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Mr Malcolm Iredale

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Malcolm Iredale 057945I

Held on 28, 29 and 30 October 2020

Remote Hearing
———-
Present

Sean Hammond (PCC Chair)
Roger Wilson (PCC Architect Member)
Jules Griffiths (PCC Lay Member)
———–

In this case, ARB was represented by Ms Sheridan of Kingsley Napley LLP.
Mr Iredale attended the hearing and was legally represented by Mr Collett, Counsel instructed by Mills and Reeve LLP.

The Professional Conduct Committee (“PCC”) found Mr Iredale guilty of Unacceptable Professional Conduct (“UPC”) in that he:

(1) Did not enter into a written agreement with the client which adequately covered the terms of engagement contrary to Standard 4.4 of the Architects Code.

and that by doing so, he acted in breach of Standard 4.4 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is a reprimand.

The Allegation

1. The allegation made against Mr Iredale (“the Respondent”) is that he is guilty of Unacceptable Professional Conduct (“UPC”).

2. The Architects Registration Board (“ARB”) relies upon the following particulars in support of the allegation:

i. The Architect did not enter into a written agreement with the client which adequately covered the terms of engagement contrary to standard 4.4 of the Architects Code;

ii. Did not adequately consult the client on the integration of the flat roof prior to the submission of planning.

Background

3. This case arises following a complaint to ARB by the Complainant on 10 October 2019.

4. The Respondent is a registered architect at Carrock Design & Build Ltd.

5. The Complainant appointed the Respondent to prepare new drawing plans for the conversion of a derelict barn into living accommodation. In 2014, the previous owner of the barn had obtained planning permission to convert it into three separate dwellings but the Complainant required the assistance of an architect to amend those plans to a format he and his family were happy with. An aspect of this redesign included the reinstatement of a roof on part of the property known as Barn C in the previous/existing planning permission drawings.

6. On 29 October 2018, the Complainant’s wife emailed the Respondent to canvass whether he would be interested in taking on the project. Within that email, she explained they planned to develop two out of the three dwellings at this stage and attached a copy of the previous/existing planning permission drawings. She stated a key part of the redesign would be to:

“reinstate the roof area on Barn C, which is currently planned as a ‘walled garden’. We found archive plans that show that this was a ‘Cutting Room” and, in order to preserve the integrity of the building, we would like to re-instate the roof… The informal feedback that we have received has been positive for this as it would re-instate what was originally there.”

7. On 19 November 2018, the Respondent met with the Complainant’s wife at the property to discuss the project.

8. The Respondent subsequently confirmed the details of that discussion in a Letter of Appointment dated 19 November 2018 headed ‘Design Build Proposal – Barn conversions at… Cumbria’.

9. Within that letter, the Respondent advised that he was to provide a measured building survey and designs to comprehensively redesign the existing planning approval. The Letter of Appointment set out various stages of the design phase and the work that the Respondent would undertake. In particular:

“Stage 2 – Proposed design

• design sketches of the new plans – Obtain client approvals
• Finalise sketch design plans and elevations as required
• Submit planning applications to local authority.”

10. The Respondent confirmed his fee would be charged at £60 per hour and invited the Complainant to sign the Letter of Appointment if he wished to appoint the Respondent.

11. The Complainant proceeded with the appointment on those terms.

12. No further terms of engagement were provided by the Respondent for the remainder of his involvement with the project.

13. The Respondent proceeded to redesign the plans and the majority of discussions with the Complainant and his wife took place via email. A pre-emptory planning application was made to the Lake District National Park Authority (“the local planning authority”) and the planners made a number of comments which were discussed with the Complainant and his wife. However, although there were design discussions, no further details of the roof structure on the part of the property formerly known as Barn C (now known as House 1) were discussed.

14. There was a telephone conversation between the Complainant and the Respondent prior to the submission of the planning application, however the content of that conversation is disputed.

15. There were no further discussions about the design of the roof structure of House 1 prior to the planning application being submitted to the local planning authority.

16. On 8 April 2019, the Respondent sent the Complainant an invoice for £3000 for the design and completion of the planning documents.

17. On 9 May 2019, the application was submitted to the local planning authority. However, on 10 May 2019, the application was returned because it was incomplete; a new bat survey was required, the application fee was incorrect, a Heritage Statement had been omitted / was required and the location plan was incorrect. The local planning authority also sought clarification on aspects of the previous building work.

18. The Respondent sent the Complainant correspondence addressing, in turn, each of the deficiencies raised by the local planning authority.

19. On 3 June 2019, an amended application was submitted to the local planning authority. The amended application included the same plans as submitted by the Respondent on 9 May 2019. These plans did not include a South Elevation Plan or a Roof Plan.

20. The application was subsequently approved and planning permission for the works was granted on 17 July 2019.

21. On 22 July 2019, the Respondent sent a final invoice of £967.50 for work on the two designs and completion of the planning documents.

22. Following receipt of planning permission, the Complainant attempted to progress the works. In August 2019, the Complainant’s structural engineer raised a query in relation to the roof design of House 1. This caused the Complainant’s wife to send an email to the Respondent on 5 August 2019 stating:

“We’re needing some clarification on the south elevation roof (over the kitchen) for House 1… – we are wanting quotes from builders regarding the roof but, as the submitted plans don’t show the south elevation they are unable to give us an accurate figure. Please can you supply a roof plan and south elevation for House 1.”

23. The Respondent informed the Complainant that his design for the roof structure over the kitchen at the South Elevation of House 1 incorporated a small area of flat roof of approximately 14 feet by 9 feet. The Respondent stated that this area of flat roof would not be visible from ground level and maintained the step in the ridge line for the Eastern Elevation established in the drawings for the previous planning approval, which he was anxious not to breach.

24. On 13 August 2019, the Respondent sent an email to the Complainant’s wife attaching a 3D drawing of the roof design. He stated:

“Here is a quick sketch of how the roof may work… The flat roof area avoids any hidden box gutters that would be difficult to clean. I expect this could be lead roll or cheaper maybe EPDM membrane. You have the option of extending the top small gable to the ridge centre if your neighbours agree. It would need minor amendment to planning though. There would be a cathedral ceiling and feature central truss over the kitchen area.”

25. On 19 August 2019, the Complainant telephoned the Respondent outlining his concerns about the incorporation of a section of flat roof into the design. He emailed the Respondent the same day and stated:

“We would be most grateful if you could redesign the roof structure (in line with the original roof structure – as shown by remaining trusses) at the southern end of the property as requested in order to eliminate the need for a section of flat roof…”

26. On 20 August 2019, the Respondent provided the Complainant with a revised design for the roof structure over House 1 with a pitched as opposed to flat roof. The Respondent provided the Complainant with revised East and West Elevation drawings, a draft letter to send to the local planning authority requesting minor amendment to the approved plans and a 3D drawing of the of the revised design.

27. On 24 August 2019, the Complainant asked the Respondent to provide a further 3D drawing of the design so that he could better understand what had been approved by the local planning authority.

28. On 27 August 2019, following receipt of the 3D drawing and discussions with his structural engineer, the Complainant requested further plans and drawings. The Respondent replied:

“No this is not clear enough for me to progress plans any further.
If you wish us to continue with you on this project, we need to meet and discuss the way forward. If the engineer is proposing these design changes, we need to meet with them as well…
To be clear, we were originally commissioned to achieve planning permission for you which we have successfully done. Further detailed design work or construction drawings would be chargeable and we need to discuss this moving forward…”

29. In the email correspondence that followed a dispute arose between the Complainant and the Respondent. The Complainant reiterated that the design of the flat roof was not shown in any of the elevations or drawings previously supplied and so client approval had not been sought prior to the submission of the planning application. The Respondent maintained his position that the Complainant had been given ample opportunity to approve the plans on a number of occasions prior to the submission of the planning application.

30. The Complainant appointed a new architect to re-design the roof structure over House 1. This was subsequently approved by the local planning authority as a Minor Amendment.

31. On 10 October 2019, the Complainant submitted a complaint about the Respondent to ARB.

Discussions and Reasoning:

32. At the outset of the hearing the Respondent admitted UPC in respect of particular 2.i of the allegation.

33. In reaching its decisions, the Committee has carefully considered the following documentary evidence:

(i) The Report of ARB’s Solicitor dated 16 April 2020;
(ii) The 85 pages of documents exhibited by ARB’s solicitor;
(iii) The Particulars of Defence of the Respondent dated 12 October 2020;
(iv) The Respondent’s witness statement dated 12 October 2020; and
(v) The 3 pages of documents exhibited by the Respondent.

34. The Committee also heard oral evidence from:

(i) The Complainant; and
(ii) The Respondent.

35. The Committee found the Complainant to be a credible, articulate witness who gave a measured account of his professional relationship with the Respondent. The Committee also found the Respondent to be a credible and reliable witness. On the evidence given, the Committee had no reason to doubt his integrity and was of the view that at the material time, he was doing his best to assist his clients, the Complainant and his wife.

36. The Committee has accepted the legal advice given by the Legally Qualified Chair which is a matter of record. It has had regard to the fact that the burden of proving the facts is on ARB and that the civil standard applies, namely the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgement to which no burden or standard of proof applies irrespective of the Respondent’s admission.

37. The Committee heard submissions from Ms Sheridan on behalf of ARB and Mr Collett on behalf of the Respondent.

38. The Committee has had regard to the guidance published by ARB and to the content of the Architects Code: Standards of Conduct and Practice 2017. (“the Code”).

Findings of Fact and UPC

39. The Committee makes the following findings of fact.

Particular 2.i of the Allegation (Proved)

40. In reaching this decision, the Committee took into consideration the Respondent’s admission to this part of the allegation.

41. The Committee also had regard to the content of the Respondent’s Letter of Appointment dated 19 November 2018 headed ‘Design Build Proposal – Barn conversions at… Cumbria’. A copy of this letter was included in the documents exhibited to the report of ARB’s solicitor. In their oral evidence, both the Complainant and the Respondent confirmed that this letter formed the terms of engagement which were relied upon for the project.

42. The Committee noted the Respondent’s evidence that the Letter of Appointment had been drafted with the assistance of a solicitor over 16 years ago and that it had been periodically updated to take account of legislative changes. The Respondent told the Committee that this was the standard written agreement that he provided to all of his clients. He stated that the majority of his clients instruct him to undertake relatively modest projects costing between £20,000 and £50,000 and that he believed the content of the Letter of Appointment was adequate.

43. The Committee is satisfied that the Respondent’s Letter of Appointment dated 19 November 2018 did not include information which adequately dealt with:

(i) The provisions for suspension or termination of the agreement, including any legal rights of cancellation;
(ii) A statement that the Architect has adequate and appropriate insurance cover as specified by ARB;
(iii) The existence of any Alternative Dispute Resolution schemes that the contract is subject to and how they might be accessed;
(iv) Details of any complaints-handling procedure;
(v) Confirmation that the Architect was registered with the Architects Registration Board and that he is subject to the Architect’s Code.

44. The Committee considered Standard 4.4 of the Code which states:

“4.4 You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:

• the contracting parties;
• the scope of the work:
• the fee or method of calculating it;
• who will be responsible for what;
• any constraints or limitations on the responsibilities of the parties;
• the provisions for suspension or termination of the agreement;
• a statement that you have adequate and appropriate insurance cover as specified by the Board;
• the existence of any Alternative Dispute Resolution schemes that the contract is subject to and how they might be accessed;
• that you have a complaints-handling procedure available on request;
• that you are registered with the Architects Registration Board and that you are subject to this code.”

45. It is the Architect’s responsibility to ensure that the terms of engagement that he uses are compliant with the requirements of the Code. In this case, the Committee is satisfied that the Respondent’s Letter of Appointment dated 19 November 2018 does not fully comply with those requirements. The Committee therefore finds that the Respondent has breached Standard 4.4 of the Code and that particular 2.i of the allegation is therefore proved.

Particular 2.ii of the Allegation (Proved)

46. In reaching this decision, the Committee considered the content of the email sent on 29 October 2018 by the Complainant’s wife to the Respondent to canvass whether he would be interested in taking on the project. The Committee noted the references to reinstating the roof area on House 1, preserving the integrity of the building and reinstating what was originally there. The Committee noted that in their evidence, both the Complainant and the Respondent stated that the remains of an ‘A – shaped’ truss from a previous roof structure was still present. Both witnesses accepted that this truss appeared to be an original truss from the 1890s and was consistent with other trusses within the barn, although the Respondent noted that it was at a lower level. The Committee had regard to the Respondent’s evidence when cross-examined by Ms Sheridan during which he acknowledged that save for the flat roof containing the grating over the water collector, all of the other roofs on the building were pitched. The Respondent also acknowledged that a lay person, such as the Complainant, seeing the existing ‘A – shaped’ truss may well have assumed that the original roof structure of House 1 was also pitched. The Committee is satisfied that this is how the Complainant’s expectation of a pitched roof design to reinstate what was originally there arose.

47. The Committee accepted the Respondent’s evidence that in the absence of seeing the archived plans, it was impossible to know what the original roof structure over House 1 had been and that there are examples of flat roofs on local buildings from the same period. However, the Committee is satisfied on the available evidence, that the Respondent never communicated this to the Complainant or his wife.

48. The Committee considered the Respondent’s evidence in relation to the site meeting with the Complainant’s wife on 19 November 2018. The Respondent told the Committee that in his professional opinion, changing the stepped ridge line established in the previous planning approval and thereby increasing the volume of the roof, may have caused the local planning authority to reject the application. The Committee accepted the Respondent’s evidence that he made this point to the Complainant’s wife. However, having regard to the exhibited emails and the evidence given by the Complainant, the Committee do not accept that as a result of this site meeting the Complainant or his wife would have understood that the design for the roof structure would incorporate an area of flat roof, nor is there any evidence that the subject was discussed by the parties.

49. In the Committee’s view, there is no evidence that the Respondent adequately consulted with the Complainant in relation to the integration of the flat roof into the design prior to the submission of planning approval. The Committee carefully considered the drawings provided by the Respondent but did not accept, in the absence of an annotation on those drawings or the provision of a roof plan, that it was reasonable to expect the Complainant to have understood that there was an area of flat roof over the kitchen area of House 1.

50. The Committee noted that the Complainant and his wife were active clients who were closely involved in commenting on the designs provided by the Respondent in relation to many of the proposed design features. The Committee was satisfied from the reaction of the Complainant and his wife in August 2019 when it became clear to them that the Respondent’s design did in fact include an area of flat roof, that they would have expressed their disapproval of the design had they been adequately consulted prior to the submission of planning approval.

51. The Committee was of the view that this lack of consultation by the Respondent arose because he genuinely believed that in the context of the application as a whole, this aspect of the design was not significant. The Committee accepted his evidence that this area of flat roof would not have affected the aesthetic of the building as it would not have been visible from ground level. Furthermore, the Committee accepted the Respondent’s explanation of why in his professional opinion it was the best design solution as it would avoid a boxed gutter against a party wall that would only be accessible from the neighbouring property. The Committee also accepted that at all times, the Respondent was using his best endeavours and professional judgement to ensure that the planning application was granted.

52. For the above reasons, the Committee finds that the facts of particular 2.ii of the allegation proved.

53. The Committee next considered Standard 6.1 of the Code which states:

“6.1 You are expected to carry out your work with skill and care and in
accordance with the terms of your engagement.”

54. The Committee determined that the Respondent had not breached this Standard. The Committee was satisfied that the Respondent had carried out his work with the level of skill expected of a registered architect. There was no criticism of his designs and the Committee noted that the planning application was successful. This application involved a significant re-design of the previous planning approval. The Committee was also satisfied that overall, the Respondent had carried out his work with the appropriate level of care. Clearly, there had been a failure on the part of the Respondent to adequately consult the Complainant and his wife about the integration of the flat roof, but having carefully considered the circumstances of how this failure in respect of one aspect of the project came about, the Committee was not satisfied that the Respondent’s conduct fell below that required by Standard 6.1 of the Code. It was simply a matter of misunderstanding.

Findings in relation to UPC

55. Having found the facts of particulars 2.i and 2.ii of the allegation proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC.

56. UPC is defined in section 14(1)(a) of the Architects Act 1997 as conduct which falls short of the standard required of an architect.

57. In reaching its findings, the Committee has carefully considered all of the evidence presented to it, the submissions made by Ms Sheridan and Mr Collett and has accepted the advice from the Legally Qualified Chair.

58. 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 result in 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.

59. The Committee reminds itself that a finding of UPC is a matter for its own independent judgment and that there is no burden or standard of proof. The Committee will take into consideration the Respondent’s admission that he is guilty of UPC in respect of particular 2.i of the allegation, however, this admission is not determinative of the issue.

60. The Committee noted that misconduct, which is akin to UPC, was defined in the case of Roylance v GMC [2000] 1 AC 311 as: “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”. For an architect, the rules and standards ordinarily required to be followed are contained in the 2017 Code.

61. The Committee had regard to the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and noted 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” is required.

62. 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”. The Queen on the Application of Dr Malcolm Noel Calhaem v General Medical Council [2007] EWHC 2606 (Admin).

63. The Committee also recognises that any failing must be serious, Vranicki v Architects Registration Board [2007] EWHC 506 Admin.

64. The Committee has found that the terms of engagement provided by the Respondent in the Letter of Appointment dated 19 November 2018 were deficient. Furthermore, the Committee has found that the Respondent has breached Standard 4.4 of the Code. The Committee noted that the Respondent had accepted that he had used this letter as the written agreement setting out his terms of engagement for many years. In the Committee’s view, it is a fundamental requirement that an architect complies with this aspect of the Code. Clear and comprehensive terms of engagement are necessary to provide clarity and to inform both parties of their rights and responsibilities. In these circumstances, the Committee finds the Respondent’s failing to be sufficiently serious for the Committee to find the Respondent guilty of UPC in relation to particular 2.i of the allegation.

65. The Committee next considered whether the Respondent’s proven conduct in respect of particular 2.ii of the allegation amounts to UPC. The Committee has found that although the Respondent failed to adequately consult the Complainant on the integration of the flat roof prior to the submission of planning, he has not breached Standard 6.1 of the Code, nor indeed any other Standard or the spirit of the Code.

66. The Committee also had regard to the evidence of what occurred after the Complainant’s wife sent an email to the Respondent on 5 August 2019 seeking clarification of the design of the roof structure over House 1. The Committee was satisfied that when it became apparent to the Respondent that the Complainant was unhappy with the existing roof design, he provided drawings for an alternative design that incorporated a pitched roof. He also provided a draft letter to the local planning authority for a Minor Amendment. The Respondent did not charge an additional fee for this. In his evidence to the Committee, the Complainant stated that if he had been presented with this design prior to the submission of the planning application, he would have approved it. The Complainant also stated in answer to a question from Mr Collett, that if the Respondent had offered to pay the Minor Amendment application fee of £234 then he would not have made a complaint about the Respondent to ARB. The Committee noted that unfortunately, a dispute then arose between the parties and the professional relationship broke down.

67. Having regard to all of the above, in the Committee’s judgement the Respondent’s failings as found proved in particular 2.ii of the allegation are not sufficiently serious to amount to UPC. Furthermore, the Committee was satisfied that the Respondent’s conduct was not such as to attract a degree of moral blameworthiness likely to convey a degree of opprobrium to the ordinary intelligent citizen.

68. The Committee therefore finds the Respondent guilty of UPC but only in relation to particular 2.i of the allegation.

Decision on Sanction

69. Having found UPC in relation to particular 2.i of the allegation, the Committee heard submissions from Ms Sheridan on behalf of ARB and from Mr Collett on behalf of the Respondent.

70. In reaching its decision, the Committee had regard to the Sanctions Guidance (“SG”) published by ARB and accepted the advice of the Legally Qualified Chair. The Committee has exercised its own independent judgement.

71. The Committee reminded itself that the primary purpose of sanctions is to protect members of the public, to maintain the integrity of the profession, and to declare and uphold proper standards of conduct and competence. 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 and the need to act proportionately.

72. The Committee noted that appearance before this Committee is in itself salutary and that the Act does not require the Committee to impose a sanction in every case where a guilty finding is reached so the Committee may choose to impose no sanction. If it decides to impose a sanction, then the sanctions available to the Committee are:

• Reprimand;
• Penalty order (up to £2500 per charge, with a maximum of 2 charges);
• Suspension (for a maximum of two years); and
• Erasure

73. In determining the seriousness of this matter, the Committee has identified the following mitigating factors:

• The Respondent admitted UPC in respect of particular 2.i of the allegation;
• The Respondent has fully engaged with ARB and the regulatory process;
• The Respondent has been a registered architect for 28 years and has no previous regulatory findings recorded against him;
• The Respondent has expressed genuine remorse and apologised for his actions;
• There was no damage or loss to the Complainant or others;
• The Respondent has not benefitted financially from his conduct;
• The Respondent has taken remedial action to address the deficiencies in his terms of engagement; and
• The risk of repetition of the conduct is very low.

74. The Committee identified no aggravating factors in this case.

75. The Committee therefore considered whether the level of seriousness of this case was so low that it would be disproportionate to impose a sanction. The Committee noted that this is not an egregious case in which the Respondent has provided no terms of engagement. The Respondent has nevertheless breached Standard 4.4 of the Code. In the Committee’s view, it is a fundamental requirement that an architect complies with this aspect of the Code. Clear and comprehensive terms of engagement are necessary to provide clarity and to inform both parties of their rights and responsibilities. The Committee accepts that the Respondent took legal advice when preparing the terms of engagement contained in his Letter of Appointment, however, this was 16 years ago. The requirements contained in Standard 4.4 were first promulgated in the 2010 Code and were repeated in the 2017 Code. The Respondent has admitted that although his Letter of Appointment has been reviewed, it does not comply with this Standard and it has been the template used for all of his clients.

76. In the Committee’s view, this conduct is too serious for it to impose no sanction. It considered that a sanction is required to protect the public and to maintain confidence in the profession and to declare and uphold proper standards of conduct.

77. Having determined that it is necessary to impose a sanction, the Committee considered each available sanction in ascending order of severity.

78. The Committee first considered whether to impose a reprimand. The Committee noted that reprimand is the least severe sanction that can be applied. It may be used in relation to offences which fall at the lower end of the scale of seriousness, and where it would be appropriate to mark the conduct or competence of an architect as being unacceptable.

79. Having regard to its previous findings in the case, including the extensive mitigating factors identified, the Committee considered that a reprimand is the necessary and appropriate sanction. The Committee is satisfied that it is sufficient to protect the public. Furthermore, this sanction together with the Committee’s findings in relation to UPC would be sufficient to mark the conduct as unacceptable and uphold the reputation of the profession.

80. In deciding whether a reprimand was appropriate and necessary the Committee did consider the imposition of a penalty order. However, the Committee considered that this sanction would be disproportionate in all of the circumstances of the case.

81. The Committee therefore imposes a reprimand which will remain on the Respondent’s record and will be published for one year.

82. That concludes this determination.

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