Council tree felling...

[Guest makapaka]

How about an independent tree panel who's decision about removal of a tree was binding.

Or specific conditions under which trees can and can't be removed.

Or a requirement to reach a certain % of using the engineering solutions.

 

There are myriad ways that the council could have either written in specifics or retained some measure of control.

 

And what impact do you think that would have had on the cost?

[Phili Buster 10]

http://www.bbc.com/news/uk-england-south-yorkshire-40962193

 

Sheffield City Council, (a.k.a.Sheffield Council tax payers), are facing paying Amey financial penalties if the remaining tree felling has not been satisfactorily completed by the end of this year. I wonder though are we being taken for a ride on this?

 

I started a thread a couple of weeks ago that tree felling was due to take place on Sandford Grove Rd between 11th - 15th Dec. Well no work took place. No demonstrators showed up, so that couldn't be the reason for the work not talking place & neither could the weather have been a factor as the same time Amey was supposed to be working on Sandford Grove Rd, Amey workers were turning up at 4:30am to fell trees on Abbeydale Park Rise.

 

This is the 3rd time on 2017, (June; Oct & now Dec), that Amey have failed to carry out scheduled work on Sandford Grove Rd & a few surrounding road.

 

I'm starting to wonder if Amey are deliberately delaying work, so as to ensure the financial penalties actually kick in.

 

Penalty clauses in contract law aren’t enforcable - so there won’t be any in the contract between the council and amey.

 

Next unsupported conspiracy?

 

This would seem to be a 'funny' contract with regard to penalty clauses. It seems that if Amey fail to complete the contract then SCC have to pay a penalty or have I misunderstood?

 

That does seem to be a bit back to front, surely the norm for a penalty clause (whether legally enforceable or not) would be for the one carrying out the contract to be subject to pay any penalty. Otherwise, what is the incentive to complete on time and fully.

[paula4sheff 10]

I'm not quite sure why we continue to argue/debate with the one or two people here who seem to think Amey do no wrong, for some reason.

 

It's as pointless as trying to convince someone who thinks the earth is flat that it isn't.

[Guest makapaka]

I'm not quite sure why we continue to argue/debate with the one or two people here who seem to think Amey do no wrong, for some reason.

 

It's as pointless as trying to convince someone who thinks the earth is flat that it isn't.

 

Don't bother then.

[paula4sheff 10]

Don't bother then.

 

That's the intention.

 

Don't forget to post Amey a Christmas card!

[Guest makapaka]

That's the intention.

 

Don't forget to post Amey a Christmas card!

 

Try and find a post by me which defends amey.

[Cyclone 10]

Penalty clauses in contract law aren’t enforcable - so there won’t be any in the contract between the council and amey.

 

Next unsupported conspiracy?

 

That's a massive over simplification

 

http://www.fieldfisher.com/publications/2016/02/important-changes-to-the-english-law-rule-on-penalty-clauses-what-does-it-mean-for-franchising

 

the Supreme Court noted that the Dunlop tests had taken on the status of a "quasi-statutory code", which was never the intention, and the Dunlop test has been applied too rigidly, particularly in cases where there is a clear commercial justification for including a penalty clause, or where there may be interests beyond the compensatory which justify the imposition on a party in breach of an additional financial burden.

 

---------- Post added 19-12-2017 at 17:00 ----------

 

And what impact do you think that would have had on the cost?

 

Are you trying to argue that the failure to negotiate a reasonable contract, leaving the council with it's pants down and the commercial sub contractor running the show was actually a cost saving measure?

Why include the engineering solutions at all if it was clear that for cost reasons they would never be used?

Or were the council perhaps hoping that Amey would use them out of the goodness of it's heart?

 

The contract isn't fit for purpose, whoever wrote and agreed it is negligent, lacking due diligence and incompetent and whoever signed it off as well.

[Guest makapaka]

That's a massive over simplification

 

http://www.fieldfisher.com/publications/2016/02/important-changes-to-the-english-law-rule-on-penalty-clauses-what-does-it-mean-for-franchising

 

We’ve been through this.

 

The case law you have quoted is from 2015. Regardless of the ramifications of that case law - why would that have any bearing on someone drafting a highways contract in (or around) 2012?

 

Why would they just draft a penalty clause into the contract - it wouldn’t even have benefitted amey - as it would likely be unenforceable?

[Cyclone 10]

The contract between Scc and amey won’t have penalty clauses in it.

 

It certainly should, if it doesn't then that's another demonstration of incompetence.

[Guest makapaka]

That's a massive over simplification

 

http://www.fieldfisher.com/publications/2016/02/important-changes-to-the-english-law-rule-on-penalty-clauses-what-does-it-mean-for-franchising

 

 

---------- Post added 19-12-2017 at 17:00 ----------

 

 

Are you trying to argue that the failure to negotiate a reasonable contract, leaving the council with it's pants down and the commercial sub contractor running the show was actually a cost saving measure?

Why include the engineering solutions at all if it was clear that for cost reasons they would never be used?

Or were the council perhaps hoping that Amey would use them out of the goodness of it's heart?

 

The contract isn't fit for purpose, whoever wrote and agreed it is negligent, lacking due diligence and incompetent and whoever signed it off as well.

 

No I’m not saying that.

 

I’m saying that when people talk about the contract that they would like to see in place, it usually includes all the risk sitting with the contractor. The cost of which would likely be prohibitive.

 

I’ve not seen the contract and neither have you - we also don’t know the procurement strategy or budget that sat behind it.

 

Im just highlighting this fact.

 

---------- Post added 19-12-2017 at 17:07 ----------

 

It certainly should, if it doesn't then that's another demonstration of incompetence.

 

Why?

 

A redress for loss via cost or liquidated damages would the most appropriate for the parties wouldn’t it?

[Cyclone 10]

The risk sitting with the contractor is entirely commensurate with all the profit sitting with the contractor.

They also have the option to not bid for the contract in the first place, but once they've signed it, pulling out should never leave the taxpayer out of pocket.

 

And a clause in the contract that details the consequences of missing targets is of course preferable to having to go to court, for both parties as there is no uncertainty and no additional cost of taking legal action.

 

We have seen part of the contract, it's not my fault if you've failed to look. It's been partly redacted, not entirely. The council have also made numerous statements about it, including the fact that they have entirely no control over the use of the engineering solutions regarding trees and that they cannot stop Amey cutting down any tree it wishes, no matter what the arborists say.

They have also stated that the council will suffer financial penalties if Amey misses a target, they've said it, you can't pretend it didn't happen.

 

We do know the budget, we know the duration of the contract, we actually know quite a lot of details. Although the 'we' appears to be lots of people, with the exception of yourself.

[Guest makapaka]

The risk sitting with the contractor is entirely commensurate with all the profit sitting with the contractor.

They also have the option to not bid for the contract in the first place, but once they've signed it, pulling out should never leave the taxpayer out of pocket.

 

And a clause in the contract that details the consequences of missing targets is of course preferable to having to go to court, for both parties as there is no uncertainty and no additional cost of taking legal action.

 

We have seen part of the contract, it's not my fault if you've failed to look. It's been partly redacted, not entirely. The council have also made numerous statements about it, including the fact that they have entirely no control over the use of the engineering solutions regarding trees and that they cannot stop Amey cutting down any tree it wishes, no matter what the arborists say.

They have also stated that the council will suffer financial penalties if Amey misses a target, they've said it, you can't pretend it didn't happen.

 

We do know the budget, we know the duration of the contract, we actually know quite a lot of details. Although the 'we' appears to be lots of people, with the exception of yourself.

 

Your post shows a lack of understanding. The fact that the contractor makes a profit does not mean they have to assume all risk. The amount of cost they may incur as a consquence of holding the risk is the important thing.

 

The "quite a lot of details" you claim to know does not extend to the clauses for late delivery, the original procurement strategy and the original budget, which is what I made reference to.

 

As for the statement made by the councillor, I would hazard a guess that he was talking about the Contractor's ability to recover costs/damages for delays outside of their control, not penalties.

 

This discussion actually started as a poster stated that they believed Amey were purposefully seeking to delay works to claim penalties from the council.

i.e. benefit from their own breach via a penalty clause in the contract. I find this highly unlikely.