Due diligence

[beamo]

The following link shows some of the reasons why archaeology should be given a greater role in due diligence. Interesting to note that in legal jargon, archaeology can be referred to as an 'esoteric' issue.

http://www.scotcourts.gov.uk/opinions/2013CSOH108.html


Beamo

[Dinosaur]

Interesting link :face-approve:

[drpeterwardle]

Interesting indeed but bad news for us. The consequence of this is that the developer can rely on the firm doing the land charge search rather than commissioning a desk top or similar.

Peter

[barkingdigger]

Looks like the problem was the level of skill with which the DBA was/wasn't conducted by the land charge searchers, so even if it means some of them learning to do these in-house, they'll still need archaeologists to advise them! Thus they'll either farm it out as subcontracts to existing units, or have to hire their own archaeologists for their staff. The important thing is that the importance of dealing with the archaeology wasn't questioned.

But missing the clue of the "Whitefriars Road" name? FUBAR!

Anyone know if the damages include post-ex, archiving, and publication costs?

[Unitof1]

hours of fun and it all seems to be based on the lawlessness of tort


Also its an evaluation where you have to have buildings demolished and then you still underestimate the number of bodies by half.

[SIZE=3]the developer claimed £351,453.21 diminution of capital value. They got this figure by deducting the current value of the Site (£50,000) from the purchase price (£385,000), and by adding the legal costs of purchase (£16,453.21). I presume that they bought the site at the top of the market and have subsequently demolished the buildings which were on the site. It doesn't say if the buildings were viable. Presumably the current value also included the fact that it has archaeology still left on it.

The judge also awarded Past business losses of £227,875.00 and the on-going loss at £51,511.00 per annum.
they also give the site costs as
[TABLE]
[TR]
[TD][SIZE=2]Legal costs
[/TD]
[TD]£186.10
[/TD]
[/TR]
[TR]
[TD]Architects' costs
[/TD]
[TD]£14,782.40
[/TD]
[/TR]
[TR]
[TD]Archaeological costs
[/TD]
[TD]£59,436.20
[/TD]
[/TR]
[TR]
[TD]Surveyor costs
[/TD]
[TD]£38,971.83
[/TD]
[/TR]
[TR]
[TD]Planning costs
[/TD]
[TD]£11,992.50
[/TD]
[/TR]
[TR]
[TD]Miscellaneous costs
[/TD]
[TD]£9,146.05
[/TD]
[/TR]
[TR]
[TD]Works costs
[/TD]
[TD]£14,386.40
[/TD]
[/TR]
[TR]
[TD]Total
[/TD]
[TD]£148,901.48
[/TD]
[/TR]
[/TABLE]

so all the damages come to £728229.69 and yet it seems that for £59,436.20 you can get two phases of evaluation and the excavation of 100 bodies with about 100 left which would cost another £90,-100,000. What the judge has not asked is what would the site be worth if the archaeology excavation had been completed and why the defendants don't just stump up for the archaeology

What is a Property Enquiry Certificate (PEC) and more to the point how much does it cost and can it be insured against

these pecs seem to be scottish and can be issued by councils:http://www.edinburgh.gov.uk/info/180/pla...cates_pecs seems a bit odd that if a peg is all about what the council knows about a site that the archaeology was missed off to then be found later.

A standard search for a PEC takes about 20 minutes, for which FSPSL normally charges a fee in the order of £65.00 to £75.00.

[46] The last page of the PEC is headed "Important Information". That information is set out in two boxes. The first box contains eight bullet points. Two of them are of relevance to the current dispute:
"Searches have been carried out by our Enquiry Team of all available Public records in respect of all relevant matters covered by the undernoted legislation and regulations insofar as applicable to the property."

"This search is covered by professional indemnity insurance."

it des not say what the the undernoted legislation and regulations saw about archaeology in most examples that I know they go on about sssis and scheduled monuments and listed buildings but never mention other archaeology with as we all know is a subjection of a regulation of tcpa.

I would have preferred it if the judge had said that everybody should imagine that there might be archaeology on a site rather than somebody can give you a certificate that says there is no archaeology on a site particularly without an evaluation. The fact that the judge seems to base most of the decisions on cases where pegs are not mentioned makes me feel that pegs are a bit new and if I was a seller in Scotland I would not issue any peg. Cant imagine that these pegs will cost £75 any more.[/SIZE]
[/SIZE]

[barkingdigger]

I must admit that $75 for 20mins ain't bad - that's a charge-out rate of £1575 for a 7-hour day! (Might have to up my rates...)

Pity one of those 20mins wasn't spent checking the local HER for earlier digs! That's a £1.2m mistake on a £75 job.

[Unitof1]

Thing is barking where is the statutory requirement to search any HER for unevaluated archaeology. Most regs just mention scheduled monuments and sites of special scientific interest and these lists are kept by national quangos. This site does not appear to have been either. HER are arbitrary micky mouse public service jobs worth archive collections that should be in some museum or library. The underlying principle which this judge seems to have accepted is that a PEG would tell the buyer if there was any archaeology on the site rather than the principle that all buyers of sites should be aware that all sites have archaeology on them and the key question is what is the significance of the archaeology. This site had existing buildings on it. I have seen plenty of sites considered insignificant because existing buildings were in the way or it had been thought that the archaeology had been destroyed by the subsequent building. This judge is creating some president for caveat venditor in Scottish law and its kinda based on what the curators say is the significance of the site when a planning application is made. The judge mentions a pre-application submission to the planning authorities which created all the fuss. What could be significant is that it does not appear that any planning application was approved (on the grounds that they were carrying out evaluations) and I don't see how a seller can be made responsible for guaranteeing that a site will get approval.

behind it all is the bloody idiot banks, what would be interesting to know is if the sellers had anything to do with "helping" the buyers finance the acquisition.

First Scottish Property Services Limited is an Inactive business incorporated in Scotland on 27th February 1990. Their business activity is recorded as Dormant Company. First Scottish Property Services Limited is run by 1 current members. and 1 company secretary. 1 shareholders own the total shares within the company. It is also part of a group.

The latest Annual Accounts submitted to Companies House for the year up to 31/05/2012 reported 'cash at bank' of £0, 'liabilities' worth £0, 'net worth' of £0 and 'assets' worth £0. First Scottish Property Services Limited's risk score was amended on 10/09/2013.

Manorgate Limited is an Active business incorporated in Scotland on 12th March 2001. Their business activity is recorded as Retail Sale Of Carpets, Rugs, Wall And Floor Coverings

I got this off the web. The buyers don't exactly come across as property developers as their principle business and we can wonder if they took out any insurance on their speculation.

[barkingdigger]

Thing is barking where is the statutory requirement to search any HER for unevaluated archaeology. Most regs just mention scheduled monuments and sites of special scientific interest and these lists are kept by national quangos. This site does not appear to have been either. HER are arbitrary micky mouse public service jobs worth archive collections that should be in some museum or library. The underlying principle which this judge seems to have accepted is that a PEG would tell the buyer if there was any archaeology on the site rather than the principle that all buyers of sites should be aware that all sites have archaeology on them and the key question is what is the significance of the archaeology.

Indeed the site wasn't Scheduled, but the HER is more than just a statutory list to be consulted for Scheduled Monument Consent - it is a general catalogue of what we know about an area. So even without any designation, a quick search of that area of the map by anyone competent to do so should have turned up the earlier dig, and that report should have set off alarm bells in everyone's heads. But if nobody looked, how would they know? And if HERs didn't exist, how could they check? Sure, we could say that every developer should pay hundreds/thousands for a full DBA hand-crafted from a trawl of libraries for raw grey lit reports every time they even think about a new purchase, but that ain't likely.

As for the agent's culpability, they were roped in because they gave the purchaser the all-clear on archaeology in return for payment. If I buy a used car without getting an HPI check, it's my fault as the buyer when it gets repossessed. But if I buy it from a dealer, and he sells me a duff HPI check that fails to spot a problem, it's his fault for carrying out a defective check. (Something to do with the Sale of Goods Act...) In this case, the buyer chose to divest his responsibility to the agent in return for a payment, so now that the "product" has been shown to be inadequate the judge has allowed the buyer's claim that the agent let him down. Where's the problem or precedent in that?

The bottom line is that Planning permission required the archaeology to be investigated and mitigated, but the buyer foolishly let the agent send him in to battle without any armour. I hope it was enough of a wake-up call to other agents that they need to look at the archaeology as well as the ownership issues if they are going to say there are NO impediments to successful development. The agent in this case could have escaped all this if he'd had a standard clause limiting the scope of his seach to exclude archaeology issues - then it would have been up to the buyer to check.

Either way, both parties now know they need to call in professionals when dealing with land around an ancient town that is ringed by areas called "Whitefriars", "Blackfriars", "Greyfriars", etc! (And we're not just talking about chippies...)

[beamo]

'Interesting indeed but bad news for us. The consequence of this is that the developer can rely on the firm doing the land charge search rather than commissioning a desk top or similar.'

Or perhaps firms currently producing PECs will now consider commissioning desk tops from suitably qualified and experienced archaeologists in order to transfer the risk (check your PI insurances before you chase any work of this sort).

Beamo

[Unitof1]

sorry folks I had overlooked the fact that this is a Ancient Monuments and Archaeological Areas Act 1979 site and that its post determination. Since I realised this I have mostly been going around going wtf.