discharge these. As the matter proceeds the client may be requested to provide further funds on
account for future periods. EP reserves the right to cease work on the instruction if funds are not received on account as requested.
19. EP usually renders accounts for work at the end of each stage of work. Recoverable expenses are generally charged as they arise. EP will endeavour to ensure that all fees and recoverable expenses are included in the account at the relevant stage. However there may be exceptions when, for example, all timesheets relevant to the project have not been submitted before the account is raised. In such a situation EP reserves the right to add the uncharged for fees or expenses to the next account.
20. All accounts are to be regarded as interim accounts unless described otherwise. Work often has to be done following completion of the instruction, EP will try to minimise additional costs by including in the interim account on completion an allowance for such work but reserves the right to render further accounts if necessary. Where an award is made in respect of an appeal, EP will charge for making the application to the authority and/or court. The client will remain responsible for paying EP’s accounts, the payment of which shall not depend upon the outcome of such an application. Payment is due within 7 days in the case of an account for expenses only and within 14 days for all other accounts. EP reserves the right to cease work on the instruction if an account is not paid within 14 days of issue or after any agreed extension to that period.
21. EP normally requires outstanding accounts to be paid in full before a submission is made; EP reserves the right to withhold a submission until accounts are paid in full.
22. In any event, should any matter involve any hearing, (e.g. tribunal or Court), any outstanding fees must have been discharged at least 7 days prior to the hearing together with any sums required by EP to cover the cost of the hearing.
23. EP shall have the right to charge interest on any charges not paid by the due date, at the rate of 8% above the base lending rate of National Westminster Bank Plc. In addition, EP will charge for recovery of debts including the following: solicitor’s letter – £25.00; serving of Statutory Demand – £100; and other reasonable debt recovery costs.
24. If any account is overdue by 14 days or more EP has the right without notice to stop work for the client on that matter and on any other matter. This could result for example, in not completing the submission of an application, not submitting evidence or appearing at a public inquiry or hearing.
25. EP has a lien over any money or other property of the client in its possession, including any files and papers, for any unpaid account, or any billed work in progress or other sums due to EP.
26. EP may apply in or towards payment of its costs and expenses any amounts held by EP on behalf of the client relating to any matter for that client.
27. EP may use third parties to assist in collection and payment of accounts, including the use of factoring, and/or invoices discounting facilities. EPP has the right in these circumstances to divulge to the third party any information which may be required by the third party and/or any such facility including information which may otherwise have been regarded as confidential.
28. EP does not provide services relating to the scientific investigation of land, water or air quality. Where a site inspection or investigation of planning history or local knowledge reveals the possibility of pollution and pollution control being a material planning consideration, this will be reported to the client but the final judgement as to whether to commission an environmental audit will rest with the client.
29. We will archive your file for at least 10 years. After this time we have the authority to destroy it. EP reserves the right to charge for posting it to the client, if required, as an alternative to destruction,
30. The client shall:
a. at EP’s request (in the case of a corporate client or partnership) arrange for a director and/or shareholder (or individual partner, as the case may be) to provide a personal guarantee of the client’s liability for our fees and/or (for any other client) money on account of our fees in advance;
b. co-operate with EP in all matters relating to the Contract;
c. provide EP (or its employees, agents, consultants and subcontractors), with access to the client or the relevant premises, office accommodation and other facilities as reasonably required by the EP;
d. provide EP with such information and materials as may reasonably be required in order to fulfil the agreed services, and ensure that such information is accurate in all material respects;
e. obtain and maintain all necessary licences, permissions and consents which may be required.
31. In the event that the client fails to comply with its obligations set out above
a. EP shall have the right to suspend performance of any of its obligations under the Contract; and
b. shall not be liable for any costs or losses sustained or incurred by the client arising directly or indirectly from any failure or delay in performance by EPP which is as a result of any such client failure to comply with its obligations.
32. If, following the grant of an application, CIL is applicable; the client is responsible for managing the process and making the necessary submissions to ensure compliance with the CIL Regulations.
Limitation of Liability
YOUR ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
33. Nothing in these Terms shall limit or exclude EP’s liability for:
a. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
b. fraud or fraudulent misrepresentation; or
c. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
Subject to the above, EP shall under no circumstances whatever be liable to the client, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and EP’s total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount of the limit of our professional indemnity insurance in place from time to time.
Except as set out in these Terms, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract.
34. General Data Protection Regulation 2018
We are unable to proceed with any project until we have signed confirmation that you
- Read and agree to the instructions set out in our estimate letter
- Read and agree with out Terms off Appointment
To commence instruction please sign and return the proforma by post or email
35. Force majeure:
a. For the purposes of these Terms, Force Majeure Event means an event beyond the reasonable control of EP including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of EP or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors;
b. EP shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event;
c. If the Force Majeure Event prevents EP from providing any of the Services for more than 4 weeks, EP shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the client.
36. Rights of Third Parties – a person who is not a party to the Contract shall not have any rights under or in connection with it.
37. Confidentiality – a party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
38. No partnership – nothing in these Terms is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
39. Non Assignment:
a. EP may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
b. The client shall not, without the prior written consent of EP, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
a. If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
b. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
40. Variation – any variation to the Contract must be in writing and agreed by both parties.
41. Jurisdiction – this Contract shall be governed by and construed in accordance with English law and the parties irrevocably submit to the jurisdiction of the Courts of England and Wales.
42. It is the policy of EP to provide a service, which is satisfactory to the client. If a client is not receiving the service anticipated EP would wish to know about it. EP would wish to resolve any dissatisfaction promptly and informally. A client who has a problem with the service provided should firstly raise it with the person dealing with the matter. If this fails to resolve the problem then the client should contact the Directors of EP whose names are available from reception, preferably in writing and explaining what action the client would wish us to take.
43. We are subject to the Code of Conduct of the Royal Town Planning Institute,details of which can be found on the RTPI website http://www.rtpi.org.uk/membership/professional-standards. We have Professional Indemnity Insurance provided under the RTPI Scheme, details of which are available upon request.