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Mr Philip John Bintliff

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

PHILIP JOHN BINTLIFF (046173C)

Held on

13 – 16 November 2023

Via video conference

_______________

Present:

Margaret Obi (Chair)
Stuart Carr (PCC Architect Member)
Rachel Childs (PCC Lay Member)

_______________

 

The Architects Registration Board (“the ARB”) was represented by Mr Jean-Jack Chalmers instructed by Kingsley Napley LLP (“the Presenter”).

Mr Philip Bintliff (“the Registered Person”) did not attend the hearing and was not represented.

The Professional Conduct Committee (“the Committee”) determined that the Registered Person is guilty of Unacceptable Professional Conduct (“UPC”).  It did so, having determined that the Allegations (see below) were found proved in their entirety;

 

(1) The Registered Person failed to provide their client with adequate written terms of engagement contrary to Standard 4.4 of the Architects Code.

 (2) The Registered Person failed to adequately advise the client on costs, in that he:

           i. Did not provide adequate advice on the initial construction costs for the project; and/or

          ii. Did not provide the client with an adequate method of tracking costs against the original budget as the project progressed.

 (3) The Registered failed to manage a conflict of interest adequately in that he:

         i. Failed to disclose to the client in writing that by acting as both architect and contractor his advice would not be impartial; and/or

        ii. Failed to obtain written consent from the client that he should continue to act in the circumstances.

 (4) The Registered Person failed to act with due skill and care in his role as Architect and/or Contract Administrator in that he:

i. Failed to advise the client, adequately or at all, of their duties under the CDM Regulations 2015;

ii. Failed to prepare and/or ensure the Health and Safety Information was put in place before work started on site;

iii. Failed to notify the client in a timely manner of the requirement to pay the Community Infrastructure Levy payment;

iv. Failed to adequately advise the client on the merits of using a standard building contract;

v. Failed to issue interim payment certificates in a timely manner and/or at all;

vi. Failed to provide a complete set of working drawings for the construction phase of the project;

vii. Failed to adequately discharge planning consent pre-conditions on the project.

 

(5) The Registered Person failed to safeguard the client’s money, in that he failed to obtain the client’s consent in relation to three payments totalling £15,000 to an intermediary broker.

 (6) The Registered Person failed to ensure the construction was carried out in compliance with Planning and/or Building Regulations requirements.

 (8) The Registered Person’s actions at particulars 3 and 5 lacked integrity.

 (9)The Registered Person’s actions at particulars 5 were dishonest.

and that by doing so, he acted in breach of Standards 1.3, 2.1, 4.1, 4.4, 6.1, 6.2, 6.3, 7.1 and 7.4 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed by the Committee was Erasure.

 

Allegations

  1. The allegation made against the Registered Person is that he is guilty of Unacceptable Professional Conduct.

 

2. The ARB relies upon the following particulars in support of the allegation:

 

(1) The Registered Person failed to provide their client with adequate written terms of engagement contrary to Standard 4.4 of the Architects Code.

(2) The Registered Person failed to adequately advise the client on costs, in that he:

 

           i. Did not provide adequate advice on the initial construction costs for the project; and/or

           ii. Did not provide the client with an adequate method of tracking costs against the original budget as the project progressed.

 

(3) The Registered Person failed to manage a conflict of interest adequately in that he:

           i. Failed to disclose to the client in writing that by acting as both architect and contractor his advice would not be impartial; and/or

           ii. Failed to obtain written consent from the client that he should continue to act in the circumstances.

 

(4) The Registered Person failed to act with due skill and care in his role as Architect and/or Contract Administrator in that he:

         i. Failed to advise the client, adequately or at all, of their duties under the CDM Regulations 2015;

         ii. Failed to prepare and/or ensure the Health and Safety Information was put in place before work started on site;

         iii. Failed to notify the client in a timely manner of the requirement to pay the Community Infrastructure Levy payment;

         iv. Failed to adequately advise the client on the merits of using a standard building contract;

         v. Failed to issue interim payment certificates in a timely manner and/or at all;

         vi. Failed to provide a complete set of working drawings for the construction phase of the project;

         vii. Failed to adequately discharge planning consent pre-conditions on the project.

 

(5) The Registered Person failed to safeguard the client’s money, in that he failed to obtain the client’s consent in relation to three payments totalling £15,000 to an intermediary broker.

(6) The Registered Person failed to ensure the construction was carried out in compliance with Planning and/or Building Regulations requirements.

(7) The Registered Person failed to avoid a situation which was inconsistent with his professional obligations in that he arranged for works to be carried out to his wife’s property as part of the project he was undertaking for the Referrer.

(8) The Registered Person’s actions at particulars 3 and/or 5 and/or 7 lacked integrity.

(9) The Registered Person’s actions at particulars 5 and/or 7 were dishonest.

 

Background

  1. The background circumstances, as set out below, are based on the report prepared by Kingsley Napley, which in turn was based on the witness statement of Mr K (“the Referrer”) and the report of the Independent Inquirer – Ms Carol Norton. The Presenting Officer, in the opening of his case, relied on the alleged facts as set out in the report. In light of the correspondence received by ARB, on behalf of the Registered Person, the Committee proceeded on the basis that the material alleged facts were denied.

 

  1. The Registered Person is a registered architect.

 

  1. The Referrer is the director of Teamex (UK) Limited (“Teamex”), a company that was in the market of purchasing properties in London and renting them out after refurbishment.

 

The Project

 

  1. In or around September 2018, the Referrer was approached by one of Teamex’s tenants, Mr J, and asked whether he was interested in investing in a new build residential development in Truro, Cornwall. The development consisted of the purchase and development of two adjoining sites, Xenia and Jackson Ope.

 

  1. Jackson Ope was owned by the Registered Person and was already partially developed as five bungalows that required refurbishment. The leasehold of one of those bungalows was owned by the Registered Person’s wife. The other four units at Jackson Ope were unfinished.

 

  1. Mr J was an associate of Mr W, a property developer who had an option to buy the Xenia site. Planning permission was already in place for the Xenia site to build an apartment block of residential flats.

 

  1. The Registered Person had been introduced to Mr W by his solicitor Mr B. Mr W introduced the Registered Person to Mr J, who in turn introduced him to the Referrer.

 

  1. The proposal was that the Referrer bought both sites and then paid the Registered Person’s company, Studio BAAD, to act as both Architect and Contractor to design and construct the properties. Xenia would be developed first, making available seven flats to generate revenue. Thereafter, it was proposed that using some of those funds, Jackson Ope would be developed. It was also proposed that Studio BAAD would be paid a fee of 10% of the construction costs for the architectural work and another 10% of the construction costs for their management fee for the construction works, both fees were to be paid on completion of the works.

 

  1. Both sites were purchased simultaneously on 9 October 2018. Xenia was subsequently transferred to a company, Partum Domus Limited, set up by the Referrer for the sole purpose of separating liability. It was anticipated that the contract period would be one year, with demolition work on site starting in October 2018, followed by the foundations starting in January 2019.

 

Cost Estimates and Delays

 

  1. The Registered Person originally estimated that the costs to redevelop Xenia would be £290,000 excluding VAT. The total budget for both sites including purchase costs was set at £1,000,000 plus a contingency of £100,000. By June 2019 the Referrer was told that the contingency was required because the foundations had been more expensive than anticipated. The Referrer borrowed money from his father and took out a bridge loan to make the contingency funds available to Studio Baad. The Registered Person began to send the Referrer financial spreadsheets regarding the costs of the project from October 2019. The Referrer was made aware that the Registered Person had used his own funds on the project. The Referrer took out a further loan to repay the Registered Person and to satisfy a debt to HMRC. By December 2019, the budget had been exceeded and more funds were requested by the Registered Person to complete the project. The Referrer again turned to his father and a close associate of his father to raise additional funds.

 

  1. A formal construction agreement was signed in December 2019 for a fourteen-week completion contract.

 

  1. In early January 2020 the Registered Person sent a financial spreadsheet to the Referrer which indicated that three payments totalling £15,000 had been made to Mr J representing a referral fee. These had not been discussed with or agreed by the Referrer. The Payments had been made by the Registered Person without the consent of the Referrer. The Referrer sought to recover these funds but was ultimately unsuccessful.

 

  1. The Covid-19 lockdown in March 2020 affected the project, resulting in further delays and costs. By June 2020, the project was still not completed, and costs had continued to escalate beyond the updated budget agreed in December 2019. By this time, the Referrer had transferred funds in excess of approximately £35,000 above the revised agreed budget and the project was far from complete. The Referrer employed a Chartered Building Surveyor, Mr T, to provide advice. Mr T identified several issues relating to costings, planning conditions, workmanship, and building regulations within a draft report dated 19 July 2020. Mr T concluded that:

 

i. The original budget in October 2018 was £240,00 with a project timescale of 1 year. By July 2020 the project was unfinished with predicted expenditure of£909,000;

ii. There were potential issues on site with workmanship with regards to the roof, external walls, windows, doors, and kitchens;

iii. Planning conditions 3, 6 and 11 did not appear to have been discharged;

iv. The project manager has no real grasp on either the programme or the costs. There had been very poor programme and costs management, the site management, sequencing of works and supplying of materials at the required times had been very poor and had/would result in significant additional costs to the client.

 

  1. The Referrer sought to agree a path towards completion of the project with the Registered Person. This proved unsuccessful. Studio BAAD were requested to relinquish the keys to the site on 21 July 2020 and they had left site by 14 August 2020.

 

  1. The issues identified by Mr T were subsequently dealt with through alternative contractors at significant cost to the Referrer.

 

  1. In early 2021, the Referrer began to engage in pre-action protocol with a view to commencing legal proceedings against the Registered Person. The Referrer received no response to a letter of claim and ultimately decided not to proceed through the courts.

 

The Complaint to ARB

 

  1. The Referrer made a complaint to ARB on 23 March 2021. The complaint set out the history of his relationship with the Registered Person and the issues that had arisen. Studio BAAD Ltd started winding up proceedings for a Creditors Voluntary Liquidation in April 2021 and the company was dissolved on 21 July 2021. The Referrer subsequently discovered that a flat roof had been installed in one of the properties on the Jackson Ope site, namely 1 Jackson Ope. The leaseholder for 1 Jackson Ope is the wife of the Registered Person, Ms W. Mr AT of Hi-Tech Flat Roofing Ltd, who had been subcontracted by the Registered Person to carry out the roof work in December 2019, sent an email to the Referrer on 5 May 2022. In that email, Mr AT stated that he had been asked to install a flat roof and warm balcony at 1 Jackson Ope as part of the contract at Xenia at a cost of £6,048.

 

Registered Person’s Response

 

  1. The Registered Person first responded to the alleged issues on 23 September 2021 (“2021 Response”). These responses are addressed below in respect of the relevant particulars of the Allegation. On 31 May 2022, the Registered Person made further representations including the fairness of placing reliance on the opinions of Mr T as he is not an independent expert. The representations included a witness statement from Mr C, who was the Contracts Manager for the project.

 

Preliminary Matters

Service

22. At the outset of the hearing the Committee was provided with a service bundle. The service bundle provided confirmation that ARB had sought the Registered Person’s dates to avoid and based on his availability had sent a Notice of Hearing to his registered address together with ARB’s report and the Professional Conduct Committee Rules (“the Rules”). The bundle was sent via Mimecast due to its size. The Notice of Hearing confirmed the date, time, and venue of the hearing.

 

23. The Committee noted that an extract from ARB’s register confirming the Registered Person’s registered address was provided. The Committee was also provided with proof of posting.

 

24. The Committee was satisfied that the Notice of Hearing had been properly served in accordance with Section 14(4)(a) Architects Act 1997, Rule 6 (49 days’ notice), and Rule 14(c) (postal service) of the 2019 Rules.

 

Proceeding in Absence

 

  1. The Presenter made an application for the hearing to proceed in the absence of the Registered Person under Rule 14(a) of the 2019 Rules.

 

  1. The Committee was advised by the Chair and accepted that advice. The Committee also took into account the guidance as set out in ARB’s guidance – “Proceeding in the Architect’s Absence.”

 

  1. The Committee determined that it was fair and reasonable to proceed with the hearing in the absence of the Registered Person for the following interrelated reasons:

 

i. The Committee noted that in an email, dated 23 October 2023, the Registered Person’s representative stated:

 

“ARB now require [the Registered Person] to prepare and submit a full Defence within 4 weeks and then prepare for and attend a 7 working day trial. Given the very substantial ARB hearing bundle, and the work involved (including responding to an expert report) I have had to advise [the Registered Person] that this workload would incur costs between [amount stated].

 Put simply [the Registered Person] cannot afford to pay for this large sum or pay for any meaningful representation.

 Accordingly I am instructed to advise the following:

 

  1. [The Registered Person] maintains he is not guilty of all charges and you may take this letter as a continuing confirmation of that plea.

 

  1. [The Registered Person] will not be submitting any further Defence.

 

  1. The PCC is asked to note the solicitor’s letter advising accusations of dishonesty cannot be sustained.

 

  1. [The Registered Person] will not be attending the Hearing either in person or through representation.”

 

In these circumstances, the Committee was satisfied that the Registered Person was aware of the hearing date and had made an informed decision not to attend the hearing and not to instruct a representative to attend on his behalf. The Committee was satisfied that the Registered Person’s decision to absent himself from these proceedings represented a deliberate and voluntary waiver of his right to attend.

 

  1. The Registered Person has not made an application to adjourn and there is no indication that even if the case were to be adjourned, he would be willing to attend on any future date. Therefore, an adjournment would serve no useful purpose.

 

  1. The Committee noted that there may be some disadvantage to the Registered Person in not being able to orally challenge ARB’s case or give evidence at the hearing. However, the Committee concluded that any potential disadvantage to the Registered Person was significantly outweighed by the strong public interest in ensuring that the witnesses scheduled to give evidence are not unnecessarily inconvenienced and that the hearing commences and proceeds as expeditiously as possible.

 

Evidence

 

  1. The Committee was provided with a hearing bundle which included:

 

i. Report to ARB prepared by Kingsley Napley

ii. Witness Statements of the Referrer (dated 20 December 2022), Ms SA (dated 3 January 2022), and Mr AT (dated 12 September 2023)

iii. Inquirer’s Report  (dated 25 May 2023)

iv. Addendum Inquirer’s Report (dated 1 June 2023)

v. Mr T’s Draft Report (19 July 2020)

vi. Various invoices and spreadsheets

vii. Various email correspondence and text messages

viii. Registered Person’s representations (dated 23 September 2021) and further representations (dated 31 May 2022)

 

  1. The Referrer and the Inquirer both gave oral evidence to the Committee.

 

Hearsay Application

 

  1. The Presenter made an application for the evidence of Ms SA and Mr AT to be admitted as hearsay.

 

  1. The Presenter submitted that the evidence of Ms SA is not particularly pertinent to the allegations but provides background information with regard to the correspondence. He further submitted that it was always ARB’s intention to rely on Ms SA’s evidence as hearsay and the Registered Person was on notice of this in advance of the hearing. The Presenter conceded that the evidence of Mr AT was very different, in that, ARB had intended to call him as witness but despite concerted efforts the hearing officer had not been able to make contact with him. The Presenter submitted that, although Mr AT’s evidence was crucial to particular 7 and there was no clear reason for his non-engagement, reasonable efforts had been made to secure his attendance. He further submitted that the Committee could have regard to his evidence and decide in due course how much weight should be placed on his evidence in the absence of the usual safeguards.

 

  1. The Committee accepted the advice of the Chair. The Committee was mindful that, present or absent, the Registered Person was entitled to a fair hearing and ARB should be afforded a reasonable opportunity to present its case as it wishes.

 

  1. The Committee was satisfied that the evidence of Ms SA should be admitted for the reasons outlined by the Presenter. The Committee accepted that the evidence provided background information and would cause no injustice to the Registered Person.

 

  1. The Committee noted that Mr AT’s evidence was the sole and decisive evidence in respect of particular 7. Although Mr AT’s evidence was relevant to the issues to be determined by the Committee, it concluded that it would not be fair for this evidence to be admitted. In reaching this conclusion the Committee noted that: (i) no explanation for Mr AT’s absence had been provided; (ii) there would be no opportunity to probe Mr AT’s account or ask questions of clarification; (iii) there was a real risk that the wrong conclusion could be reached; (iv) linked to particular 7 was a serious allegation of dishonesty; and (v) there was no other supporting evidence.

 

  1. For these reasons the Committee determined that the witness statement of Ms SA would be admitted into evidence as hearsay, but Mr AT’s witness statement would not be admitted.

 

 

Decision on Facts

The Committee’s Approach

 

  1. The Chair 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 Chair 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.

 

  1. The Chair further advised that having given the Inquirer’s evidence careful consideration, which would include an assessment of her expertise, conclusions, and the quality of the analysis which informed her opinions, the Committee may accept her evidence in whole or in part.

 

  1. In Wingate and Evans v SRA and SRA -v- Malins [2018] EWCA Civ 366 the Court of Appeal described integrity in terms of the higher standards that society expects from professional persons and which professionals expect from their own members. In broad terms, integrity denotes adherence to the ethical standards of one’s own profession, and professional integrity is linked to the manner in which that particular profession professes to serve the public.

 

  1. In Ivey -v- Genting Casinos (UK) Ltd [2017] UK SC 67 the Supreme Court confirmed that when considering dishonesty, the Committee must first establish, subjectively, the state of the Registered Person’s knowledge or belief as to the facts and once established, whether his conduct was honest or dishonest by the objective standards of reasonable and honest people.

 

Findings of Fact

 

Particular 1 – Found Proved

 

  1. Standard 4.4 of the ARB Code sets out the written terms of engagement that must be included before an architect undertakes any professional work. The requirements include confirmation that the architect has a complaints-handling procedure which is available on request, is registered with the ARB, and is subject to the Code.

 

  1. On 8 October 2018, the Registered Person emailed the Referrer his terms of engagement for the project. Ms Norton stated in her Report that the Registered Person’s terms of engagement fulfil the majority of the Standard 4.4 requirements. However, she stated that there is no mention of a complaints handling procedure; no mention that the Registered Person is registered with the ARB; and no mention that the Registered Person is subject to the ARB code. Ms Norton expressed the opinion that the lapses fall “slightly short” of the standards required but caused no disadvantage to the Referrer.

 

  1. The Committee noted that the Registered Person in his 2021 Response stated that he took professional advice on the terms and conditions included within the contract from a former RIBA advisor and well-known published author. The Registered Person acknowledged that the contract does not set out an express complaint procedure, nor does it expressly refer to his registration with the ARB but submitted that this is a minor technical omission.

 

  1. The Committee noted that there was no evidence that the Registered Person’s non-compliance with Standard 4.4 caused any disadvantage to the Referrer. However, the Committee concluded that the requirements as set out in Standard 4.4 are fundamental in ensuring that clients are adequately protected in the event of a dispute. The Committee did not accept the Registered Person’s suggestion that the terms that were absent from his contract were minor technical omissions. The Referrer was entitled to be informed of all the matters referred to in Standard 4.4 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 absence of adequate terms of engagement was a failure by the Registered Person to fulfil his requirements under the Code. No good reason for this omission was provided.

 

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

 

Particular 2(i) – Found Proved

 

  1. The agreement between Studio BAAD and Teamex stipulated that the Referrer would make £1,000,000 available for the two projects, with a contingency fund of £100,000, if required. The anticipated budgets for construction work at Xenia and Jackson Ope were set out in separate letters from the Registered Person dated 4 October 2018. The anticipated budget for Xenia was £290,000 excluding VAT and for Jackson Ope was £100,000 excluding VAT. It was anticipated that the funds to undertake the work on Jackson Ope would be generated from the sale of units on the Xenia site.

 

  1. The costs of construction ultimately far exceeded those quoted by the Registered Person at the outset of the project. The Referrer had to take out loans and borrow money to meet the increased costs.

 

  1. Ms Norton stated in her Report that the budget of £290,000 to build seven flats on a restricted site was over-optimistic. She referred the Committee to Spon’s Architects’ and Builders’ price book (2018 edition), which estimated a rate of £1,424 per m2. Based on this estimate the works at Xenia would have cost approximately £441,000. Ms Norton stated that the total costs of the development project would be much higher than the construction costs as the estimate provided by the Registered Person did not include consultants’ fees, demolition costs, the Premier Guarantee warrantee, or asbestos report.  In her opinion, the initial cost per m2 was too low by a significant margin of 40% to 60%. She also stated that the Referrer was given very little advice on the additional costs that would be incurred to complete the development and should have been provided with a construction programme provided in a format showing the timing of each stage of work and the anticipated completion date.  It was Ms Norton’s opinion that the Registered Person failed to accurately advise the Referrer on the initial construction costs and failed to advise on how building contracts normally operate and financial safeguards, such as the appointment of a Chartered Building Surveyor. She stated that the lack of professional impartial advice on the part of the Registered Person fell well below the standard expected of a reasonably competent architect.

 

  1. The Registered Person, in his 2021 Response, denied the allegation that he did not provide adequate advice on the initial construction costs of the project. He stated that he advised the Referrer at the outset and throughout on costs through detailed spreadsheets. He also stated that the initial estimate given was reasonable for building work in Cornwall in 2018 and he regularly updated the Referrer as to costs.

 

  1. The Panel noted the following Standards:

 

Standard 4.1: You are expected to have effective systems in place to ensure that your practice is run professionally and that projects are regularly monitored and reviewed.

 

Standard 6.2: You should carry out your professional work without undue delay and, so far is reasonably practicable, in accordance with any time-scale and cost limits agreed with your client.

 

Standard 6.3: You are expected to keep your client informed of the progress of work you undertake on their behalf and of any issue which may significantly affect its quality or cost

 

  1. The Committee accepted the factual evidence of the Referrer that the costs of the project spiralled out of control. The Committee accepted the evidence of Ms Norton that the initial assessment of construction costs was wholly unrealistic. There was no evidence before the Committee that the Registered Person had provided advice on additional costs that would be incurred and as a consequence, the Referrer committed himself to a project without accurate information as to the costs and profitability. This resulted in significant financial loss. No good reason for the Registered Person’s failure to provide adequate advice was provided.

 

  1. For these reasons the Committee concluded that the Registered Person failed in his duty to adequately advise and manage the costs of the project and therefore Particular 2(i) was found proved.

 

Particular 2(ii) – Found Proved

 

  1. The Committee accepted the evidence of the Referrer. He stated that he initially liaised with Mr J. However, he subsequently sought to obtain information about the progress of the project and the financial position directly from the Registered Person. The Registered Person updated the Referrer in respect of the costs of the project in the form of spreadsheets. The first spreadsheet was sent to the Referrer by the Registered Person in October 2019. As the project progressed the format of the spreadsheets changed from a spreadsheet list with cumulative expenditure, to a spreadsheet with the costs divided between units which mixed paid and unpaid items, to completion cost estimates showing remaining costs but no indication of overall costs or progress.

 

  1. Ms Norton informed the Committee that once work on the site had commenced, the Registered Person should have provided a financial breakdown in spreadsheet form every month (or thereabouts), showing the percentage of each work area completed, the costs incurred to date, and any costs or savings. She stated that the spreadsheets provided by the Registered Person were not a traditional contract costing spreadsheet. In her opinion the spreadsheets that the Registered Person provided were an inadequate tool to monitor the financial progress of the project against the original contract sum. The project spreadsheets did not give a breakdown of the actual costs in relation to the original budget costs for the various elements of work and therefore it was unclear if an element of the work had gone over budget. As the project progressed, the Registered Person advised on the remaining funds required rather than the overall building contract costs, the documents provided lacked clarity and there was confusion between the parties on the costs and remaining expenditure. The Registered Person failed to provide the Referrer with a clear method of tracking costs against the original budget for the project and there were arithmetical discrepancies in the monthly cumulative totals for June 2019, August 2019, September 2019, and October 2019. There was also no separation of building contract costs and ‘additional’ costs such as planning fees and building regulation fees. Ms Norton stated that these additional costs would be expected to be seen clearly reported as a separate sub-section in a monthly cost update. Furthermore, she stated that there was no strategic overview of project costs provided to the Referrer or reporting on cost increases in a methodical manner.

 

  1. The Committee accepted the opinion evidence of Ms Norton and her rationale. The Committee concluded that the Registered Person had a duty to advise the Referrer of the increased costs and failed to fulfil this duty clearly and transparently. The Registered Person failed to keep the Referrer informed of the costs at a strategic level and failed to monitor the costs against the original budget or to reset the budget accurately. The systems implemented by the Registered Person for tracking the project costs and communicating financial information to the Referrer were wholly inadequate. The failure to monitor the costs appropriately left the Referrer with no adequate way of understanding why additional funds were required and the likely impact on the overall budget of the project. No good reason for this failure was provided. The Committee accepted the evidence of Ms Norton that these failures fell well below the standard expected of a reasonably competent architect.

 

  1. For these reasons particular 2(ii) was found proved.

 

 

Particular 3(i) and Particular 3(ii) – Found Proved

 

  1. There was an agreement that the Registered Person would act as Architect and Contractor for the works on both sites. As the Architect, the Registered Person was entitled to fees of 10% of the project cost and as the Contractor, he was entitled to fees of a further 10% of the project cost.

 

  1. Ms Norton stated in her Report that a conflict of interest arose because Studio BAAD’s fees for acting as architect and contractor were both based on an uncapped percentage of the final project costs. The Registered Person was responsible for certifying payments and reporting project costs. Therefore the independence of those valuations and/or reports was compromised. Ms Norton also stated that Studio BAAD would benefit financially from any increase in the project costs, there was no formal mechanism for an independent overview of finances on the project and the Referrer was placed at a disadvantage. It was Ms Nortons’s opinion that the Registered Person should have informed the Referrer in writing of the conflict of interest in acting as the architect and contractor on the same project. He should have explained the situation and sought the Referrer’s informed consent in writing. Ms Norton stated that the Registered Person’s actions in this regard fell well below the standard expected of a reasonably competent architect.

 

  1. The Registered Person stated in his 2021 Representations that the Referrer was aware of his dual role and accepted the arrangements. The Registered Person acknowledged that he did not put this in writing but suggested that the failure was a technical one only. He denied that his actions demonstrated a lack of integrity.

 

  1. The Committee accepted the evidence of Ms Norton and her rationale. The Committee also accepted the evidence of the Referrer that he was unaware that the Registered Person’s dual role presented a conflict of interest.

 

  1. The Committee noted that Standard 1.3 states:

 

“Where a conflict of interest arises you are expected to disclose it in writing and manage it to the satisfaction of all affected parties. You should seek written confirmation that all parties involved give their informed consent to your continuing to act. Where this consent is not received you should cease acting for one or more of the parties.”

 

The Committee concluded that the Registered Person had a duty to raise the conflict of interest with the Referrer and obtain express consent in writing if he was to continue to act as both architect and contractor. In failing to do so, the Registered Person breached Standard 1.3. No good reasons for these failures were provided.

 

  1. For these reasons, the Committee found Particulars 3(i) and 3(ii) proved.

 

Particular 8 (in respect of Particular 3) – Found Proved

 

Lack of integrity

 

  1. The Committee concluded that it would have been apparent to the Registered Person that his arrangement with the Referrer caused a conflict of interest as his fees were based on an uncapped percentage of the final project costs and he was the person in charge of certifying payments and reporting project costs. In the absence of any independent oversight to guard against the conflict and with no mechanism for independent overview of the project finances, the Referrer was in a vulnerable position as the Registered Person was likely to profit from any increase to the project costs that he was determining.

 

  1. The Referrer placed a significant degree of trust in the Registered Person and this trust was betrayed because the Registered Person did not adhere to the high standards of openness and transparency that were expected of him. The Registered Person’s failure to disclose the conflict of interest, advise the Referrer and obtain consent or otherwise resolve the conflict demonstrated a lack of integrity.

 

  1. In these circumstances, Particular 8 in respect of Particular 3 was found proved.

 

Particular 4(i) and 4(ii) – Found Proved

 

  1. Ms Norton stated in her Report that the Construction Design Management Regulations 2015 (“CDM Regulations”) applied to this project because more than one contractor was involved in providing services. She stated that the Referrer had a duty to notify the Health and Safety Executive of the project by way of an F10 form. The project was notifiable because it was due to (and did) exceed 500 person days. It was the Registered Person’s responsibility as both architect and contract administrator to advise the Referrer of his duties under the CDM Regulations. It was also his responsibility to prepare and/or ensure the Health and Safety Information was put in place before work started on the site.

 

  1. The Registered Person denied that he failed to manage the project appropriately.

 

  1. The Committee accepted the evidence of Ms Norton. The Committee also accepted the evidence of the Referrer. He stated in his witness statement that he was not made aware of these CDM Regulations or the Health and Safety requirements. The Committee noted that as soon as the Referrer became aware of these requirements, he took appropriate action.

 

  1. The Committee took into account the following Standards:

 

Standard 2.1: You are expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work they should be competent and adequately supervised.

 

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

 

  1. The Committee concluded that the Registered Person failed to inform the Referrer of his duties as a commercial client under the CDM Regulations, failed to prepare pre-contract health and safety information for the project, and failed to ensure the Pre-Construction Health and Safety file was put in place by Studio BAAD before the work started on site. In the event of a serious breach of the regulations, construction work could be stopped by the Health and Safety Executive or the local authority. In the most serious circumstances, the Referrer could have been prosecuted. In these circumstances, the Committee accepted the evidence of Ms Norton that the Registered Person failings exposed the Referrer to serious risk and affected the safety of those on site. The Committee concluded that Registered Person’s work had not been competently carried out with skill and care. No good reasons for these failures were provided.

 

  1. For these reasons, Particulars 4(i) and 4(ii) were found proved.

 

Particular 4(iii) – Found Proved

 

  1. A Community Infrastructure Levy (CIL) Notice was issued on 14 August 2019. It was sent to the planning consultant employed by Studio BAAD. Payment was due within 60 days of commencement on site. It was the opinion of Ms Norton that if the Registered Person failed to inform the Referrer of the requirement for a CIL payment, this fell well below the standard expected of a reasonably competent architect.

 

  1. The Referrer stated in his witness statement that the Registered Person did not discuss with and/or advise him of the requirements in respect of the CIL. The Referrer stated that he first became aware that money was owed to Cornwall Council in May 2020. It transpired that the Registered Person had failed to submit a Commencement Notice to the local authority before commencing work on the development. As a consequence, the

Referrer was required to pay the levy together with a penalty of £2,550 for failing to submit the commencement notice. The Committee accepted the evidence of the Referrer.

There was no evidence the actions of the Registered Person caused the Referrer to suffer financial loss as a result of the non-compliance. No good reason for this failing was provided.

 

  1. The Committee concluded that the Registered Person failed in his duty to provide adequate advice to the Referrer. The Registered Person’s work had not been competently carried out with skill and care. In reaching this conclusion the Committee took into account Standards 2.1 and 6.1.

 

  1. For these reasons, Particular 4(iii) was found proved.

 

Particular 4(iv) – Found Proved

 

  1. The Referrer stated in his witness statement that by the time the work commenced on site, there was no building contract in place. He went on to state that as the project became more delayed and more money was requested beyond the original budget anticipated, he became anxious and felt trapped in the project. He requested his father’s assistance in acquiring more funds to finance the project. At the request of the Referrer, a construction agreement for the completion of the works was drawn up in December 2019. The Referrer stated that when he later sought to rely on the December 2019 construction agreement, the Registered Person described it as poor, incomplete, and stated that it probably carried very little or no weight. Until December 2019, the only agreement in place for the building works was the letter dated 4 October 2018 in respect of Xenia and an agreement of the same date in respect of both sites.

 

  1. Ms Norton expressed the opinion that the building contract, as set out in the letter dated, 4 October 2018, was inadequate. She stated that it was more akin to a letter of intent than a construction contract, as the scope of works are so vague. For example, she stated that there is no reference to any drawings, performance specifications, or what the course of action will be if planning permission is not granted. There is no mention of any standard building contract to be adopted once the design and price has been finalised.

 

  1. The Committee accepted the evidence of Ms Norton. The Committee concluded that the initial agreements contained inadequate detail for the building contract and exposed both parties to significant risk. The Registered Person failed to advise the Referrer to enter a more robust form of contract for the first fourteen months of the project and noted that he also failed to ensure a standard form of building contract was used on the project once planning permission was achieved.

 

  1. For these reasons, the Committee concluded that the Registered Person failed to advise the Referrer of the merits of using a standard form of building contract on the project. The Registered Person’s work had not been competently carried out with skill and care. In reaching this conclusion the Committee took into account Standards 2.1 and 6.1.

 

Particular 4(v) – Found Proved

 

  1. Ms Norton stated in her Report that under standard forms of building contracts, the contract administrator or architect would be expected to issue interim payment certificates at regular intervals throughout the contract period. The purpose of the certificates is to value the works, so the client can pay the contractor the correct amount of money due for the works completed or partially completed on-site in accordance with the contract. The agreement, dated 4 October 2018, expressly refers to the provision of architect’s certificates.

 

  1. The Committee noted that there was no evidence that any interim certificates were issued by the Registered Person.

 

  1. Ms Norton stated that once the work on the site had commenced, the Registered Person should have issued architect’s certificates every month. The Committee accepted the evidence of Ms Norton and concluded that the Registered Person failed to issue interim payment certificates. No good reason for this failure was provided. As a result of the actions of the Registered Person, the Referrer ended up paying for sub-standard work or work that was not in compliance with building regulations and/or planning permission. The Registered Person’s work had not been competently carried out with skill and care. In reaching this conclusion the Committee took into account Standards 2.1 and 6.1.

 

Particular 4(vi) – Found Proved

 

  1. The Committee noted that information and drawings were requested from the Registered Person, via the ARB, by Ms Norton. However, these were not provided by the Registered Person. Ms Norton stated in her Report that she had not seen any construction issue drawings or accompanying specifications, schedules of work, window, door, ironmongery, sanitaryware, or finishes schedules, which would normally be produced in conjunction with the drawings in order to construct seven new build dwellings. Ms Norton stated that, as a minimum, the following information would have been required for the construction phase of the project: (i) Roof plan showing falls and outlets; (ii) Roof details (the cold unvented roof shown with no falls or drainage on the Building Regulations drawings is not sufficiently detailed); (iii) Mechanical and Electrical layouts; (iv) Shower room layouts for each flat type; (v) Revised details to show the new window and door details where the window casings were omitted; and (vi) A Threshold detail would be required to show how a level threshold would be achieved when the ground floor level was changed.

 

  1. Ms Norton stated that if the drawings exhibited in the ARB’s Bundle were the only drawings provided and there was no construction issue of drawings for the project, then the Registered Person would have fallen well below the standard expected of a reasonably competent architect.

 

  1. The Registered Person stated that the drawings he provided were more than adequate and planning and building regulation approval were both granted based on the drawings.

 

  1. The Committee considered that the fact that the Registered Person had failed to provide a list of construction drawings when asked to do so by Ms Norton, alongside the obvious difficulties with construction that were experienced on site, meant that it was more likely than not that there had not been a complete set of working documents made for the construction phase of the project. For example, the size of the timber frame was miscalculated and did not fit the foundations and the thresholds were incorrect following the removal of underfloor heating. This all indicated that there were incomplete working drawings for the project.

 

  1. The Committee accepted the evidence of Ms Norton that it was very important for a complete set of drawings to be provided for the construction phase of the project. In the absence of such drawings, the work was at risk of failing to meet the requirements set down by building regulations and planning permission. The Committee concluded that the Registered Person’s work has not been competently carried out with skill and care. In reaching this conclusion the Committee took into account Standards 2.1 and 6.1.

 

  1. For these reasons, the Committee found Particular 4(vi) proved.

 

Particular 4(vii) – Found Proved

 

  1. Conditional planning permission was granted for the Xenia site on 7 March 2019. Conditions 5 and 11 were both pre-commencement conditions. Condition 5 stated that “[N]o development shall commence, including any works of demolition, until a Construction Method Statement has been submitted to, and approved in writing by, the Local Planning Authority.” The necessary contents of the statement were set out. Condition 11 stated that “[N]o development approved by this permission shall be commenced until the following details are provided…” followed by a list of 6 specific requirements including details of the final drainage schemes including calculations and layout, and a Construction Surface Water Management.

 

  1. Cornwall Council made it clear that: If conditions have been included that must be complied with before the commencement of the development, e.g. “No development shall commence before ….”.

 

  1. The Committee noted that although the works commenced in November 2018, an application to discharge conditions 5 and 11 was not made until 7 May 2020. They were discharged on 3 August 2020. The application to discharge the conditions, submitted on 7 May 2020, stated that the commencement date was 12 March 2020, which is factually incorrect.

 

  1. The Committee accepted the evidence of Ms Norton and concluded that the Registered Person failed to comply with the express conditions set down by Cornwall Council and commenced work on the development before discharging the necessary conditions. Commencing the work before the pre-conditions had been met  exposed the Referrer to unnecessary risk. The Committee concluded that the Registered Person demonstrated a lack of due care and skill. In reaching this conclusion the Committee took into account Standards 2.1 and 6.1.

 

  1. For these reasons, the Committee found Particular 4(vii) proved.

 

Particular 5 – Found Proved

 

  1. Three payments, each for £5,000, were made by the Registered Person to Mr J on 12 November 2018, 28 November 2018, and 4 December 2018 respectively. These payments were said to be an introduction fee. The Referrer stated in his witness statement and during his oral evidence that he had never discussed paying Mr J and therefore the fee had not been agreed. The costs spreadsheet setting out the payments was not sent to the Referrer until 3 October 2019, some ten months later. As soon as the Referrer became aware of the fee, he raised the issue with the Registered Person and sought to recover the funds from Mr J. However, the funds were never recovered.

 

  1. The Registered Person stated in his 2021 Representations that the payments made to Mr J were transparent, evidenced on the spreadsheet and he did not try to conceal them. He stated that the arrangement was between Mr J and the Referrer.

 

  1. The Committee accepted the evidence of the Referrer that he was unaware of these payments which was supported by the documentary evidence, in that, he was not copied into an email on 1 October 2018 between Mr W and Mr J which references an introduction fee of £10,000 be paid to Mr J. However, even if the Registered Person genuinely believed that there was an arrangement in place this should have been confirmed with the Referrer in writing.

 

  1. The Committee noted that the Code states as follows:

 

Standard 7.1 – You should ensure that money is not withdrawn from a client account to make a payment unless it is made to or on behalf of a client on the client’s specific written instructions.

 

Standard 7.4 – You should ensure that money is not withdrawn from a client account to make a payment unless it is made to or on behalf of a client on the client’s specific written instructions.

 

In the circumstances of this case, the Registered Person should have disclosed the arrangement to the Referrer and should not have authorised money to be withdrawn from the Referrer’s account to make a payment other than on the Referrer’s specific written instructions.

 

  1. The Committee accepted the evidence of Ms Norton. She stated that the Registered Person should have sought the Referrer’s instructions prior to making and/or overseeing the payments. The Committee concluded that the Registered Person’s actions were in breach of the Code.

 

  1. For these reasons, the Committee found Particular 5 proved.

 

Particular 8 (in respect of Particular 5) – Found Proved

 

Lack of integrity

 

  1. The Committee concluded that the Registered Person’s failure to safeguard the Referrer’s money was a serious departure from the high standards expected of a registered architect. He did not ensure that the money was only withdrawn from the Referrer’s account on the basis of specific written instructions. The actions of the Registered Person caused a significant financial loss to the Referrer which could not be recovered.

 

  1. The Committee concluded that the Registered Person’s failure to safeguard the Referrer’s money demonstrated a lack of integrity.

 

  1. In these circumstances, Particular 8 in respect of Particular 5 was found proved.

 

Particular 9 (in respect of Particular 5) – Found Proved

 

Dishonesty

 

  1. As stated above, the Committee accepted the evidence of the Referrer and as a consequence concluded that the Registered Person knew that he was paying a significant referral fee to a third party on behalf of the Referrer without first having obtained his consent. The Registered Person also knew that the referral fee increased the project budget and that he stood to gain financially from any increase to the budget as his fees for architectural and building contractor services were directly linked as a percentage of that budget.

 

  1. The Committee took the view that a reasonable and honest person would conclude that the Registered Person’s decision to make the payment without obtaining consent was dishonest.

 

  1. For these reasons, Particular 9 in respect of Particular 5 was found proved.

 

Particular 6 – Found Proved

 

  1. There was evidence before the Committee that Conditional Planning Approval had previously been granted for nine dwellings at Xenia on 31 May 2018. A revised planning application was submitted on 5 December 2018 and the initial Building Regulations application was submitted on 3 December 2018. Conditional Planning Approval for seven dwellings at Xenia was granted on 7 March 2019. Some of the conditions had to be satisfied before work could commence on the site. Conditions 5 and 11 were both pre-commencement conditions but the application to discharge them was not made until 7 May 2020. They were discharged on 3 August 2020. Condition 6 was submitted at the same time, although it should have been submitted prior to the work being carried out. In May 2020, an attempt was made to change the materials used on the project. In July 2020, the planning officer stated in an email that the proposed changes were unacceptable and that an application to remove or vary the existing planning conditions should be made.

 

  1. Building Control issued conditional approval on 2 May 2019 with six conditions. Four of these conditions were due to be complied with at or prior to completion of the project. Conditions relating to storm water drainage and details of the proposed heating system were required before work on the site could progress.

 

  1. The Registered Person denied that he failed to ensure the construction was carried out in accordance with planning and/or building regulations. He stated that the Building Inspector regularly attended and approved works. The Registered Person stated that at the relevant time the work was satisfactory. He also stated that it is not the architect’s duty to ensure construction is carried out in compliance with planning and building requirements. However, the Committee concluded that there was evidence that the Registered Person failed to submit a number of rates, specifications, and calculations as required before work commenced on site. The Referrer confirmed in his witness statement that he was made aware by Mr T, the Chartered Building Surveyor, that there were significant issues with compliance in respect of planning conditions and requirements of Building Control and the appointed insurers, Premier Guarantee. In particular, the concerns were set out in Mr T’s Draft Report dated 19 July 2020, a letter from Mr T dated 22 March 2021, a file note dated 22 March 2021 and emails with Building Control. The Committee also noted that an unventilated cold deck roof had been installed on site which would not have met Building Regulation Requirements. Furthermore, Premier Guarantee and Building Control noted a number of works that had been carried out were non-compliant with Building Regulations on their visits to the site.

 

  1. Ms Norton stated in her Report that the works started on site without the necessary pre-start approvals in place, and there was a potential risk of the local authority issuing a temporary stop notice or an enforcement notice on the work. The Registered Person should have ensured the pre-start planning conditions were discharged as soon as possible after being granted the planning permission. This did not occur until a year after the planning permission was granted. Ms Norton stated that the Registered Person should have maintained up to date drawings and details so that the workers on site had the necessary information to provide a Building Regulations compliant building. She also stated that the original building regulations drawings by the Registered Person in relation to the cavity closers were insufficient. The works on site did not reflect a detail that would be approved by Building Regulations, and this is not work that should be retrofitted.

 

  1. The Committee accepted the evidence of the Referrer and the opinion evidence of Ms Norton. The Committee concluded that the Registered Person should have undertaken site visits to check the quality and progress of the works on site prior to issuing Interim Certificates. This would have avoided issues such as problems in relation to the window sills leaving them at risk of water ingress, uneven thresholds, and a flat roof construction with the incorrect roof drainage. The Committee concluded that the Registered Person failed to ensure that the planning conditions were dealt with in a timely manner. He changed the materials and design of windows without planning approval, and he failed to explain the situation and potential risks of these delays to his client.

 

  1. The Registered Person’s failings were widespread and serious. The failure to ensure that requirements were met is a breach of the duty to competently carry out work and adequately supervise the work of others. There was a lack of skill and care exercised in the execution of the project. Significant delay and financial loss was caused to the Referrer as a consequence.

 

  1. For these reasons, the Committee found Particular 6 proved.

 

 

Particular 7 – Found Not Proved

 

  1. The Committee determined that the witness statement of Mr AT should not be admitted into evidence as hearsay. As his evidence was the sole and decisive evidence in respect of Particular 7 there was no proper basis upon which Particular 7 could be found proved.

 

  1. For this reason, Particular 7 was found not proved and as a consequence the Committee did not go on to consider Particulars 8 (lack of integrity) and 9 (dishonesty) in respect of Particular 7.

 

Decision on Unacceptable Professional Conduct (UPC)

 

The Committee’s Approach

 

  1. The Chair 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 failed to provide the Referrer with adequate written terms of engagement, failed to adequately advice the Referrer on costs, failed to manage a conflict of interest, failed to act with due skill in his role as architect and contractor, failed to safeguard the Referrer’s money and failed to ensure the construction was carried out in compliance with Planning and/or Building Regulations requirements.

 

  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 both individually and cumulatively.

 

Terms of Engagement

 

  1. The failure to issue adequate terms of engagement at the outset of the project is a clear breach of the specific requirements under Standard 4.4 of the Code. The requirements of the Code are clear, and the Registered Person failed to fulfil all necessary criteria. Although the Referrer was not disadvantaged, he was exposed to the risk of harm. Furthermore, despite the inadequate terms of engagement being towards the lower end of the spectrum in respect of seriousness, it forms part of a pattern of behaviour.

 

Client costs

 

  1. The Registered Person’s failure to adequately advise the Referrer on costs was a serious departure from the high standards expected of a registered architect. The Code requires an architect to be competent to carry out the professional work they undertake to do and keep their client informed of the progress of work undertaken on their behalf and of any issue which may significantly affect its quality or cost. The initial cost estimate was unrealistic and induced the Referrer to become involved in a project that was not financially viable. The Registered Person failed to advise and provide the Referrer with the information he required to be able to make informed decisions about the finances of the project.

 

Conflict of Interest

 

  1. The Registered Person failed to adequately manage a conflict of interest. This was a serious failing which demonstrated a lack of integrity. An architect is expected to disclose any conflict of interest in writing and manage it to the satisfaction of all affected parties. Express consent has to be obtained if the architect is instructed to continue to act despite the conflict. The Registered Person withheld information with regard to the conflict of interest from the Referrer. This was to the detriment of the Referrer and to the advantage of the Registered Person.

 

Skill and Care

 

  1. The Registered Person’s failures to act with due care and skill were widespread, repeated, persistent, and serious. An architect is expected to carry out their work with an appropriate level of skill and care in accordance with the terms of their engagement. The Registered Person failed to provide fundamental advice to the Referrer regarding his obligations. This exposed the Referrer to significant financial risk and potential prosecution. As a direct result of the Registered Person’s failure to advise adequately, the Referrer was required to pay a CIL penalty. The Referrer was also exposed to unnecessary risk due to the absence of a standard building contract. The Referrer was further disadvantaged by the Registered Person’s failure to issue interim payment certificates as had been agreed at the outset of the project. As a consequence, the Referrer paid for defective works which were not in accordance with the plans, or not compliant with Building Regulations. The failings were compounded by the Registered Person’s failure to produce a complete set of working drawings for the construction phase of the project.

 

 

Safeguarding Client Money

 

  1. The Registered Person made three payments for the introduction or referral of work, without disclosing the arrangement to the Referrer. This was a significant and serious failing which demonstrated a lack of integrity and was dishonest. The Registered Person should have ensured that money was not withdrawn from a client account to make a payment without the Referrer’s specific written instructions. The Registered Person actions caused a significant financial loss to the Referrer which could not be recovered.

 

Planning and/or Building Regulations requirements

 

  1. The Registered Person’s failure to ensure the construction was carried out in compliance with Planning and/or Building Regulations requirements was a serious failing. There was a legitimate expectation that he would carry out the work competently and to professionally, and if engaging others to do that work that they should be competent and adequately supervised. The failings in respect of the building works were widespread and included departing from plans, poor workmanship, and inadequate supervision. Work commenced on site before planning requirements had been addressed, exposing the Referrer to risk. The Registered Person actions caused significant delays, the need for extensive remedial work and financial loss.

 

Decision on Sanction

The Committee’s Approach

  1. The Committee took into account its previous findings and the submissions made by the Presenter. The Presenter did not make a “bid” for any particular sanction and acknowledged that there is no requirement to impose a sanction in every case. He outlined possible aggravating factors but also invited the Committee to take into account the fact that the Registered Person has no previous disciplinary history.

 

  1. The Committee took into account the Sanctions Guidance. The Committee was mindful that the purpose of any sanction is not to punish the Registered Person 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.

 

  1. 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. In determining what sanction, if any, to impose the Committee identified the following aggravating factors:

 

i. The absence of insight, remorse, and apology;

ii. The absence of any evidence that the Registered Person has taken steps towards remediation;

iii. The actual harm and risk of harm caused to the Referrer as a consequence of the Registered Person’s lack of skill and care, lack of integrity and dishonesty. The Referrer suffered financial loss, the risk of further financial loss, reputational damage and prosecution as a direct consequence of the Registered Person’s actions. Contractors on the site were also exposed to an unwarranted risk of harm due to abide by the Health and Safety requirements.

iv. The lack of integrity and dishonesty persisted for a significant period.

v. The poor conduct and lack of due skill and care was widespread, repeated and protracted; it was not a one-off isolated incident.

 

  1. The Committee was unable to identify any mitigating factors, other than the Registered Person’s previous unblemished disciplinary record.

 

 

No Sanction

 

  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 considered 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. Exceptional circumstances are unusual, special, or uncommon. The Committee determined that neither the background to this case nor the specific circumstances that arose, could be properly characterised as exceptional. Furthermore, the Committee concluded that 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.

 

Reprimand

 

  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 which indicate when a Reprimand may be the appropriate and proportionate sanction.

 

  1. The Committee noted that harm and the risk of harm was caused to the Referrer. The risk of harm was also caused to the contractors on the site. In the absence of insight, remorse, and remediation the Committee was unable to exclude the possibility of harm to the wider public. The Registered Person demonstrated poor judgment for a prolonged period. In these circumstances, the Committee concluded that 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, a Reprimand would undermine these objectives.

 

  1. Therefore, the Committee concluded that a Reprimand would be neither appropriate nor proportionate.

 

Penalty Order

 

  1. The Committee considered whether the imposition of a Penalty Order would effectively reinforce the importance of complying with the Code and acting with honesty and integrity at all times. The Committee concluded it would not. In the circumstances of this case, although the Registered Person stood to derive a financial benefit from his conduct, the Committee concluded that a financial penalty would add nothing of materiality to the significance of public censure in the form of a Reprimand.

 

  1. The Committee concluded that a Penalty Order would be insufficient to protect the public and meet the wider public interest given the nature and gravity of the Registered Person’s conduct and behaviour.

 

Suspension Order

 

  1. The Committee next considered a Suspension Order. A Suspension Order would re-affirm to the Registered Person, the profession, and the public the standards expected of a registered architect. The Committee noted that a Suspension Order would prevent the Registered Person from using the title of ‘Architect’ during the suspension period, which would therefore provide a degree of protection to the public. However, the Committee took the view that given the nature and seriousness of the Registered Person’s persistent dishonesty, lack of integrity, and lack of due skill and care, a Suspension Order would not be sufficient to maintain public confidence in the profession and the regulatory process. It would also not have a deterrent effect on other Registered Persons. Furthermore, the persistent and wide-ranging nature of the Registered Person’s behaviour indicates an attitudinal problem that may be entrenched.

 

  1. In reaching the conclusion that a Suspension Order would be insufficient to protect the public and the wider public interest, the Committee took into account the Registered Person’s non-engagement during the hearing and the observation of Mitting J, in NMC v Parkinson [2010] EWHC 1898 where he stated:

 

“A [practitioner] found to have acted dishonestly is always going to be at severe risk of having his or her name erased from the register. A [practitioner] who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct [A Striking Off Order].”

 

  1. The Committee noted that there was no evidence of insight, remorse, or apology. There was no evidence to support a finding that the issues were unlikely to be repeated and no evidence that the Registered Person is willing to resolve or remedy his failings. The Committee concluded that in the absence of constructive engagement from the Registered Person, there was no information available that offered the Committee the opportunity to exercise leniency.

 

  1. Having determined that a Suspension Order does not meet the objectives of public protection and upholding the wider public interest the Committee determined that the Registered Person’s name should be removed from the Register.

 

Erasure

 

  1. The Committee acknowledged that erasure is a sanction of last resort and should be reserved for those categories of cases where there is no other means of protecting the public or the wider public interest. The Committee decided that the Registered Person’s case falls into this category because of the nature and gravity of his dishonest conduct, lack of integrity, unprofessional behaviour, and the high risk of repetition. The Registered Person’s dishonest conduct was repeated, and the Committee concluded that any lesser sanction would undermine public trust and confidence, as members of the public and the profession are entitled to expect honesty and integrity from registered architects at all times. The Committee concluded that as a consequence of these features and the absence of any insight and remediation, the Registered Person’s behaviour is fundamentally incompatible with continued registration as an architect.

 

  1. The Committee had regard to the impact erasure may have on the Registered Person but concluded that his interests were significantly outweighed by the Committee’s duty to give priority to the significant public interest concerns raised by this case.

 

  1. In these circumstances, the Committee decided that the only appropriate and proportionate order is erasure.