Jonathan,
My non-legal take on this.
"An SI has been carried out for client x, 3 years ago. Client y has now purchased the site and included this original report (it is supplemented by a different consultant's additional SI report). If the consultants have assessed both sets of data properly and included confirmation that they acknowledge that they cannot rely on this data fully, is this reasonable?"
As I see this, the developer is responsible for the site. If things go wrong they are first in the chain to have to pay to put it right. If they have employed a consultant, and the consultant has made a mistake, the consultants PI cover comes into play. If the developer cannot rely on the consultants report, i.e. they didn't pay for it and haven't had the report assigned to them, this is the developers problem. Therefore, I do not see why you need to check whether whether the developer can rely on the reports or the consultants PI cover - this is a matter between the Developer and the consultant.
"If a consultant goes out of business, should I refuse to review any of their reports in future as they will not have PI cover? Should I check that they are solvent before accepting the report?"
Same as above - this is a matter between the Developer and the consultant, if the Developer cannot claim from the consultants PI this is their problem not yours.
"Most consultant's reports I receive which include third party reports, do state that they are not placing any reliance on the third party data. I believe that it is reasonable to use this data, and any competent consultant would be remis NOT to review it as it is relevant."
Agree, and I can't see too much wrong with this use of a report (my opinion). However, there is no comeback on the supplier of the report in most circumstances.
I'm not 100% sure on copyright issues. However infringement of copyright does not make a report incorrect, but it is an issue for the copyright holder.
My interpretation of the EAs terms and conditions is that "You must not make any Commercial use of the Information", this would include the EA data. I don't agree with their terms but that is a different matter.
Regards,
Robin Lancefield
Senior Consultant,
Halcrow Group Ltd
-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of CUNDALL, Jonathan
Sent: 29 June 2011 10:13
To: [log in to unmask]
Subject: Re: Environment Agency Data
Morning All,
As a regulator, I am asked to review and confirm acceptance of reports. I am aware of copyright and licencing issues that apply to reports and data contained therein. The recent changes to OS Opendata/BGS geodata etc has made this matter a bit more murky as some data can be freely reused for any purpose, others can be used with copyright acknowledgement and others can't be used without a licence.
It would be useful if someone can provide a link/guide which would no doubt assist all regulators (and some consultants) to understand the legal position of this sort of information.
I frequently come across issues like this. For example:
A PRA is prepared for one client who submits it in support of a planning application. The same report is submitted for the same site a year later but for a different client.
An SI has been carried out for client x, 3 years ago. Client y has now purchased the site and included this original report (it is supplimented by a different consultant's additional SI report). If the consultants have assessed both sets of data properly and included confirmation that they acknowledge that they cannot rely on this data fully, is this reasonable?
As long as I am satisfied that the risks have been identified/addressed, the report meets it's intended technical purpose. However, there are issues of copyright and licencing. Does the new client have permission to use/rely on this report? Should I check this? Or is this a legal matter between the consultants/applicant regarding liability/payment? If I should be checking this, who should I inform? Or should I simply refuse to accept the report without a letter confirming that the client can use the report?
If I should be checking this, then should I also be checking the PI/public liability insurance of the consultants to ensure that they are covered for this sort of work?
If a consultant goes out of business, should I refuse to review any of their reports in future as they will not have PI cover? Should I check that they are solvent before accepting the report?
Most consultant's reports I receive which include third party reports, do state that they are not placing any reliance on the third party data. I believe that it is reasonable to use this data, and any competent consultant would be remis NOT to review it as it is relevant.
With regards to OS/Crown copyright, I also understood that the WIMBY/BGS data etc can be used for non commercial purposes (is inclusion in a report to demonstrate confirmation of their assessment commercial use or reference?). It is the OS maps in the background that are covered by Crown copyright not the data layer on top. Therefore if a consultant has an appropriate OS licence what are they in breach of?
I know that the search companies provide good quality data in a readily accessible form, but having worked as a consultant before commercial searches were available and the internet was a very different place, I used to have to go to the local library and copy/trace maps etc and never seemed to have any probem using that information (we had the appropriate licences).
Why shouldn't this be the case now? If a consultant wishes to take the time to gather the data from all the different sources, I think that this is perfectly reasonable.
Regards
Jonathan
-----Original Message-----
From: Contaminated Land Management Discussion List [mailto:[log in to unmask]] On Behalf Of Paul Nathanail
Sent: 29 June 2011 09:34
To: [log in to unmask]
Subject: Re: Environment Agency Data
Jonathan - the issue is not so much the data - that is the concern of the data owner to protect their property; the issue is the interpretation of that data. There is a danger that what is an appropriate interpretation for one set of legal, contractual and other circumstances is stolen (I use the words deliberately) and fraudulently used in a different set of circumstances to the detriment of both the client and the producer of the original interpretation.
kind regards
Paul Nathanail
Director, eMasters in Contaminated Land Management
> -----Original Message-----
> From: Contaminated Land Management Discussion List
> [mailto:[log in to unmask]] On Behalf Of
> Jonathan Churchill-Coleman
> Sent: 29 June 2011 09:12
> To: [log in to unmask]
> Subject: Re: Environment Agency Data
>
> There have been some very interesting comments on this issue of
> publically available and public. In particular the insurance issue
> arising from using or relying information without proper permissions.
> I have even seen Phase 1 studies that had SCREEN DUMPS from the WIMBY
> site, I wonder how this impacts their PL Insurance??
>
> The FOIA, Environmental Information Act etc exist to allow concerned
> members of the genera public access to Environmental data. I remember
> once being told that WIMBY site often had *0,000 hits per day... I
> had never realised that we had so many concerned citizens.
>
> Jon Coleman
> www.findmaps.co.uk
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