THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

James Craigie Tannahill Thomson 052214G

Held as a video conference

On 17-21 August 2020 and 24 September 2020

———-

Present

Emma Boothroyd (Chair)
Roger Wilson (PCC Architect Member)
Steve Neale (PCC Lay Member)

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In this case, ARB is represented by Ms Catriona Watt of Anderson Strathern LLP.
Mr Thomson (“the Respondent”) is legally represented by Mr Finlayson of Finlayson Lawyers.
Neither the Respondent nor his representative have attended the hearing.

The Professional Conduct Committee (“PCC”) found Mr Thomson guilty of unacceptable professional conduct (“UPC”) in that he: 1. Produced interim and final Professional Consultant Certificates for the property at 51 St Meddans Street, Troon, Ayrshire, when: a) The flats within the building were not in conformity with Building Regulations in respect of the minimum requirements of fire resistance; b) The building was not constructed in conformity with the drawings approved by Building Control. and that by doing so, he acted in breach of Standard 6 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”). The sanction imposed is erasure.

Decision on facts and UPC

1. In reaching its decisions, the Committee has carefully considered the submissions of the parties, together with the documentary evidence presented to it in the Report of ARB’s Solicitor together with a report from the expert witness Mr Johnston. The Committee heard live evidence from the complainants Mr McA and Mrs McA (“the Complainants”) and Mr Johnston for ARB.

2. The Committee considered that the Complainants gave evidence to the best of their ability and were able to explain in detail how the problems with construction came to their attention and the impact that this situation has had upon them. They were not present during construction and did not visit the site during the construction phase so were unable to assist with information about what would have been visible at any stage. The Committee considered that they gave reliable and balanced evidence. Mr Johnston tried to assist the Committee. His conclusions had changed over the time he had been instructed and the Committee did not consider that he was able to fully explain the rationale behind his change of view.

3. The Committee has accepted the legal advice given by the Legally Qualified Chair. It has had regard to the fact that the burden of proof in this case is on ARB and that the civil standard applies, namely proof on the balance of probabilities.

4. ARB confirmed in final submissions that it did not contend that the allegations were properly categorised as Serious Professional Incompetence (SPI) given the way that the evidence had unfolded.

5. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies.

6. UPC is defined as conduct which falls short of the standard required of a registered person. In reaching its findings on UPC, the Committee recognises that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily give rise to disciplinary proceedings or a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect.

Allegation

1) The Respondent produced interim and final Professional Consultant Certificates for the property at 51 St Meddans Street, Troon, Ayrshire, when:

a) The flats within the building were not in conformity with Building Regulations in respect of the minimum requirements of fire resistance;
b) The building was not constructed in conformity with the drawings approved by Building Control.

7. The Committee finds the facts proved for the following reasons:

Separating Floor/Ceiling

8. The approved plans detailed the required separating floor/ceiling construction. The Committee had regard to the drawings which set out in a separate box the requirement for the construction of the separating floors as follows:

“22mm chipboard flooring on 19mm Gyproc planking on 45mmx55mm (49mm when compressed) Profloor or similar dynamic battens at 800mm centres on 11mm OSB (laid to outer face of timber kit) on 220mm deep TJI’s at centres specified by engineers. 100mm mineral wool insulation with a density of 12-36kg/m3 laid between TJI’s. Mf5 or similar resilient bars fitted to underside of TJI’s with 19mm Gyproc planking & 12.7mm plasterboard as ceiling finish.”

9. A disruptive survey was carried out in September 2015 by Andrew McFarlane, a Surveyor instructed by the Complainants. Mr McFarlane cut a hole in the Complainants floor to inspect the construction. In his report dated September 2015 he stated that,
“Fixed to the underside of these joists [I-section structural timber] and forming the ceiling to the lower flat in each case was intended to be resilient bars carrying a layer of 19mm plasterboard plank followed by a layer of 12.5mm plasterboard. In effect a layer of 19mm plasterboard plank has been omitted”
and further
“…simple timber batons were used rather than dynamic or resilient batons and the 19mm layer of plasterboard plank on top of the batons and below the chipboard was omitted.”

10. In Mr McFarlane’s view the omission of these two layers of plasterboard would have an impact on the fire resistance and would not achieve the Building Regulations required 60 minutes of fire resistance if exposed to a fire from the underside. Mr McFarlane’s view was supported by Mr Johnston who later attended the site and had seen the construction of the separating floor. The Committee also had regard to a report prepared by Mr Campbell, an architect engaged by the Complainants dated May 2018. Mr Campbell had also visited the site and confirmed the detail of the approved specification for the separating floor and also confirmed that both layers of 19mm Gyproc planking had been omitted. In Mr Campbell’s opinion, the separating floors were not constructed in accordance with the approved drawings and did not comply with Building Regulations fire requirements as set out in paragraph 5.2.2.1 of his report.

11. A hole was cut in the ceiling of Flat 5 and Mr McFarlane and Mr Campbell were able to see that the required layers of plasterboard were not present, and this separating floor was also not constructed in accordance with the approved drawings and did not comply with the minimum fire standards.

12. The Committee was satisfied on a balance of probabilities that the separating floor/ceiling above Flat 5 was constructed on the same way as the separating floor/ceiling between Flat 5 and the flat below and was not constructed in the manner detailed in the approved drawings and required by Building Regulations to provide the necessary fire resistance and noise reduction. The Committee concluded that this should have been evident to the Respondent at the point of signing his interim professional consultant’s certificates, particularly in January and February 2013 given the stage construction had reached.

Fire Doors

13. The Committee was provided with the approved drawings which show that the front door and all doors within each flat (with the exception of the door to the en-suite) were marked as “FD30”. The Committee were also told by the Complainant in his oral evidence that he was aware from his own research that all the doors should be “fire doors” in a block of flats of three stories.

14. Mr Johnston confirmed that it was a requirement of the relevant Building Regulations that all doors leading to a protected means of escape should be fire resistant to 30 minutes. In the case of the Meddans Street flats this would include all of the doors off the central corridor within the flat and the front door.

15. The Committee was provided with the technical specifications for the doors that are in place in Meddans Street. The fire resistance of 30 minutes is only achievable if the door is closed. For this reason, the doors are required to be fitted with door closers for the purposes of Building Regulations.

16. Further, in an email to Mr Campbell dated 21 June 2017 South Ayrshire Council confirmed that all fire doors should be fitted with door closers.

17. The Committee was provided with photographs of the front door to Flat 3 and 5 and an internal door in Flat 5 all showing no door closers. The Complainants confirmed that there are no closers on any of their doors and they had not at any stage removed them. Mr Campbell in his report at paragraph 4.2.7.3 states that “The doors have not been fitted with door closers and unless doors are manually closed the 30-minute fire rating will not be maintained.”

18. The Respondent suggested in a previous submission to ARB dated 3 September 2019 that the door closers were present and have subsequently been removed. The Committee does not consider this to be likely given the evidence of the Complainants, Mr Campbell, and Mr McFarlane, together with the lack of any evidence of damage to the doors. The Committee considered it would be remarkable if all door closers were removed throughout all of the flats and it could see no evidence that this was the case. The Committee noted that the doors would be among the last items to be installed and so the lack of any closers would have been visible to the Respondent on his final inspection.

19. In these circumstances the Committee was satisfied that the Respondent produced a final professional consultant’s certificate when the fire doors did not comply with Building Regulation requirements.

20. The Committee was provided with evidence from various sources about the requirements for continuous smoke seals and continuous intumescent seals around the fire doors and around the letterboxes in addition to the door closers. The Complainant explained in his oral evidence that his enquiries with the door manufacturers revealed that the doors were supplied without the intumescent seals or smoke seals. The Committee accepted that this was likely to be the case.

21. The Committee were provided with photographs of an internal door for Flat 5 which showed the smoke seal and intumescent seal side by side set into a channel within the door. The strip was cut and appeared to be reversed which would not provide a continuous seal. The photographs of the entrance door of both Flat 3 and Flat 5 showed the smoke seals and intumescent seals that were not continuous at the hinge. The photograph of the entrance door of Flat 1 showed no smoke seal or intumescent seal. The photograph of the letterbox of one of the entrance doors showed no intumescent seal. In the circumstances the Committee considered that the additional requirements set out by Building Regulations for fire doors relating to smoke seals and intumescent seals were not fully complied with and this should have been apparent to the Respondent when signing his final professional consultant’s certificate.

Separating Walls and Stair Walls

22. The Committee was provided with copies of the approved drawings which set out the approved construction of the separating party walls which specified “1 layer of 19mm Gyproc plank & 1 layer of 12.5mm of plasterboard on both sides”. Mr McFarlane carried out a further disruptive survey and discovered that the Gyproc plank had been omitted on both sides. In his report dated August 2016 he stated that the omission of this Gyproc planking would reduce the fire resistance and would not provide the 60 minutes of fire resistance or sound insulation as required by the Building Regulations. Mr Johnston in his oral evidence confirmed this was also his view. He stated that he had been able to see that at least one layer of Gyproc had not been present when he visited the site. Mr Campbell in his report also made the same findings.

23. Mr Campbell in his report set out at paragraph 4.3.3 the difference between the approved drawing and the actual construction. It was clear to the Committee that the Gyproc plank had been omitted on both sides of the party wall. The Committee accepted the evidence of Mr McFarlane, Mr Johnston and Mr Campbell that this has significantly reduced the fire resistance of this wall to the extent that it will no longer provide the required 60 minutes of fire resistance specified in the Building Regulations. In addition, these separating walls were not constructed in accordance with the approved drawings.

24. The Committee considered that this omission should have been evident to the Respondent when inspecting the work to check conformity with the drawings. In particular at the point of signing the interim professional consultant’s certificates in January and February 2013 given the stage construction had reached.

25. Mr McFarlane carried out a further disruptive survey to the stair walls in August 2016. In his August 2016 report he set out the construction of the stair walls and indicated that they did not comply with any of the approved sample methods of construction. At that stage, Mr McFarlane did not have access to the approved specification for this aspect of the construction. Mr Campbell was subsequently given access to the approved specification by Ayrshire Council. In his report dated May 2018 at paragraph 4.2.4.1 Mr Campbell states that the specification required a layer of 19mm Gyproc plank which has been omitted. The Committee had no reason to consider that this was not the case and it would be consistent with the other approved construction drawings.

26. The Committee considered that on a balance of probabilities the stair wall did not comply with the approved specification and as with the separating walls and floors the omission of the Gyproc planking meant that the stair walls did not provide the required 60 minutes of fire resistance. However, the Committee was mindful of the charge against the Respondent which referred only to the building not being constructed in accordance with the drawings and it was also mindful that it had not seen the separate specification document. The Committee therefore determined to make a finding that the omission of the Gyproc planking should have been evident to the Respondent when inspecting the work and he ought to have appreciated the impact the omission would have in relation to fire resistance. In particular at the point of signing the interim professional consultant’s certificates in January and February 2013, given the stage construction had reached.

Top Floor Ceilings and External Walls

27. Mr Campbell carried out further opening up works in May 2018 and identified that the ceilings of the top floor flats had only one sheet of 19mm plasterboard when 2 sheets of 12.5mm plasterboard were approved in the specification. In addition, the external walls were constructed with only one sheet of plasterboard whereas 2 sheets of 12.5mm plasterboard were approved. The Committee considers it likely that these aspects of the construction were not carried out in accordance with the approved specifications. However, for the same reasons as outlined above, the Committee makes no finding that these aspects of the building were not in conformity with the approved drawings. The Committee had no evidence about the Building Regulations fire resistance requirements of the external walls or the top floor ceilings and so it makes no finding that these aspects did not meet the Building Regulation requirements in relation to fire resistance.

28. The Respondent, in a previous submission to ARB dated 3 September 2019, has confirmed to a limited extent that the building was not constructed as per the drawings and minimum fire requirements.

29. In all the circumstances, the Committee was satisfied that the flats were not in conformity with minimum requirements of fire resistance in respect of the doors, separating ceilings/floors and party and stair walls. The flats were also not in accordance with the approved drawings in respect of the doors, separating ceilings/floors, party and stair walls, top floor ceilings and exterior walls.

30. In deciding whether this amounts to UPC, the Committee had regard to Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.

31. The Committee considered that the declarations on the interim and final consultant’s certificates which confirmed that the Respondent had “visually inspected the above property….to check the use of materials and compliance with the approved drawings and/or specifications” and that the property was generally constructed to a satisfactory standard should not have been issued in these circumstances. The Committee was persuaded that the construction was deficient in a number of material aspects and deviated from the approved drawings. The Committee considered that the Respondent had failed to satisfy himself that the basic requirements were met in relation to the satisfactory construction of walls, floors and ceilings. The Committee found that the Respondent would have had numerous opportunities during his visits and inspections to do so.

32. The lack of door closers and adequate seals would have been obvious to the Respondent on his final inspection and was a serious omission that compromised the safety of those who ultimately purchased the flats.

33. In the Committee’s view the Respondent’s conduct constituted a breach of Standard 6. The Committee did not consider that it was appropriate for the Respondent to rely on the word of the contractor or his experience of previous construction work to the extent that he did. Further, the Committee did not consider any time constraints for site inspections gave the Respondent a reason for failing to adequately determine the construction in the approved form as stated in the inspection certificates. The Committee considered that the Respondent did not discharge his responsibility faithfully, conscientiously and with due regard to the relevant technical and professional standards in certifying that the flats had been constructed in general conformity with Building Regulations and the approved drawings. There was no evidence that the Respondent challenged the contractor on any matters during the course of the construction or highlighted any issues. The Respondent states he was awaiting the results of a sound test before signing the final certificate which would have highlighted the problems with the separating floor. In the Committee’s view this was not a sufficient safeguard and the Respondent should have satisfied himself by an adequate visual inspection of all aspects of construction at appropriate intervals.

34. The Committee considered these failings to be very serious. They have compromised the safety and wellbeing of those who live in the flats. The Complainants explained the effect that this has had on them over the whole of their occupation. The flats are excessively noisy and the occupants are terrified of a fire breaking out. The flats cannot be sold and are effectively worthless without costly and disruptive remedial work being undertaken. This has had a very significant effect on those who live there.

35. The Complainant explained that they were re-assured by the Respondent’s certificates when purchasing the flat and looked upon them as a guarantee that the flat and the block had been properly constructed. The Complainant explained that she relied on this certificate as it was signed by an architect local to the area and she was reassured that it was equivalent to, if not better than, an insurance backed guarantee. These certificates are signed by a qualified architect. If architects cannot satisfy themselves that the building is adequately constructed or seek to place blame on to the others then the certificates are worthless and have no real value.

36. It is the Committee’s finding that the facts found proved and the corresponding breach of the Code are serious and adversely impacts both on the reputation of the architect and the profession generally. They represent a standard of conduct falling significantly and materially below the standard expected of a registered architect.

37. In all the circumstances and for the reasons set out above, the Committee finds that the Respondent’s conduct does amount to unacceptable professional conduct.

38. The matter did not conclude in the allotted time and was re-convened on 24 September 2020. The Respondent and his representatives were notified that the matter had not concluded on 21 August 2020 and that the proposed date to continue was 24 September 2020. On 17 September 2020 the Respondent and his representative were sent copies of the Committee’s decision relating to facts and UPC. On 21 September the Respondent and his representative were sent the link to participate in the hearing. On the 23 September 2020 those representing the Respondent confirmed that neither they nor the Respondent would be attending for the reasons previously submitted. The email made reference to the earlier submissions and asked that the Committee considered these in mitigation.

39. The Committee therefore considered whether it should proceed in the absence of the Respondent and his representative or to adjourn matters. In making that decision the Committee took account of the representations made by Ms Watt which in summary stated that there was no compelling reason to adjourn proceedings and there was a public interest in matters proceeding. Ms Watt referred to the case of R V Hayward & Jones [2003] 1 AC HL and set out the factors to which the Committee should have regard. She submitted that there was nothing new that was not dealt with in the previous submissions and the Respondent and his representative had chosen not to attend. Therefore an adjournment would serve no useful purpose and would not secure the Respondent’s attendance.

40. The Committee accepted the advice of the Chair and had regard to the relevant factors as outlined in the case of R v Hayward, Jones & Purvis in the Court of Appeal [2001] EWCA Crim 168 and approved in the House of Lords and also the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162.

41. The Committee had regard to all of the previous applications for an adjournment or stay of these proceedings and considered that there was nothing new to consider. The Respondent was continuing to maintain his stated intention not to attend the proceedings.

42. The Committee had regard to its previous reasons to proceed in the absence of the Respondent and considered that these reasons remained valid. There was nothing before the Committee that suggested that an adjournment would secure the Respondent’s attendance.

43. The Committee has exercised great care and caution in reaching its decision and has carefully considered the overall fairness of the proceedings. The Committee was satisfied that the Respondent has been given an adequate opportunity to appear before the Committee to argue his case and that he had chosen not to do so.

44. In considering all of the other circumstances the Committee did not consider it was appropriate to adjourn the hearing. In balancing the interests of the Respondent against the public interest in the expeditious disposal of matters it considered that it was fair and proportionate to proceed in the absence of the Respondent.

Sanction

ARB Submissions
43. Ms Watt set out ARB’s submissions in relation to sanction and drew the Committee’s attention to ARB’s Sanctions Guidance. Ms Watt submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction.

44. In terms of aggravating factors, she asked the Committee to take into account the following:

I. The very serious effect of the failings of the Respondent on the residents of the flats.
II. The Respondent had not demonstrated any insight into his actions and continued to blame others for his failings.
III. The Respondent had not provided any evidence of corrective steps taken to reassure the Committee that his failings will not be repeated.
IV. The Respondent had a number of opportunities during the construction to identify the problems.

45. As for mitigating factors, Ms Watt informed the Committee that there were no adverse regulatory findings against the Respondent in the context of a lengthy career of 30 years. The Respondent had, to a limited extent, provided responses to ARB even though he had not participated in the hearing process.

Submissions on behalf of the Respondent

46. The Respondent’s representative outlined in his written submissions that the Respondent has had a lengthy career with no previous complaints or concerns. This matter occurred in the context of one project in which the builder had deliberately attempted to mislead the Respondent.

Decision on sanction

47. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and ARB, and to declare and uphold proper standards of conduct and behaviour. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Legally Qualified Chair. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, ARB Sanctions Guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case and it has exercised its own independent judgement.

48. The Committee has identified the following aggravating factors:

I. The Respondent’s failings have had a very serious effect on the residents of the flats. They are resident in unsafe properties that they are unable to sell and from which they could possibly be evicted. In addition, they have to live with intolerable noise on a daily basis and are conscious that their neighbours can hear noise. The costs and disruption associated with remedial work will be significant;
II. The Respondent has not provided any evidence of any remorse or real insight into the seriousness of these failings and continues to blame others such as Building Control and the builder;
III. The Respondent had a number of opportunities to easily identify the problems with the building and his failings persisted throughout the project.

49. The Committee has identified the following mitigating factors:

I. the Respondent has a long and unblemished career spanning 30 years;
II. The failings relate to one project.

50. Taking into account the aggravating and mitigating circumstances and looking at all the facts in the round, the Committee considered there was a risk of repetition given the lack of appreciation of the issues and the failure to provide evidence of any remedial steps undertaken.

51. The matters found proved are serious to the extent that the Respondent’s failings diminish both his reputation and that of the profession generally, and exposed those who relied on his professional certificates to substantial detriment and financial loss. The public would expect to rely on a certificate signed by an architect confirming a building had been constructed in accordance with the relevant standards. The public would expect any architect to be satisfied following appropriate inspection himself that such certification was correct. The Committee is mindful of its role to declare and uphold proper standards of conduct and behaviour. The Committee has reminded itself as to its findings regarding the seriousness of all the matters found proved. Having done so, the Committee concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.

52. The Committee has balanced the Respondent’s own interests with those of the profession and the public and has borne in mind the need to act proportionately.

53. The Committee first considered whether to impose a reprimand. However, having considered the Sanctions Guidance and the factors detailed above, the Committee considered that the nature of the UPC found proved was too serious for such a sanction to be considered appropriate or proportionate. The Committee reminded itself of the findings it had made in relation to UPC and did not consider that the Respondent’s conduct was at the lower end of the scale.

54. The Committee next considered whether to impose a penalty order and considered that, for the same reasons, such an order was neither appropriate nor proportionate. The UPC is too serious for the imposition of a penalty order.

55. The Committee then considered whether to impose a suspension order. Having carefully considered the sanctions guidance the Committee concluded that such a sanction would be insufficient to uphold the reputation of the profession or protect the public. Given the seriousness of the UPC and the identified risk of repetition together with the lack of any meaningful remorse or insight the Committee concluded that a suspension order would not be sufficient to uphold the public interest. The Committee has taken into account the Respondent’s long career and the fact that this was a failing in relation to one project. However, the failings are so serious and so fundamental that the Committee considers these are incompatible with continuing to be an architect. The Committee considered that the seriousness of the matters found proved were at the higher end of the scale and damaged the trust that the public places in the profession and fell far short of what is expected.

56. The Committee considered that given the seriousness of the matters found proved the only appropriate and proportionate sanction to uphold the reputation of the profession and protect the public is erasure. The Committee has had regard to the impact of such a sanction on the Respondent but considers that the public interest outweighs his interests.

57. The Committee therefore directs that the Respondent’s name is erased from the register. The Committee recommends that the Respondent shall be entitled to apply for restoration to the register in no less than two years’ time which the Committee considers is proportionate in the circumstances.

58. This would mean that should the Respondent wish to return to practice as an architect, he would have to demonstrate that he is fit to do so by satisfying ARB that he had addressed the failings that gave rise to the findings of this Committee before returning to practice as an architect. The Committee considered that this was an essential safeguard for the public and to ensure that the reputation of the profession is upheld.

59. That concludes this determination.