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Mr Charles Johan Louwerse

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

CHARLES JOHAN LOUWERSE (050245F)

Held on

17-21 July 2023

At

The International Dispute Resolution Centre (IDRC)

1 Paternoster Lane

London

EC4M 7BQ

and on 9-10 September 2023 in-person and via video conference

At

Architects Registration Board (ARB)

8 Weymouth Street

London

W1W 5BU

_______________

Present:

Margaret Obi (Chair)
Robert Dearman (PCC Architect Member)
Alastair Cannon (PCC Lay Member)

_______________

The Architects Registration Board (“the ARB”) was represented by Mr Greg Foxsmith of Kingsley Napley LLP (“the Presenter”).

Mr Charles Louwerse (“the Registered Person”) attended the hearing and was represented by Mr Roger Shrimplin, who is an Architect.

 

The Professional Conduct Committee (“the Committee”) determined that the Registered Person is guilty of Unacceptable Professional Conduct (“UPC”).  It did so, having found the following particulars of the Allegation proved:

 

  • The Architect failed to adequately advise his clients regarding Listed Building Consent.
  • The Architect failed to deal with the complaint within the timeframes as outlined in Standard 10 of the Architects Code.
  • The Architect failed to provide adequate terms of engagement contrary to 4.4 of the Architects Code.

The sanction imposed by the Committee is a Reprimand.

 

Hearings Dates

  1. The hearing commenced on 17 July 2023 and was adjourned part-heard on 21 July 2023. Prior to the adjournment, the Committee had been deliberating in private having heard the oral evidence and the parties’ submissions on facts and

 

  1. On 21 July 2023, the parties were informed that the Committee’s determination on facts and UPC would be circulated to them by email. They were also informed that if additional hearing time was required this would have to take place over a weekend as the Committee was unable to find suitable dates to reconvene before the end of the year. Alternative weekend dates were communicated to the parties, and it was subsequently confirmed that, if required, the hearing would re-commence on Saturday 9 September 2023, and Sunday 10 September 2023.

 

Allegations

 

3. The Registered Person faced the following Allegations:

 

  1. The Architect failed to adequately advise his clients regarding Listed Building Consent;

 

  1. The Architect allowed and/or facilitated the works to commence without Listed Building Consent;

 

  1. The Architect failed to deal with the complaint adequately and/or within the timeframes as outlined in Standard 10 of the Architects Code;

 

  1. The Architect failed to provide adequate terms of engagement contrary to 4.4 of the Architects Code.

 

Background

 

  1. The Registered Person is a registered architect at his own company, Charles Louwerse Architects. In 2018 he was instructed in relation to the renovation of a Grade II listed building.

 

  1. The background circumstances, as set out below, are based on the report prepared by Kingsley Napley LLP. The Presenter relied on this report during his opening of the case. The Committee was aware that there is a distinction between planning permission and Listed Building Consent. However, it noted that in some of the correspondence between Iain Baxter (“the Referrer”) and his wife and the Registered Person, these terms appear to have been used interchangeably.

 

The Property

 

  1. In 1994, the Referrer and his wife bought a Grade II listed, three-storey, four-bedroom property known as Stone House (“the property”) for use as their family home.

 

  1. In 2016, the Referrer attempted to sell the property but having been unsuccessful, decided to renovate the property to bring it up to modern standards.

 

Instruction of the Registered Person

 

  1. In April 2018, the Registered Person attended the property for discussions about the proposed renovation. The Referrer and his wife decided to instruct the Registered Person because he was local to the area and had a good reputation. The Referrer and his wife were living in Belgium at the time and needed an Architect who would obtain all the necessary planning permissions and manage the project during the building phase.

 

  1. On 12 April 2018, the Registered Person sent an email to the Referrer advising that some works could be carried out prior to the grant of Listed Building Consent. At that time, the Registered Person considered that essential work could be undertaken whilst an application for Listed Building Consent was being considered by Dorset Council (“the Local Authority”). He envisaged that the property could be made habitable by Christmas 2018. An initial fee proposal was attached to the email. The fee proposal specified the various work stages and costs, including detail of the preparation of documents required and submission of applications for Listed Building consent and planning permission.

 

  1. The timescale slipped for various reasons. In an email dated 31 July 2018, prior to appointment, the Registered Person set out key dates to meet the Referrer’s new timescale of completion by July 2019, advising that “the planning process takes a minimum of 12 weeks. So, including preparation for submission, we are looking at a decision in December”. The Referrer’s son was due to get married in July 2019.

 

  1. The Referrer formally appointed the Registered Person on 5 August 2018. The appointment was for full architectural services in connection with the project, including the submission of an application for Listed Building Consent and contract administration. It was intended that work would begin in January 2019 with a view to being completed in time for the Referrer’s son’s wedding in July of that year.

 

Terms of Engagement

 

  1. The Referrer stated that he was not provided with a contract or terms of engagement by the Registered Person. However, general terms of reference, which gave broad detail about the role of an Architect, were attached to the email sent on 12 April 2018.

 

  1. At the Registered Person’s request, the Referrer emailed confirmation of his appointment on 5 August 2018.

 

Advice regarding Listed Building Status and Consent

 

  1. It was the Referrer’s understanding that all the planning applications that the property required would be done before any building work started, as indicated by the Registered Person in his email of 31 July 2018. The Referrer stated that between Summer 2018 and Christmas 2018, he heard very little from the Registered Person and believed he was obtaining the permissions required to start on the plans.

 

  1. A set of plans were provided to the Referrer on 6 November 2018. In the accompanying email, the Registered Person stated that the Listed Building application would be submitted as soon as the Referrer had accepted these plans and that a decision would be expected around February 2019. The Registered Person stated that the aim was for work on the project to start in January 2019.

 

  1. The Referrer confirmed that he was never provided with any form of planning application to review. To his knowledge, no planning application was made to the Local Authority in 2018.

 

Commencement of works

 

  1. The Registered Person emailed the Referrer on 20 January 2019, advising that work would start the following week and outlining the work to be done, with the priority being rewiring and plumbing. He stated that listed building works would be delayed until after July 2019 and that the application would not be submitted until after the work commenced. This approach was similar to that outlined in the Registered Person’s email of 12 April 2018, in which he stated:

 

The timescale would ideally be such that essential works to the existing house could be started while the application is being considered…Work on the changes to the house would then proceed next year once the planning process was complete.

 

  1. Work on the project began on 28 January 2019, three weeks after the date the Referrer expected it would commence. The Referrer was still aiming to meet the July 2019 deadline because the Referrer and his wife were returning from Belgium and needed a property to live in whilst they were in England for the wedding. However, the Referrer stated that he was not happy with delaying listed building permissions and would have preferred to have them in place before any building work commenced.

 

  1. In terms of discussion as to the risk of proceeding with building works before Listed Building Consent was obtained, the Referrer confirmed that early in the project the Registered Person mentioned that he, as the owner of the property, would be liable for any costs to reinstate the house to its former condition should a “stop order” be issued. No risks of proceeding with the initial works before later submitting applications were ever provided in writing.

 

  1. On 22 January 2019, the Referrer’s wife sent the Registered Person a letter setting out her concerns with the proposed approach to wait for planning permission. She stated that her preference was for all of the applications to be submitted at the same time and prior to commencing building works.

 

  1. In February and March 2019, the Referrer was still in Belgium so had very little knowledge of the building work underway and no real input into what was taking place. The Referrer believed at this time that the only work being carried out was rewiring and replumbing. He was not aware that internal walls from a bathroom on the first floor and the top floor of the house were being removed or that a hole had been made to create a window.

 

Stop Order

 

  1. On 1 March 2019, the Local Authority issued a “stop order”, a copy of which was sent to the Registered Person. It was forwarded to the Referrer and his wife on 4 March 2019. In the accompanying email, the Registered Person stated that work had had to stop as an enforcement officer had visited the site and closed it down.

 

  1. The Referrer received a further email from the Registered Person on 7 March 2019. He explained that the enforcement officers had discussed the elements which should not have commenced without planning permission and advised that the work already carried out and that the Referrer wished to carry out, needed to be submitted as a formal pre-application inquiry. The Registered Person advised that the pre-application would take six weeks and the Listed Building Consent 8 to 12 weeks. He stated that he would submit the pre-application as soon as possible.

 

  1. The Referrer and his wife were required to travel to the UK and take part in a formal interview under caution by Local Authority officers (known as a PACE interview as conducted under the Police and Criminal Evidence Act 1984) for criminal damage on the Listed Building on 2 April 2019.

 

  1. Having not visited the property since February 2019, they did not know what work had been carried out. During the interview, they were shown pictures of the house, which was the first time they discovered the extent of the work on the property:

 

  • one external wall had had an opening created in it for a planned window;
  • a bathroom had been removed;
  • a stud wall was taken down on the top floor;
  • a staircase had been removed; and
  • a large pit excavated in one room.

 

  1. As a result of the “stop order” some of the work undertaken had to be reinstated. This included a bathroom that had been removed (involving rebuilding two lath and plaster walls, the refitting of another lath and plaster wall on the top floor of the house) and filling the hole in a wall that had been created to form a window.

 

  1. The Referrer did not appreciate that the work which needed to be reinstated was being carried out during January to March 2019, believing that only rewiring, plumbing, and fixing floors were taking place. As the Registered Person was the project manager, all work undertaken was under his direction and the Referrers followed his advice.

 

  1. Following the “stop order”, all work halted on the project until the relevant planning permissions had been obtained.

 

  1. On 9 August 2019, the Registered Person provided the Referrer with a schedule of works, which enabled him to calculate the cost of the reinstatement to be more than £14,500.

 

  1. In June 2019, conservation surveyor Mr K M, applied for Listed Building Consent as the Registered Person’s credibility with the Local Authority had been damaged. Permission was granted on 19 September 2019. The work continued on the project after 20 September 2019 and eventually finished in the spring of 2021.

 

  1. On 6 November 2020, the Referrer emailed the Registered Person raising the issue of liability for work done before the “stop order”. He stated:

 

“…a lot of the work done under your instruction had to be returned to the original state, which we have had to pay for. We also had to pay additional professional fees for building consent to be approved. We believe that the liability for this work plus any additional costs should be yours”.

 

  1. A meeting with the Registered Person to discuss the issue took place in December 2020, at which time the Registered Person agreed to provide a breakdown of items that had to be reinstated, and what had remained in place after permission had been granted, to determine the cost incurred. This was followed by an email on 14 December 2020 in which it was confirmed that the Registered Person would “see if he can find out the cost of abortive work because of ‘stop order’”.

 

  1. Several further emails were exchanged. The Registered Person did not provide the information he had agreed to provide in the December 2020 meeting. Therefore, in an email sent on 26 March 2021, the Referrer imposed a deadline of 15 April 2021 for the provision of the information, after which the complaints process with the Architects Registration Board would be instigated.

 

Complaint

 

  1. The Referrer initiated the formal complaint process with the Registered Person by sending a letter of complaint on 19 April 2021.

 

  1. The Registered Person acknowledged receipt of the complaint on 20 May 2021 but did not provide a substantive response within the 30-day limit. On 9 June 2021, the Referrer emailed the Registered Person and noted a response should have been provided by 3 June 2021.

 

  1. On 17 June 2021, the Registered Person advised that he was away until 29 June 2021 and would provide a substantial response following his return. A firm deadline of 15 July 2021 was set, giving the Architect 60 working days to respond.

 

  1. The Registered Person emailed on 12 July 2021, stating that he had explained and agreed on the course of action prior to commencement in respect of the Listed Building Consent application. He accepted that the extent of the work carried out did extend beyond that originally envisaged and some reinstatement was carried out as a consequence. He stated that he expected to be paid for his work and saw no justification for the withholding of his fees.

 

  1. The Referrer responded on 13 July 2021 stating that throughout the project, he and his wife had followed the Registered Person’s advice as the professional with the necessary knowledge of the building regulations and, as such, he was liable for the abortive costs associated.

 

  1. The Registered Person responded on 16 July 2021, stating that the pressure of the July 2019 deadline was the reason why work was done prior to planning applications being submitted.

 

  1. On 26 July 2021, the Registered Person provided a breakdown of some of the abortive costs. Within the email, the Registered Person stated that it was agreed in November 2018 that the work would proceed “contrary to the fee proposal“. The Referrer maintained that he reluctantly agreed in January 2019 to press ahead without the planning permission, in accordance with the Registered Person’s advice at the time.

 

  1. The Referrer advised the Registered Person on 3 August 2021 that he believed the figures to be incorrect as they did not match the figures quoted for reinstating parts of the house detailed in the Statement of Work. He did not receive a response and so he followed up three months later on 23 November 2021.

 

  1. The Registered Person responded on 3 December 2021, stating that he had responded to the emails. This was the only response to the Referrer’s email sent on 23 November 2021 until 25 October 2022, when the Registered Person sent some of the information the Referrer was seeking.

 

  1. On 14 February 2022, the Referrer submitted a complaint to the ARB.

 

Preliminary Issues

 

Application for Mr Shrimplin to represent the Registered Person

  1. At the outset of the hearing Mr Shrimplin made an application to be permitted to represent the Registered Person. He confirmed that he is an Architect and is not legally qualified. The Presenter did not object to this request.

 

  1. The Committee noted that Rule 10 of the Professional Conduct Committee (PCC) Rules anticipates that any representative will be legally qualified. However, Rule 15 provides the Committee with the discretion to issue directions as it sees fit in the interests of justice.

 

  1. The Committee noted that Mr Shrimplin had been instructed by the Registered Person to advocate on his behalf and in response to questions from the Committee confirmed that he was familiar with the PCC Rules and had in the past provided representation to other registered Architects. In these circumstances, the Committee concluded that it was fair and reasonable to permit Mr Shrimplin to represent the Registered Person.

 

Application in relation to the Referrer

 

  1. The Referrer attended the hearing to give evidence. However, Mr Shrimplin drew to the Committee’s attention the Referrer’s email to the ARB, dated 13 February 2023, in which he stated that his dispute with the Registered Person, with regard to the costs of the abortive works, had been settled. The Referrer went on to state that “…repayment of these costs was my ultimate aim so I would like to the complaint to be closed (sic)”. The ARB replied to the Referrer on 15 February 2023 stating that it was unable to close the complaint because the Investigations Panel had concluded that the Registered Person may have failed to meet the professional standards of Architects. The ARB subsequently informed the Referrer that he would be called as a witness, and he was notified of the remote hearing dates. The Referrer confirmed in an email, dated 23 April 2023, that he was available “between those dates”. He was later informed by ARB, in an email dated 14 June 2023, that the hearing would be taking place in person, and he confirmed on 18 June 2023 that he “…should be able to attend an in-person hearing…”.

 

  1. Mr Shrimplin submitted that as the ARB has no power to compel witnesses to give evidence the Referrer should have been informed of this. It was further submitted that the Referrer should also have been informed that he could withdraw his complaint on the understanding that he would not need to attend to give evidence or withdraw his complaint on the basis that his evidence would be disregarded by the Committee. Mr Shrimplin invited the Committee to issue a direction that the various options should be put to the Referrer in the presence of himself and the Presenter or alternatively, put to him by the Committee in the hearing room.

 

  1. The Presenter opposed the application. He submitted that the hearing should proceed as normal given that the Referrer had attended to give evidence. He further submitted that, if the Committee was minded to grant the application, any discussion should take place outside the hearing room to avoid the Referrer being subjected to “an ambush”.

 

  1. The Committee was provided with the relevant email correspondence between the Referrer and the ARB. The Committee acknowledged that the Referrer stated in clear terms that, as far as he was concerned, his complaint to the ARB had been resolved to his satisfaction. However, following the Investigation Panel’s determination that there was a case to answer, the ARB had a duty to pursue the potential professional standard breaches. The Committee was not persuaded that there was any obligation on ARB to advise the Referrer that he did not have to attend the hearing to give evidence. Nor was the Committee persuaded that it would be in the interests of justice for the Referrer to be advised of various options prior to giving evidence. In reaching this conclusion the Committee noted that the Referrer confirmed his availability and attended the hearing to give evidence. There was no indication from the Referrer, following on from his email on 13 February 2023, that he was reluctant or unwilling to give evidence.

 

  1. For these reasons, the Committee refused the application.

 

Admissions

 

  1. The Registered Person made partial admissions at the outset of the hearing. However, as these were not unequivocal admissions of the whole or part of the factual particulars, in fairness to the Registered Person, the Committee did not announce that any of them had been found proved by admission.

 

  1. At the conclusion of the oral evidence the Registered Person was invited, by the Committee, to indicate (following consultation with Mr Shrimplin) if there were any admissions that he wanted to make. The Registered Person subsequently confirmed that Limb 2 of Particular 3 was admitted in respect of the failure to respond to the Referrer’s complaint within the required timescales.

 

  1. The Committee announced that Particular 3 (Limb 2) was found proved.

 

Evidence

 

  1. The Committee took into account the documentary evidence contained within the hearing bundle which included:

 

i. Report to ARB prepared by Kingsley Napley LLP;

ii. Witness Statement of the Referrer;

iii. Inquirer’s Report dated 14 April 2023;

iv. Inquirer’s Supplementary Report dated 10 July 2023;

v. Various email correspondence;

vi. Registered Person’s representations; and

vii. Registered Person’s Further Representations.

 

  1. The Committee heard oral evidence from the ARB’s witnesses – the Referrer and the Inquirer – Mr Samuel Morley. The Committee also heard oral evidence from the Registered Person.

 

Decision on Facts

 

The Committee’s Approach

  1. The Legally Qualified Chair (LQC) advised the Committee that the burden of proof lies with the ARB and the standard of proof is on the balance of probabilities. The Registered Person did not have to prove or disprove anything. The LQC advised that where the allegation refers to a ‘failure’ the ARB must first prove that the Registered Person had a duty to do something, and secondly, that it was not done. If the Committee determines that there was a duty to do something, which was not done, it should go on to consider if there is any evidence that this was for good reason.
  2. The LQC further advised that having given the Inquirer’s evidence careful consideration, which would include an assessment of his expertise, conclusions, and the quality of the analysis which informed his opinions, the Committee may accept his evidence in whole or in part.
  3. The Committee was not required to address every point that was made; only such matters as enabled it to conclude whether the facts under consideration had been proved.

 

Findings of Fact

 

Particular 1 – Found Proved

 

  1. The Committee noted that the Registered Person acknowledged from the outset of the project that Listed Building Consent would be required. In his fee proposal, dated 11 April 2018, he referred to submission of Listed Building Consent and planning permission before any works commenced on site. In his email of 31 July 2018, the Registered Person advised the Referrer in relation to the “Planning process”, stating that it should be commenced as soon as possible. On 6 November 2018, the Registered Person further advised the Referrer that an application would be made for Listed Building Consent as soon as they had arrived at an acceptable proposal.

 

  1. The Registered Person stated during his oral evidence that his advice changed once it became clear that the agreed timescales to get the works completed by July 2019, in time for the Referrer’s son’s wedding, were not achievable. During a site meeting on 31 December 2018, the Registered Person suggested the application of Listed Building Consent be made following completion of the renovation works. In January 2019, the Registered Person provided further advice that certain internal works could proceed without Listed Building Consent and that the Local Authority should not be notified at this time to avoid the risk of delays if they intervened.

 

  1. The Referrer stated in his witness statement and during his oral evidence that he was never warned of the risks of starting any building work without obtaining Listed Building Consent.

 

  1. The Inquirer was instructed by Kingsley Napley to produce a supplementary report following service of the Registered Person’s defence bundle. The Inquirer stated that the supplementary report superseded his original report and provided “clarifications”. The Inquirer stated that Listed Building Consent must be obtained prior to the start of demolition or alteration works to a Listed Building which in accordance with the Planning (Listed Building and Conservation Areas) Act 1990 (“the Act”) “would affect its character as a building of special architectural or historic interest.”. The exception covered by the Act is urgent work for reasons of health and safety or preservation of the building. If such work is required, the minimum work necessary should be carried out and the Local Authority must be informed in writing as soon as reasonably practicable. Another exception (which is not covered by the Act) is if the work is purely for maintenance. The Inquirer stated that although maintenance might not require Listed Building Consent it is a matter of opinion whether works fall into this category and therefore, he would be concerned if an Architect did not consult the Conservation Officer prior to the commencement of any works in circumstances where the scope of the work is unclear. He described commencing work prior to obtaining consent as a ‘high-risk strategy’. He stated that this was particularly important as starting works on a Listed Building without Listed Building Consent is a criminal offence and could give rise to a criminal investigation. The Inquirer stated that in order to provide reassurance to an owner of a Listed Building there is the option of applying to the Local Authority for a Certificate of Lawfulness.

 

  1. The Inquirer stated there was little evidence that Listed Building Consent would not be required for this project. This opinion was based on the Inquirer’s understanding that the Local Authority issued a letter (dated 1 March 2019), requiring work to stop immediately, followed by a second letter (dated 14 March 2019), setting out the works which in their opinion had been carried out without Listed Building Consent. However, the Committee noted that during the hearing it was accepted by both parties that the ‘stop order’ was, in reality, a strongly worded letter of advice, rather than an enforceable direction. It was also accepted that any reasonable Architect would do as the Registered Person did and cease all work following receipt of such a letter.

 

  1. In the opinion of the Inquirer, the Registered Person’s advice that work could start in advance of Listed Building Consent was inadequate as it included proceeding without any consultation with the Local Authority to agree which works, if any, did not require Listed Building Consent. It was also his opinion that the Registered Person’s advice that the internal works could proceed without Listed Building Consent to avoid delays was inadequate. The Inquirer stated that the Registered Person should have addressed the project delays head-on with the Referrer and advised him that the overall completion of the project would be delayed. He should have engaged with the Local Authority rather than attempting to conceal the work from them.

 

  1. During cross-examination the Inquirer was taken through the 15 items which the Local Authority considered to be works that required Listed Building Consent. Despite initially deferring to the opinion of the Local Authority he accepted that the majority of the works would not have required Listed Building Consent or may not have required Listed Building Consent.

 

  1. Overall, the Committee had no reason to doubt that the Inquirer did his best to assist the Committee which included making appropriate concessions in accordance with his overriding duty. However, at times his expert evidence fell short of the standards of objectivity required of an Inquirer. The following examples are illustrative:

 

i. He frequently referred to what he would have done or gave the impression that he was referring to what he would have done; rather than assessing the actions of the Registered Person against the standard expected of a reasonably competent Architect. On occasion when clarification was sought, he stated that he was referring to the standard of a reasonably competent Architect but appeared to find it difficult to articulate if there were alternative approaches upon which reasonable Architects could disagree. It was unclear by the conclusion of his evidence whether he was inviting the Committee to conclude that there was only one reasonable approach.

 

ii. He accepted the Local Authority’s opinion that the ’15 items’ required Listed Building Consent solely because that was the conclusion that the Local Authority had come to. His starting position was that the Conservation Officer was right. He appeared to give little or no credence to the professional opinion of the Registered Person and reluctantly agreed during cross-examination that many of the ’15 items’ did not require Listed Building Consent or may not have required Listed Building Consent. The Committee concluded that most (if not all) of these concessions could and should have been made at the time the Inquirer was preparing his supplementary report.

 

iii. Despite the significant concessions made in respect of the ’15 items’ he refused to accept that his original position amounted to an error and maintained that he was providing ‘clarification’.

 

iv. He referred the Committee to the Historic England Advice Note 16 – Listed Building Consent which was published in June 2021. It was accepted during the hearing that the guidance was not available during the relevant period, but the Inquirer informed the Committee that it was still relevant in determining which works would require Listed Building Consent as in his view the position would not have changed significantly. In his original report, the Inquirer referred to the Annex to the guidance. He stated that the Annex provides a detailed list of works that are exempt from Listed Building Consent but had to concede during his oral evidence that the guidance refers to works that may require Listed Building Consent. The Committee concluded that this was an example of the Inquirer’s tendency to be definitive when it would have been more accurate to acknowledge that the guidance permitted the exercise of discretion.

 

  1. The issues referred to above did not cause the Committee to reject the Inquirer’s evidence in its entirety. There were many aspects of his evidence which the Committee accepted. This included his opinions that it would be prudent for an Architect to avoid risky strategies given that works that may be characterised as maintenance is subjective and that early engagement and having a good relationship with the Conservation Officer was likely to result in a more favourable outcome. However, the Committee proceeded with caution, particularly with regard to the rationale that informed the Inquirer’s opinion.

 

  1. The Committee noted that there was very little meaningful dispute between the Referrer and the Registered Person. The Committee found the Referrer to be a credible and reliable witness. There was no evidence that he bore any animus towards the Registered Person and having agreed a financial settlement he would have been content for the complaint to be closed. The Registered Person was also credible and reliable. He did not overstate his evidence. He candidly accepted that he did not inform the Referrer of all the key events that occurred on-site.

 

  1. The key issue in this case primarily related to the Registered Person’s exercise of professional judgment. The Registered Person accepted that his advice altered from running the application and works concurrently, to carrying out certain renovation works first and then submitting an application later. In his representations to ARB, he stated:

 

“The time scale was the key concern and to have any chance of meeting the 13th July target I suggested the application of listed building consent be made following completion of the renovation works. We could not see any other way of meeting the time scale… The original plan in April 2018 was the intention but this was compromised by the compressed time scale.”

 

The Registered Person reiterated this during his oral evidence.

 

  1. The Committee accepted the Registered Person’s evidence that, in accordance with his revised plan, there was no intention to do any work on the property which required Listed Building Consent until after the wedding in July 2019. He intended to carry out the renovation work to make the property habitable in time for the wedding. He stated during his oral evidence that he was aware that some of the preparatory work could end up being a waste of time and money if the design scheme (which included moving the living area and kitchen to the first floor and the bedrooms to the ground floor) was not approved by the Local Authority. He wanted the renovation work to be completed before submitting any Pre-Application for Listed Building Consent because he was aware that if a conservation officer saw the property whilst it was in a state of disarray they would be alarmed, and this would delay the project.

 

  1. The Registered Person had a duty to advise the Referrer and his wife regarding Listed Building Consent. The Referrer and his wife were out of the country during the early stages of the project and were entitled to rely on the Registered Person’s expertise. The Committee acknowledged that the safest option would have been for the Registered Person to apply for Listed Building Consent before the commencement of any work on the property, as he originally intended. However, the Committee concluded that that was not the only reasonable option. To the extent that the Inquirer invited the Committee to conclude that no work should have been undertaken prior to obtaining Listed Building Consent, the Committee did not accept his opinion. The Registered Person’s revised plan to undertake the renovation work which did not require Listed Building Consent may have been an acceptable approach. However, the Referrer and his wife should have been informed that this approach carried several risks. The Committee considered that the foreseeable risks included: (i) the renovation work which did not require Listed Building Consent may impinge on work that did require Listed Building Consent and at that stage the Conservation Officer would have to be notified; (ii) there was a degree of uncertainty with regard to whether some of the renovation works required Listed Building Consent and what a conservation officer would decide on this issue would be dependent on their subjective opinion; (iii) to ensure a clear demarcation between renovation work that did not require Listed Building Consent and work that did require such consent would entail a well-defined schedule of works and tightly controlled monitoring to avoid errors being made; (iv) a Conservation Officer may have turned up at the property having been notified from internal or independent sources that work was being carried out at the property; (v) a Conservation Officer, having been made aware of that changes were being made to the property, might direct that works already underway or completed would need to be undone or reinstated. Any such direction could cause additional further delay and would inevitably incur additional costs for which the Referrer and his wife would be liable.

 

  1. Although the Registered Person, the Referrer, and his wife were interviewed under caution as a consequence of the Local Authorities’ intervention the Committee did not consider this to be evidence that the Registered Person provided inadequate advice. The Referrer knew that the property was a Grade II listed building and needed Listed Building Consent in order to complete the project. He was also aware that failing to obtain Listing Building Consent (when consent is required) may constitute a criminal offence. The Committee determined that in the circumstances of this case, it was the risk factors identified by the Committee (as set out in paragraph 72 above) which amounted to a failure to properly advise his clients about Listed Building Consent.  It might well be that if the Registered Person had properly advised the Referrer and his wife of the inherent risks to his proposed approach the discussion may have turned to what might happen if the Local Authority commenced an investigation. In those circumstances, the Registered Person would then would have been under a positive duty to advise the Referrer and his wife that they may all (the clients, contractor, and the Registered Person) become subject to a criminal investigation. However, the Committee concluded that the essence of the ARB’s case is captured by the primary failings in paragraph 72.

 

  1. As it turned out some of the events referred to in paragraph 72 occurred including an unexpected visit from a Local Authority. As a consequence, in addition to the “stop order,” the Local Authority conducted an investigation. Activities undertaken during the renovation included: (i) the removal of a wall and floorboards to allow for the reinforcement of a floor; (ii) the opening of a wall in order to create a window (in error the Registered Person had acceded to the request of the contractor to form the opening); and (iii) dry lining was installed which to the Registered Person’s surprise the Local Authority does not permit in listed buildings.  Following the investigation, the Local Authority did not give Listed Building Consent for these items. In respect of (i) the bathroom wall had to be reinstated, (ii) the hole in the wall had to be filled, and (iii) the dry lining had to be removed.

 

  1. There was no evidence before the Committee that the Registered Person advised the Referrer and his wife of the consequences of the July 2019 deadline and the risks referred to in paragraph 72 above. Nor was there any evidence that the Registered Person took appropriate steps to mitigate these risks. There was also no evidence that the Registered Person kept the Referrer and his wife up to date with regard to issues likely to have an impact on the quality and cost of the project. It is to this extent that the Registered Person’s advice with regard to Listed Building Consent was inadequate.

 

  1. For these reasons, particular 1 was found proved.

 

Particular 2 – Found Not Proved

 

  1. The Committee noted that the ARB’s case was predicated on the Inquirer’s opinion that Listed Building Consent was required prior to the commencement of any building works on a Listed Building.

 

  1. As stated above, the Committee did not accept this aspect of the Inquirer’s evidence. The Inquirer acknowledged that work carried out for the purpose of maintenance could be undertaken without Listed Building Consent and conceded during cross-examination that many of the ‘15 items’ did not require consent or may not have required consent. Therefore, the Committee concluded that it was possible (subject to advising the Referrer and his wife of the risks) to split the schedule of works into those that required Listed Building Consent and those that did not. As Particular 2 does not recognise this distinction the Committee concluded that there was no proper basis upon which it could be found proved.

 

  1. In any event, the Committee concluded that Particular 1 fully encapsulates the Registered Person’s wrongdoing with regard to the advice he provided in relation to Listed Building Consent.

 

  1. For these reasons, Particular 2 was found not proved.

 

Particular 3 – Found Not Proved (Limb 1); Found Proved by admission (Limb 2)

 

  1. As stated above, the Registered Person admitted the second Limb of Particular 1; he did not admit Limb 1.

 

  1. The Presenter did not make any positive submissions to the effect that the Registered Person failed to deal with the Referrer’s complaint adequately. However, the Presenter made it clear that he was not instructed to make an application to withdraw Limb 1.

 

  1. The Referrer made a formal complaint to the Registered Person in a letter, dated 19 April 2021. The Registered Person acknowledged the complaint on 20 May 2021 and provided a more detailed response on 12 July 2021. Although the Referrer was not satisfied that this response provided him with the information he required, there was further correspondence between the parties including an email in which the Registered Person provided a breakdown of some of the abortive costs. Leaving aside the timeliness of the Registered Person’s responses he eventually provided some of the additional information the Referrer was seeking and ultimately the parties reached a settlement.

 

  1. As no evidence was led before the Committee to the effect that the content of the Registered Person’s response was inadequate the Committee concluded there was no proper basis upon which Limb 1 could be found proved.

 

  1. As a consequence, Limb 1 was found not proved.

 

Particular 4 – Found Proved

 

  1. There was no dispute between the parties that the Registered Person had a professional obligation to provide the Referrer with written terms of engagement.

 

  1. The Registered Person invited the Committee to conclude that his fee proposal and the document titled “RIBA – Explaining an Architect’s Services” constituted a contract. However, the Committee concluded that to the extent that the documents were meant to represent the terms of engagement, they were wholly inadequate.

 

  1. Standard 4.4 of the Code states that an Architect is expected to ensure that they enter into a written agreement with the client which adequately covers a range of matters. The matters are listed in Standard 4.4. The documents the Registered Person provided to the Referrer made it clear who the contracting parties were, the scope of the work, and the fee that would be incurred but none of the other matters set out in Standard 4.4 were evident. The matters that were absent from the documentation included: (i) who would be responsible for what; (ii) any constraints or limitations on the responsibilities of the parties; (iii) the powers for suspension or termination of the agreement; (iv) the possession of adequate and appropriate insurance cover; (v) the existence of a complaints handling procedure which was available on request; and (vi) the fact that the Registered Member was an ARB member and was subject to the Code. No good reason for these omissions was provided.

 

  1. The Registered Person informed the Committee that the Referrer knew that he had Professional Indemnity Insurance and he indicated that the Referrer would have been provided with the complaints procedure if he had asked for it. The Committee did not accept that these submissions provided any justification. The Referrer was entitled to be informed of the terms of agreement from the outset and prior to the Registered Person undertaking any professional work. The Registered Person could not escape culpability by relying on the Referrer to acquire information through his own endeavours.

 

  1. The Committee concluded that the failure to provide adequate terms of engagement was a failure by the Registered Person to fulfil his requirements under the Code. Although the Registered Person made no formal admissions in respect of Particular 4 the Committee noted that the Registered Person had subsequently taken steps to ensure that his terms of engagement comply with the expectations as set out in Standard 4.4. The Committee took this into account in concluding that the Referrer was aware that the documents he provided to the Referrer did not meet the requirements of Standard 4.4.

 

  1. For these reasons, Particular 4 was found proved.

 

Decision on Unacceptable Professional Conduct (UPC)

The Committee’s Approach

 

  1. The LQC advised that whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment and there is no burden or standard of proof.

 

  1. UPC is defined as conduct which falls short of the standard required of a registered person. In reaching its findings on UPC, the Committee recognised 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. Architects are expected to be guided by the spirit of the Code as well as its express terms.

 

  1. In deciding whether the facts found proved amount to UPC the Committee had regard to Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin). It bore in mind in reaching its decision that for a finding of UPC 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. The Committee also took into account the observation made by Mr Justice Kerr in Shaw v The General Osteopathic Council [2015] EWHC 2721 (Admin) that although the conduct in question must be sufficiently serious, it does not need to be of such gravity that imposing an admonishment would be too lenient.

 

Findings of UPC

  1. The Committee found at the fact-finding stage that the Registered Person provided inadequate advice to the Referrer with regard to Listed Building Consent, failed to respond to the Referrer’s complaint within the timeframes as outlined in Standard 10 and failed to provide the Referrer with terms and conditions which met the expectations set out in Standard 4.4.

 

  1. The Committee concluded that the factual findings facts and the corresponding breaches of the Code are sufficiently serious to adversely impact both on the reputation of the Registered Person and the profession generally. In all the circumstances and for the reasons set out below, the Committee finds that the Registered Person’s conduct amounts to UPC in respect of Particulars 1, 3, and 4 both individually and cumulatively.

 

Listed Building Consent

 

  1. In accordance with Standard 6.1 of the Code, an Architect has a professional duty to carry out their work with skill and care in accordance with the terms of their engagement. The advice provided by the Registered Person in respect of Listed Building Consent was not given with the appropriate skill and care required of an Architect and was a failure to fulfil one of his key duties as Contract Administrator. The Registered Person also breached Standard 6.3 of the Code which states that an Architect is expected to keep their client informed of the progress of work they undertake and of any issue which may significantly affect its quality or cost.

 

  1. It is fundamental to professional conduct and professional work as a registered Architect that adequate advice is provided prior to any proposed work if permissions are required or likely to be required as part of a project. It is particularly important when the consequences for failing to obtain the required consent can result in criminal prosecution and has the potential to cause damage to a building of historic value.

 

  1. The Registered Person failed to advise the Referrer of the risks associated with his revised plan to renovate the property by July 2019. Although the failings relate to a single instruction, they represent a serious departure from the high standards expected of registered Architects because the potential consequences were so serious. The foreseeable consequences included more time and money (including reinstatement costs and consequential delay), stress and inconvenience, and a prolonged period of uncertainty. As the Referrer and his wife were not informed of the risks associated with the revised plan, they were unable to make an informed choice about whether to proceed with the project at that time or wait until after the wedding. The Referrer and his wife left the administration of the project in the hands of the Registered Person and were entitled to expect him to adhere to the high standards required of him.

 

  1. The Committee, in concluding that the Registered Person’s conduct fell significantly and materially below the standard expected of a registered Architect, took into account the following:

 

i. Some of the work had to be reinstated;

ii. Reinstatement resulted in additional costs to the Referrer;

iii. It caused a significant delay to the works of at least 6 months; and

iv. The eventually approved scheme differed considerably from that which was originally proposed by the Registered Person.

 

  1. The Committee also took into account the wider public interest, which includes the maintenance of public trust and confidence and the declaring and upholding of professional standards. The Committee concluded that if there was no finding of UPC it would undermine rather than uphold public trust and confidence in the professional standards of Architects.

 

Timeframes

 

  1. The Registered Person had a professional obligation to provide timely responses to the Referrer’s complaint. His failure to do so breached Standard 10.2 of the Code and fell far short of the responsibilities of a registered Architect. The Referrer was entitled to expect that the Registered Person would respond to his complaints and concerns professionally. A client should have confidence that a registered Architect will address issues in a timely fashion and within the expected timeframes set out in the Code.

 

  1. The failure to respond to the Referrer’s complaint timeously left the Referrer with no certainty as to whether the complaint was being dealt with. Nor did the Referrer know whether he would receive the information necessary to calculate his losses.

 

  1. For the same reasons, as stated in paragraph 101 above, the Committee concluded that the wider public interest required a finding of UPC.

 

 

Terms of Engagement

 

  1. The Registered Person has a duty to be aware of and to follow the terms of the Code of his regulatory body. Standard 4.4 sets out clearly what the terms of engagement are expected to include. Compliance with these expectations protects the client, the Architect, and the public and is not onerous or difficult to achieve. The failure to provide adequate terms of engagement is serious.

 

  1. For the same reasons, as stated in paragraph 101 above, the Committee concluded that the wider public interest required a finding of UPC.

 

Decision on Sanction

The Committee’s Approach

 

  1. The Committee took into account the submissions made by the Presenter and those made by Mr Shrimplin.

 

  1. The Presenter did not make a “bid” for any particular sanction. He acknowledged that there is no requirement to impose a sanction in every case. However, he submitted that there are no exceptional circumstances in this case which would justify imposing no sanction.

 

  1. Mr Shrimplin’s primary submission was that no sanction should be imposed. He reminded the Committee that the Referrer, having reached a financial settlement with the Registered Person, was content for his complaint to be closed. Mr Shrimplin submitted that this amounts to exceptional circumstances. He further submitted that no sanction was required to protect the public or uphold confidence in the profession. Mr Shrimplin, in the event that the Committee rejected his primary submission, invited the Committee to conclude that there was no need to impose any sanction more onerous than a Reprimand. He submitted that all the factors, listed in the Sanctions Guidance which indicate that a Reprimand may be the appropriate sanction, apply to this case.

 

  1. The Committee took into account the Sanctions Guidance. The Committee was mindful that the purpose of any sanction is not to punish the Architect but to protect the public and the wider public interest. The public interest includes upholding public confidence in the profession and declaring and upholding proper standards of conduct and competence.
  2. The Committee applied the principle of proportionality by taking into account the aggravating and mitigating factors, weighing the Registered Person’s interests with the public interest, and considering the available sanctions in ascending order of severity.

 

Decision

  1. The Committee noted that the factual findings in relation to advice in respect of Listed Buildings Consent are confined to one project and a single client. The Committee also noted that the Registered Person wanted the renovation work to be completed before submitting any Pre-Application for Listed Building Consent to avoid a conservation officer seeing the property whilst it was in a state of disarray as this was likely to cause delay to the project. This strategy was raised by the Registered Person at the site meeting which took place on 31 December 2018 and the ‘stop order’ was issued by the Local Authority on 1 March 2019. Therefore, the inadequate advice relating to Listed Building Consent persisted for no longer than 2 months at most. On one view these factors (leaving aside the failure to deal with the Referrer’s complaint in a timely fashion and the finding in relation to the Terms of Engagement) may be considered to be isolated within the context of an otherwise unblemished career. However, the Committee took the view that if the Local Authority had not intervened when it did it is likely that the high-risk strategy that the Registered Person adopted would have continued until the plan was fully executed. In these circumstances, the Committee concluded that the Registered Person could not be given any credit for the limited duration that the Referrer was exposed to unwarranted risk of harm. Whilst noting that the inadequate advice persisted for a relatively short period the Committee concluded that this could not be properly characterised as a mitigating factor.

 

  1. The Committee was mindful that the Referrer would have been content for these proceedings to be discontinued. However, the Committee did not accept Mr Shrimplin’s submission that this amounted to a mitigating factor. The ARB has a statutory obligation to protect the public and uphold standards and relies on the evidence of witnesses to present cases to the Professional Conduct Committee. However, the objectives of the ARB and its witnesses will not necessarily be aligned.

 

  1. The Committee concluded that the mitigating factors are as follows:

 

i. The Registered Person has demonstrated some evidence of insight and remorse. The Committee noted that the inadequate advice occurred within the context of the Registered Person trying to fulfil the Referrer’s expectations. The Registered Person had some understanding of what went wrong as he acknowledged that he should have acted differently, and it was clear during his oral evidence that the consequences of his actions had had a profound effect on him. In these circumstances, the Committee concluded that the conduct which led to the findings of UPC were unlikely to be repeated. In reaching this conclusion the Committee noted that the Registered Person was entitled to challenge the ARB’s case and it would be wrong in principle to equate his denials as an absence of insight.

 

ii. The Committee was provided with documentary evidence which demonstrated that the Registered Person had taken steps to ensure that his terms of engagement now comply with the expectations as set out in Standard 4.4.

 

iii. The Registered Person has no previous professional conduct history.

 

  1. The Committee concluded that the only aggravating factor was that the Registered Person’s conduct and behaviour presented a substantial risk of harm to the Referrer and his wife.

 

  1. The Committee first considered whether to conclude the case by taking no action on the Registered Person’s registration. In doing so, the Committee paid particular attention to paragraph 6.1.2 of the Sanctions Guidance which states:

 

In rare cases the PCC may conclude, having had regard to all the circumstances, that the level of seriousness of the architect’s conduct or incompetence is so low that it would be unfair or disproportionate to impose a sanction. Where the PCC has determined a sanction is not required, it is particularly important that it is clear in its written reasons as to the exceptional circumstances that justified imposing no sanction.”

 

  1. As stated in paragraph 113 above, the Committee did not take the view that the Referrer’s request for these proceedings to be discontinued amounted to a mitigating factor and for the same reasons concluded that this particular feature did not amount to exceptional circumstances. Exceptional circumstances are unusual, special, or uncommon. The Committee determined that it was not uncommon for a witness to focus on their own objectives rather than the wider issues of public protection and the wider public interest. In these circumstances, the Committee concluded that the Referrer’s request for discontinuance did not amount to exceptional circumstances. To conclude otherwise, would serve to undermine rather than uphold the Committee’s regulatory duty to protect the public, maintain public confidence in the profession, and uphold proper professional standards and conduct for members of the profession.

 

  1. The Committee determined that as there are no exceptional circumstances in this case, the finding of UPC alone would not be sufficient, proportionate, or in the public interest. In reaching this conclusion the Committee was mindful that the Registered Person’s failings diminish both his reputation and that of the profession generally. The Committee therefore concluded that the Registered Person’s conduct was sufficiently serious for it to require the imposition of a sanction.

 

  1. The Committee considered whether to impose a Reprimand. The Committee took into account the non-exhaustive factors as set out in paragraph 6.2.2 of the Sanctions Guidance which indicates when a Reprimand may be the appropriate and proportionate sanction.

 

  1. Although the Referrer and his wife were exposed to unwarranted risk of harm there was no evidence before the Committee that the wider public had been seriously affected by his conduct. There was some evidence of genuine insight and remorse and where it was possible for the Registered Person to take corrective action he had done so. The Registered Person has no previous disciplinary history. It was also clear that although his advice with regard to the Listed Building Consent had been inadequate his conduct had been motivated by good intentions; there was no deliberate intent to cause harm or expose the Referrer and his wife to the risk of harm. The Committee, having carefully considered these features, determined that a Reprimand would be an appropriate and proportionate disciplinary response.

 

  1. Before reaching a conclusive decision, the Committee considered whether imposing a Penalty Order would be appropriate. The Committee considered whether the imposition of a Penalty Order would serve as an effective reinforcement of the importance of providing adequate advice to clients, responding to complaints in accordance with Standard 10 of the Code, and ensuring that clients are provided with written terms of engagement which comply with Standard 4.4 of the Code. However, the Committee determined that, in the circumstances of this case, a financial penalty would add nothing of materiality to the significance of public censure in the form of a Reprimand. Further, the Registered Person did not financially benefit from his conduct and in the view of the Committee, the seriousness of his failings could be adequately addressed by the imposition of a Reprimand.

 

  1. Accordingly, the Committee was satisfied that the Registered Person should be reprimanded for his conduct. The Reprimand will remain on the Registered Person’s record and will be published on ARB’s website for one year from the date of this determination.