Mr Ronald Robert McGregor

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

RONALD ROBERT McGREGOR (076574K)

Held in person at

Novotel Hotel
181 Pitt Street
Glasgow
Scotland
G2 4DT

On

30 January to 3 February 2023

———-

Present

 Sadia Zouq (Chair)

 Stuart Carr (Architect Member)

Alastair Cannon (Lay Member)

 

———–

 

In this case, the Architects Registration Board (“ARB”) was represented by Mr Tom McEntegart of Anderson Strathern LLP (“the Presenter”).

Mr Ronald Robert McGregor (“the Respondent”) attended this hearing and was represented by Ms Kirsty Tyre of Axiom Advocates, instructed by Levy and McRae Solicitors LLP.

 

The Allegation

1. The Respondent is charged by ARB with UPC and SPI, and the Committee is responsible for deciding whether the allegation is found proved, or not.
2. The Charge comes before the Committee further to its jurisdiction under the Architects Act 1997, section 15(1)(a) to make a disciplinary order if a Respondent has been guilty of UPC and/or SPI.
3. The matters asserted by ARB to have occurred relate to the extension of the Complainant’s property (“the Property”).
4. It is alleged that the Respondent:

1. Failed to provide adequate terms of engagement, contrary to Standard 4.4 – 4.6 of the Architects Code 2010.

2. Failed to act with due skill and care in respect of the design of the basement of the property and the design of the drainage in that:

a) He produced a design without commissioning a topographical survey to establish that the ground conditions where the extension to be constructed was partly below ground level and relied on a waterproof barrier;

b) He produced a design without instructing and examining trial pits to identify the water table and the condition of the existing ground where the extension to be constructed was partly below ground level and relied on a waterproof barrier;

c) He did not undertake revised drawings to show how to achieve continuity of waterproofing and tanking when it was identified the foundations were higher than he had anticipated and underpinning was necessary;

d) He did not recognise, following the underpinning, that the Original RIW Sheetseal 226 waterproofing solution could not be applied in accordance with the manufacturer’s instructions;

e) As a result of the failures at (c) – (d), above, the waterproofing and tanking as installed led to repeated flooding within the basement extension.

3. Failed to adequately carry out his duties as contract administrator in that:

a) He did not apply for an amendment to the building warrant as would have been necessary in light of particular 2(c), above;

b) He did not provide revised drawings to the Contractor in relation to particular 2(c), above, to show how continuity of waterproofing and tanking was to be achieved;

c) He allowed the Contractor, following the underpinning, to make decisions about the requirements for waterproofing and tanking when it was the Respondent’s responsibility to do so;

d) He did not carry out sufficiently thorough inspections to ensure the works complied with the contract drawings and materials used were in conformity with the specification;

e) He signed the Practical Completion Certificate dated 26 October 2018 when he was not aware what tanking material the Contractor had used in respect of the waterproofing;

f) He did not keep the Complainant informed of issues arising during the construction of the extension prior to signing the Practical Completion Certificate;

g) He did not discuss with the Complainant the effect of deleting the Liquidated Damages clause from the contract particulars in respect of delays to the agreed timescale for the project.

Preliminary Applications

Application to hear part of the hearing in private

5. The Respondent provided documentation in relation to his health and private life. As such, the Committee was advised by the Legally Qualified Chair (“LQC”) of Rule 21 of the Professional Conduct Committee Rules 2019 (“the Rules”) and accepted that advice. The Committee concluded that those parts of the hearing that related to the Respondent’s health and private life would be heard in private.

 

Background

6. The Respondent registered with the ARB on 26 April 2010. The Respondent is an architect at McGregor Garrow Architects Limited (MGA).
7. The Complainant instructed the Respondent via his practice at MGA in March 2016 in relation to the development of a double storey extension at their Property. This involved the construction of a basement room to the rear of the Property, underneath the existing ground floor. The construction of the basement room required the excavation of part of the Property’s foundations, resulting in new foundations being constructed below the, then existing, ground level.
8. The Respondent produced drawings showing the design including a tanking arrangement and coordinated this with a Structural Engineer who provided drawings for the structure of the extension. In the Respondent’s design there were to be tanked retaining walls which contained the basement area, which were sunk up to 1.2 metres below the adjacent ground level. The Respondent’s drawings included the use of a RIW Sheetseal 226 membrane under the floor slab and in the internal and external walls. Drainage was incorporated in the Respondent’s original design proposal. The Respondent produced the original design without commissioning a topographical survey and without instructing and examining trial pits.
9. The Respondent carried out an assessment of the ground conditions during a measurement survey on 1 April 2016. The terms of engagement were provided to the Complainant via an email dated 29 March 2016. Enclosed as an attachment to the email was the RIAS document ‘Why use a Chartered Architect.’
10. In June 2017 the local authority granted a Building Warrant on the basis of the Respondent’s original drawings and his assessment of the ground conditions. On 7 July 2017 the Respondent put the project out to tender and issued drawings to four companies. The Respondent accepted on 16 August 2017, on behalf of the Complainant, the tender of AC Construction (Ellon) Limited as the Contractors. A Minor Works Building Contract was entered into on 8 January 2018. This contract did not have any terms regarding assignment of the parties’ rights and obligations, and the Respondent entered ‘n/a’ in clause 2.9 regarding liquidation damages.
11. Commencement of works by the Contractor began in mid-January 2018. After the commencement of construction, the Respondent and the engineer’s designs had to be changed as the existing foundations were higher than the depth of the proposed basement floor level. The existing inner wall and some of the existing external walls therefore needed to be underpinned. The Respondent obtained new drawings from the engineer and issued Architect’s Instruction No. 1 dated 19 January 2018, requiring the Contractor to undertake the underpinning work. As part of this underpinning a new buttress wall was installed which was approximately 300mm thicker than anticipated which had the effect of decreasing the area of the basement rooms. The Respondent did not undertake revised drawings to show how to achieve continuity of waterproofing and tanking after it was discovered the foundations were higher than he had anticipated and underpinning was necessary.
12. The Respondent did not apply for an amendment to the Building Warrant prior to Practical Completion.
13. Between February and August 2018, the Respondent issued Interim Certificate Number 1 to 6 for payment to be made to AC Construction (Ellon) Ltd. A winding up order was made in respect of AC Construction (Ellon) Ltd on 21 March 2018. The Respondent was aware of the liquidation by 26 June 2018. He did not advise the Complainant of the contractor’s liquidation.
14. On 26 October 2018, the Respondent signed the Practical Completion Certificate confirming that practical completion of the works had been achieved and issued Interim Certificate Number 7. In respect of that Certificate the Respondent instructed via an email to the Complainant to pay the sum of £11,435.47 to ACC Joiners and Builders. ACC Joiners and Builders were not a party to the building contract. AC Construction (Ellon) Limited were unable to carry out the original contract following the appointment of the liquidator in March 2018.
15. In November 2018 water ingress was found in the basement. The Contractor pumped the flood water out of the property and dug a trench along the rear of the property to alleviate further water ingress. Inspection hatches in the walls and floor of the extension were also opened up. In October 2019 there was further internal flooding of the property.
16. The Complainant submitted a complaint to the ARB on 3 June 2020.
17. The ARB appointed an Independent Inquirer, Mr Robert Johnston, to visit the Property and to prepare a report following his inspection.

 

Evidence

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

• The Report of ARB’s Solicitor dated 29 November 2022;
• The Complainant’s witness statement dated 17 October 2022;
• The Inquirer’s Report and Appendices dated 26 October 2022;
• The Inquirer’s comments on the Respondent’s response to Particulars of Allegation 2(a) and 2(b) dated 27 January 2023;
• ARB’s evidence documents exhibited in the main bundle;
• Expert Report of Gordon Gibb, Architect, dated 4 June 2021 and Appendices;
• Supplementary Expert Report of Gordon Gibb, dated 26 November 2021 and Appendices;
• Expert Report of David Dunbar dated 17 September 2021;
• Respondent’s Answers in response to the ARB’s Solicitor’s Report to the ARB;
• Respondent’s witness statement dated 20 January 2023;
• Seven testimonials provided on behalf of the Respondent;
• General Practitioner letter dated 23 January 2023, submitted on behalf of the Respondent;
• Respondent’s revised Terms of Engagement document;
• Email dated 29 September 2017 from the Respondent to the Complainant attaching the Minor Building Works Contract, Contract Conditions and Health and Safety information from the architect;
• Joint Minute of Agreed Facts.

 

1. The Committee also heard live evidence from:

• The Complainant;
• The Inquirer;
• The Respondent;
• Mr David Dunbar.

 

Decision on Facts

Legal Advice

20. The Committee accepted the legal advice given by the Legally Qualified Chair (“LQC”) which is a matter of record. The Chair reminded the Committee that on the disputed facts, the onus of proof was on ARB and that the standard of proof was the civil standard of the balance of probabilities. In determining any facts, the Committee should consider the evidence in the round and was entitled to draw reasonable inferences from established facts but should not speculate. The Committee was mindful that the more serious the allegation, the more cogent the evidence should be to find it proved. The Committee was advised of the caution to be applied when considering the confidence and demeanour of a witness and referred to the case of Dutta v GMC (2020) EWHC 1974 (Admin). The Committee noted the Inquirer’s, Mr Dunbar’s and Mr Gibbs’s evidence is that of an expert, and their duties of independence. It took into account that Mr Gibbs had not given evidence and therefore his evidence is untested. It also considered that the Respondent can provide opinion evidence based upon his specialist knowledge and experience as an architect, but that the Respondent did not owe the same paramount duty to the Committee as the Inquirer. The Committee had regard to the guidance published by the ARB and to the content of the Architects Code: Standards of Conduct and Practice (“the Code”).
21. In reaching its decisions, the Committee carefully considered the live evidence of the Complainant, Inquirer, Respondent and Mr Dunbar, together with the documents set out at paragraph 18 above. It considered the submissions made by the Presenter on behalf of the ARB and by Ms Kirsty Tyre on behalf of the Respondent.
22. The Committee made the following finding of facts.

 

Particular 1

The Respondent failed to provide adequate terms of engagement, contrary to Standard 4.4 to 4.6 of the Architects Code 2010;

23. Standard 4.4 of the Architects Code 2010 (“the Code”) states that an architect is expected to ensure that they enter into a written agreement with the client which adequately covers a number of matters:

 

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
• your complaints-handling procedure (see Standard 10), including details of any
• special arrangements for resolving disputes (e.g. arbitration).

 

4.5: Any agreed variations to the written agreement should be recorded in writing.

4.6: You are expected to ensure that your client agreements record that you are: registered with the Architects Registration Board and that you are subject to this Code; and that the client can refer a complaint to the Board if your conduct or competence appears to fall short of the standards in the Code.

 

24. The Committee had regard to the terms of engagement that were provided in an email from the Respondent dated 29 March 2016 and the attached RIAS document ‘Why use a Chartered Architect’. It considered that the terms of engagement did not comply with Standard 4.4 of the Code as it did not cover all relevant points as required. What was sent was not set out as an agreement inviting a signature. What is more, it did not include any terms in relation to the termination of the contact or the way in which disputes would be handled nor did it set out the requirements in relation to ARB registration, handling complaints or provide details in relation to the Respondent’s indemnity cover.
25. In his witness statement the Respondent accepted that not all of the points of detail of Standard 4 of the Code were expressed in the terms of engagement. He stated that it was “the opinion of the practice at the time” that the RIAS document ‘Why use a Chartered Architect’ covered the terms of professional indemnity insurance, termination, dispute resolution, complaints handling and detailed that he is registered with the ARB. In his oral evidence the Respondent stated that at the time he considered that he had provided sufficient information to a client regarding complaints. However, the Respondent accepted that the not all required information was provided to the Complainant in a single document and that he has since revised his terms of engagements to fully incorporate the requirements of Standard 4.
26. The Inquirer confirmed the provisions relating to, for instance, termination, insurance cover and complaints handling were not covered by the inclusion of the RIAS document and that there was no single document from the Respondent which complied with the requirements of Standard 4.4 to 4.6 of the Code.
27. The Committee took into account the Respondent’s admission. It considered the email of 29 March 2016 and the requirements of Standard 4 of the Code. The Committee was satisfied that the Respondent did not provide adequate terms of engagement. Further, the Committee determined that the Respondent acted in breach of Standard 4 of the 2010 Code.

 

Particular 2

The Respondent failed to act with due skill and care in respect of the design of the basement of the property and the design of the drainage in that:

2 (a) He produced a design without commissioning a topographical survey to establish that the ground conditions where the extension to be constructed was partly below ground level and relied on a waterproof barrier.;

28. The Respondent denied Particular 2(a). It was an agreed fact that the Respondent produced the original design without commissioning a topographical survey.
29. The Inquirer in his evidence explained that as the extension needed a waterproof barrier due to being partially constructed below ground level, a topographical survey should have been instructed. Without the topographical survey the Respondent could not determine with accuracy the extent of the waterproof barrier required. The Inquirer stated in his Supplementary Opinion, “this would be particularly critical at the sides and front of the extension as parts of the extension rose above ground level. A topographical survey would also be critical in the design of the finished ground levels around the extension in order to ensure that adequate drainage was possible, and that surface water was directed away from the walls of the extension and that the threshold of the lower-level entrance door was configured to prevent the ingress of surface water”.
30. The Respondent’s position was that a topographical would not have provided him with any information beyond the information he obtained from the site assessment undertaken. The Respondent relied upon the position of his expert, Mr Dunbar, in this respect. In his report, Mr Dunbar stated, “it is my view that MGA’s assessment of the likely foundation levels was reasonable/competent…” In his oral evidence Mr Dunbar stated that a topographical survey “determines levels and points on a site. The Respondent had a methodology of obtaining this. That methodology could have achieved desired result. He achieved sufficient information, and a topographical survey was not required.” In his evidence to the Committee, Mr Dunbar stated that whilst he had some criticisms of the drawing originally produced by the Respondent, it did however contain sufficient to enable the Contractor to work out the necessary heights and levels required. It was accepted by Mr Dunbar that, unlike the Inquirer, he had not undertaken a site visit.
31. The Committee noted that the Inquirer and Mr Dunbar held opposing opinions on the commissioning of a topographical survey.
32. The Committee preferred the opinion of Mr Dunbar. A measurement survey was carried out in April 2016 which provided information on heights and confirmed the ground level where the extension was to be built. The Respondent stated, “from the information, it was clear that the floor level of the extension would be below ground level and that the extension would rely on a waterproof barrier”. The Respondent had also performed a series of spot levels. The Respondent told the Committee that he had obtained all crucial measurements and checks for him to design the extension correctly and that the measurement survey provided an assessment of the ground conditions. Had he instructed a topographical survey it would not have added more to what he had already established. In Mr Dunbar’s opinion, the steps undertaken by the Respondent were sufficient for the purposes of amounting to the effect of the equivalent of a topographical survey.
33. In the Committee’s view the relevant failure was not whether a topographical survey had been commissioned but whether the information obtained by the Respondent was sufficient. The Committee was satisfied that the essential information required to establish the ground conditions where the extension was to be constructed had already been achieved by the Respondent and a topographical survey was not required. Accordingly, the Committee found Particular 2(a) not proved.

 

2(b) He produced a design without instructing and examining trial pits to identify the water table and the condition of the existing ground where the extension to be constructed was partly below ground level and relied on a waterproof barrier;

34. The Respondent denied Particular 2(b). It was an agreed fact that the Respondent produced the original design without instructing and examining trial pits.
35. The Respondent stated that the measurement survey undertaken provided an assessment of the ground conditions. “The ground did not appear to be affected by water saturation. A review of the adjacent properties’ gardens, most of which are at a lower level, indicated no apparent water risk concerns…the SEPA Flood Map that I always check did not suggest a risk of flooding.” In hindsight the Respondent stated he would have dug trial pits and would do so on a similar project in the future.
36. The Inquirer stated in his report that trial pits were required. “In the absence of trial pits and without survey of the sub-floor it is unlikely that any ‘assessment’ would provide sufficiently accurate information about the ground conditions.” In his Supplemental Opinion, the Inquirer stated “…trial pit or pits dug to expose the top of the existing foundation would have determined the actual height of the foundation and would have informed the engineer’s design of the foundations”. This was the first reference in any of the documentary material placed before the Committee about the possibility of pits drug specifically dug to expose the top of the existing foundations. ARB’s instruction to the Inquirer did not seek an opinion from him about whether there had been a failing by the Respondent in not establishing the depth of the foundations before the design of the construction. Particular 2(b) makes no mention of foundations.
37. When asked by the Committee of the preferred method to establish certainty regarding the behaviour of ground water and flooding, the Inquirer referred to the Scottish Environmental Protection Agency (“SEPA”) flood maps as the first step. The Inquirer had looked at the SEPA flood maps for the Property and no risk was shown. He stated, “If the SEPA flood maps showed risk of flooding, then you would dig trial pits”. The Inquirer stated that a single trial pit would assist to establish water movement, however, a series of trial pits dug over a span of time would be required to take account of seasonal changes. When asked by the Committee if this was appropriate for the Property as given that the project would be on hold until such a series of trial pits had been dug, he replied “I don’t think given the scale of the project that would have been necessary.”
38. Mr Dunbar stated in his report that trial pits “may well have provided an additional level of information which would have informed MGA’s design.” However, he did not consider that not instructing trial pits “fell below the standard of care that could reasonably be expected of an ordinarily competent architect acting with an ordinary level of competence”. In his evidence to the Committee Mr Dunbar stated that digging trial pits is a relatively straightforward and inexpensive and would, in this case, have added to the existing knowledge base of the ground conditions. He stated that trial pits would have established the depth of the existing foundations, discovered the requirements in relation to the underpinning, determined the type of waterproof barrier and suitable drainage required. However, Mr Dunbar maintained that it was not a failure to not have instructed trial pits.
39. Having considered the Inquirer’s and Mr Dunbar’s evidence, the Committee could not be satisfied that the Respondent had failed to act with due skill and care by producing a design without instructing and examining trial pits. In the Committee’s view the Respondent had taken steps to identify the water table and the condition of the existing ground by analysing the adjacent properties, the ground conditions, and checking the SEPA flood maps. The Respondent and the Inquirer agreed that the SEPA flood maps showed no risk of flooding at the Property. Had there been, the Respondent would have instructed trial pits. The Committee was satisfied, having considered all the evidence that, on the balance of probabilities, ARB had not discharged its burden of proof in respect of Particular 2(b). Accordingly, Particular 2(b) was found not proved.

 

2(c) He did not undertake revised drawings to show how to achieve continuity of waterproofing and tanking when it was identified the foundations were higher than he had anticipated and underpinning was necessary;

40. The Respondent admitted this particular. His admission was an agreed fact. In his witness statement the Respondent stated, “I regret that I did not produce a set of revised drawings to fully show how to achieve continuity of waterproofing/tanking when it was identified the foundations were higher than anticipated, and that underpinning was necessary…I only provided a sketch drawing for the Contractor with regards to continuity of the waterproofing.” The Committee noted that the Respondent had produced what he described as a sketch document for the purposes of discussion with the Contractor.
41. In his report the Inquirer stated, “The sketch drawing, which included no notes or specification about how continuity of the waterproofing system was to be achieved, was handed to the contractor, who deemed it unnecessary. This hardly accords with the Architect’s contractual obligation under clause 2.4 of the contract to “issue.. further information and instructions necessary for the proper carrying out of the Works…” or with good practice generally….I have seen no evidence that sufficient information was provided to the contractor by the Architect to allow continuity of waterproofing/tanking to be achieved.”
42. The Respondent’s own expert, Mr Dunbar, accepts that while the sketch drawing was provided to the Contractor, there was limited annotation on the drawings such as notes, specification and dimensions. He accepts that Mr Gibb is correct that the contract drawings were not updated.
43. The Committee took into account the Respondent’s admission, the Inquirer’s, Mr Dunbar’s and Mr Gibbs’s evidence and found Particular 2(c) proved.
44. Standard 2 deals with competence. Standard 2.1 states that an architect is meant to be competent to carry out the professional work they undertake to do. The Respondent’s omission, in not undertaking revised drawings to show how to achieve continuity of waterproofing and tanking, demonstrated a failure comply with this requirement of the Code. The sketch drawing handed to the Contractor did not have the necessary details, notes or specification to allow the Contractor to install the relevant waterproofing and tanking.

 

2(d) He did not recognise, following the underpinning, that the Original RIW Sheetseal 226 waterproofing solution could not be applied in accordance with the manufacturer’s instructions;

45. The Respondent admitted this particular. His admission was an agreed fact. In his witness statement the Respondent stated, “I regret that I did not realise that the original tanking material could not be applied in accordance with the manufacturer’s instructions, where the underpinning had been carried out. I made the mistake, at a time when there were personal circumstances, of accepting the Contractor’s verbal assurances that the tanking could still be applied in accordance with the manufacturer’s instructions. It was my responsibility to make the Contractor aware that the solution could not be applied as intended. Therefore, I admit allegation 2(d).”
46. The Joint Minute of Agreed Facts states in relation to Particular 2(d), “The Respondent did not recognise, following the underpinning, that the Original RIW Sheetseal 226 waterproofing solution could not be applied in accordance with the manufacturer’s instructions. This was apparent from a site visit by the Respondent on 26 February 2018 when it was apparent that the dampproof membrane was short along the back wall. The Respondent saw the work which had been done in applying the waterproofing and tanking solution but failed to identify any issues with the product which had been installed and how the tanking had been installed. The waterproofing and tanking in the basement at the time of the Respondent’s visit to the Property on 26 February 2018 did not comply with the manufacturer’s guidelines. In order to comply with Building Regulation 9 and Mandatory Standard 3.4, the dampproof membrane required to be continuous, carried up the inside face of the external wall and lapped with the wall dampproof course. At the time of the visit on 26 February 2018 it was apparent that it was not possible to overlap the dampproof course to make a continuous dampproof membrane with the existing dampproof membrane.”
47. The Inquirer stated that initially the RIW Sheetseal 226 would have been an appropriate design solution for the waterproofing/tanking. However, following the necessary underpinning specified by the engineer, the RIW Sheetseal 226 “could not possibly be applied in accordance with the manufacturers’ recommendations. In my opinion, it then ceased to be an appropriate design solution and the Architect should have specified an alternative material which was better suited to the conditions which then prevailed on site. Given the extremely uneven surfaces following the underpinning, a membrane type of waterproofing/tanking may no longer have been suitable..…Other waterproofing/tanking materials are available which have the consistency of paste – which may be have been better suited to the very uneven surfaces. Again, the respective manufacturers would have to be consulted about compatibility with the material already laid.”
48. Based on the Respondent’s admission, the agreed facts and the Inquirer’s evidence, the Committee found Particular 2(d) proved.
49. The Committee considered whether the Respondent’s failure at Particular 2(d) amounted to a breach of Standard 2.1 of the Code. In the Committee’s view the Respondent ought to have identified the appropriate solution when the ground conditions turned out to be different from what he had assessed. Without a proper understanding of the waterproofing product, there would then be a danger it would not be properly applied and lead to flooding, which is what transpired. The Inquirer’s report identified that the Respondent’s answers to the Inquirer demonstrated that he did not understand the product which he had specified. Accordingly, the Committee found Particular 2(d) proved. The Committee determined that the Respondent’s failure breached Standard 2.1 of the Code.

 

2(e) As a result of the failures at (a) – (d), above, the waterproofing and tanking as installed led to repeated flooding within the basement extension;

50. The Respondent denied Particular 2(e). The Committee noted the wording of Particular 2(e) did not allow for a finding where one or more sub-particulars had not been proved. The Committee had not found proved Particulars 2(a) and 2(b). The Committee sought legal advice in camera from the Legally Qualified Chair. She referred the Committee to rule 16(b) “The Hearing Panel may permit the amendment of a Charge, but if such an amendment is permitted and the Respondent has been materially prejudiced he or she shall be entitled to an adjournment,” and provided the following legal advice:

“You have an inherent power to make amendments to the Allegation, at any time prior to makings any findings of fact, provided that such amendments do not cause injustice to the Respondent or undermine his right to a fair hearing.  The right to a fair hearing includes a Respondent being given sufficient notice of the Allegation and sufficient notice of any subsequent amendments. You have a discretion to amend an Allegation. There are two general principles regarding amendments to an Allegation (1) early notice of proposed amendment is less likely to cause injustice than no notice or late notice of proposed amendments (2) typographical errors, minor changes, matters of clarification and further particularisation are less likely to cause injustice than substantial alterations or amendments that widen the scope.

It is within the power of a Committee to amend allegations to avoid undercharging, and in furtherance of its public interest obligations. In PSA v HCPC and Doree [2017] EWCA Civ 319 it was said that amendments can be made to the wording of charges very late on in the proceedings and even after the Committee has retired. However, the later on such amendments are made, the more likely it is that some material unfairness will be caused to the Respondent. This case also confirmed that the allegations should not be tailored to meet the evidence that emerges against a Respondent during the hearing. That must be distinguished from cases where clarifying matters that were evident from the evidence.

In PSA v. the NMC and Jozi [2015] EWHC 764 (Admin), Justice Singh focused on the decision of the Court of Appeal in Ruscillo (Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo, [2004] EWCA Civ 1356) and in particular, he quoted paragraph 80 which concluded as follows  “…The disciplinary tribunal should play a more proactive role than a judge presiding over a criminal trial in making sure that the case is properly presented and that the relevant evidence is placed before it.”

51. In conclusion the Chair advised the Committee that amending an Allegation was a balancing exercise and the Committee must always bear in mind ARB’s role of public protection, maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour on the part of Architects.
52. The legal advice was repeated in open session and prior to the Committee concluding its deliberations on facts, UPC and SPI.
53. Following the legal advice, the Committee then heard submissions from the Presenter on behalf of the ARB, and Ms Tyre on behalf of the Respondent.
54. The Presenter applied to amend Particular 2(e) to replace “(a) – (d)” with “(c) – (d)”. The Presenter submitted that it was not necessary to include Particulars 2(a) and 2(b) as the failures alleged in those particulars did not result in the failure of the waterproof and tanking solution. The Presenter submitted there was no injustice or prejudice caused to the Respondent by the Committee in making the amendment, that it was a technical amendment and the Respondent had admitted Particulars 2(c) and 2(d). Ms Tyre took instructions from the Respondent. She did not oppose ARB’s application to amend Particular 2(e) and submitted that if the amendment was granted there would be no prejudice resulting.
55. The Committee accepted the legal advice. It determined that it would amend Particular 2(e) to reflect the amendment sought by ARB. The Respondent did not object to the proposed amendment and accepted there was no material prejudice to his case which had been prepared on the basis that only Particulars 2(c) and 2(d) could have led to the failing alleged in Particular 2(e). The Committee agreed there was no unfairness in allowing the amendment. Particular 2(e) was therefore amended as follows:

 

2(e) As a result of the failures at (c) – (d), above, the waterproofing and tanking as installed led to repeated flooding within the basement extension.

 

56. The Committee was satisfied that the failings found proved at Particulars 2(c) and 2(d) led to the deficient installation of the waterproofing and tanking which caused the repeated flooding within the basement extension. Accordingly, the Committee found Particular 2(e) proved.

 

Particular 3

Failed to adequately carry out his duties as contract administrator in that:

3(a) He did not apply for an amendment to the building warrant as would have been necessary in light of particular 2(c), above;

57. It was accepted that the Respondent was carrying out his duties as a contract administrator. The Committee had regard to the requirements of contract administration as set out in the Inquirer’s report and appendices. This included site inspections, keeping a client informed and issuing instructions.
58. The Respondent admitted not applying for an amendment to the Building Warrant following the structural engineer’s redesign and prior to completion. His admission was an agreed fact. In his witness statement the Respondent stated, “it was always my intention to submit the amendment prior to applying for completion, but I accept that if it had been submitted earlier then Building Standards would have had an opportunity to assess the continuity of the waterproofing solution.”
59. On 20 April 2018 the Respondent was informed by the Building Standards Officer at the Local Authority that additional works carried out for the underpinning required an amendment to the Building Warrant prior to completion. The Respondent stated in his evidence that he held off from submitting the application as further changes may be required and incorporating all of these into one application would save cost. In an email dated 31 March 2020, the Building Standards Manager at the Local Authority, reviewed the photographic evidence provided by the Complainant and stated “this does not accord with the design within the approved building warrant. Any deviation from the building warrant design, should have been submitted as an Amendment to Warrant for approval prior to continuing the work.”
60. In the Inquirer’s opinion, following the underpinning, the conditions of the original drawing no longer applied, and the Respondent should have made an application for an amendment to the Building Warrant. The Inquirer stated that the absence of an amendment resulted in the works as executed not complying with Building Standards.
61. The Committee accepted the Inquirer’s opinion. It was clear from the emails of the Building Standards Officer and Building Standards Manager at the Local Authority the requirement for an amendment to the Building Warrant arose following the underpinning. Notwithstanding this, the Practical Completion Certificate was signed by the Respondent on 26 October 2018 without an amendment to the Building Warrant being applied for and no amended Building Warrant was ever applied for by the Respondent.
62. By reason of the Respondent’s admission which is consistent with the documentary evidence before it, the Committee found Particular 3(a) proved.
63. The Committee considered Standard 6.1 which states that an architect is expected to carry out their work promptly and with skill and care and in accordance with the terms of their engagement. It was noted that an amendment to the Building Warrant could have been applied for at any time prior to the project’s completion, however, the amendment to the Building Warrant was simply not applied for and revised drawings (as found proved in Particular 2(c)) would have been required for that amendment application. The Committee was therefore satisfied that Particular 3(a) was proved, and the Respondent’s failure breached Standards 6.1 of the Code.

 

3(b) He did not provide revised drawings to the Contractor in relation to particular 2(c), above, to show how continuity of waterproofing and tanking was to be achieved;

64. The Respondent admitted Particular 3(b). His admission was an agreed fact. The Respondent had already admitted, and the Committee found proved, that he did not undertake revised drawings to show how continuity of waterproofing and tanking was to be achieved when it was identified the foundations were higher than he had anticipated and underpinning was necessary (Particular 2(c)).
65. In his witness statement and evidence, the Respondent stated that he provided a sketch drawing for the Contractor with regards to continuity of the waterproofing, but that the Contractor was dismissive about the sketch.
66. The Inquirer stated that while the engineer was responsible for the design of the underpinning, it was the Respondent who was responsible for the revised design of the waterproof tanking. He further adds that the Respondent’s sketch drawing had no specification or notes about how the waterproof system was to be achieved. Further, the Inquirer states that the sketch did not accord with the Respondent’s contractual commitment to “issue further information and instructions necessary for the proper carrying out of the Works”.
67. Mr Gibb stated in his supplementary report that there was no Architects Instruction issued in respect of the sketch drawing to detail the specification of the works and what was on it appears to be unworkable. There were no drawings produced to show how the tanking and waterproofing was to be dealt with and that these were necessary to show how the tanking was to be dealt with as the original design could not provide the necessary solution following the underpinning works.
68. The Committee had regard to the sketch drawing and considered that it did not provide the Contractor with sufficient information to allow continuity of waterproofing/tanking to be achieved. It considered that the Respondent had effectively delegated the decision-making about the waterproofing to the Contractor and that he had failed in his duty as contract administrator. Having considered the evidence of the Inquirer and the experts, and taking into account the Respondent’s admission that he did not provide the Contractor with revised drawings, the Committee found Particular 3(b) proved.
69. The Committee was satisfied that the Respondent had breached Standard 2.1 of the Code because the original design and waterproofing specified no longer provided the necessary waterproofing as the levels and the unevenness of the surfaces meant that a seal against water ingress could not be properly formed, but no revised drawing with new specifications and details for waterproofing was provided to the Contractor. The sketch drawing was insufficient and disregarded by the Contractor.

 

3(c) He allowed the Contractor, following the underpinning, to make decisions about the requirements for waterproofing and tanking when it was the Respondent’s responsibility to do so.

 

70. The Respondent admitted Particular 3(c). His admission was an agreed fact. The Committee took into account the Respondent’s admission and its findings in relation to Particulars 2(c) and 3(b). The Committee considered the Respondent’s answers to the Inquirer in which he detailed his discussion with the Contractor:

“Understanding that the tanking system was a crucial element, I took the sketch drawing to site specifically for discussion with the Contractor. During that conversation, I showed him the sketch drawing and made it clear that the tanking should be extended over the underpinning concrete, in accordance with the manufacturer’s instructions – as was stated on the Building Warrant approved drawings. Therefore, I was fully engaged in coordinating the structural engineer’s information with the architectural drawings.

 

When I questioned whether the tanking system could still be installed as proposed, the Contractor remained confident in their abilities to install it.  I handed the sketch drawing to him, but he made it clear that, in his opinion, the drawing wasn’t necessary. Had any concerns about the tanking system been raised at that point, or any other point by the Contractor, I would have been fully involved in agreeing a solution.”

 

71. The Inquirer expressed concern about the responsibility for the specification of the works. The Inquirer stated:

“again he seemed to devolve the decision about the crucial waterproofing to the contractor and suggested that the responsibility for concerns about the tanking system then lay entirely with the contractor.”

72. In the Committee’s view the Respondent had clearly understood that the tanking system and waterproofing were crucial elements, yet he was content to leave decisions about these important aspects to the Contractor. The Committee was satisfied that the Respondent had failed to carry out his duty as contract administrator by allowing the Contractor to make decisions about the requirements for waterproofing and tanking following the underpinning when it was his responsibility to do so. Accordingly, the Committee found Particular 3(c) proved. The Committee considered the Respondent’s delegation of duties breached Standards 2.1 and 6.1 of the Code.

 

3(d) He did not carry out sufficiently thorough inspections to ensure the works complied with the contract drawings and materials used were in conformity with the specification;

73. The Respondent admitted Particular 3(d). His admission was an agreed fact.
74. The Inquirer stated that the Respondent should have carried out regular and thorough inspections to ensure that the works complied with the drawings (albeit that in respect of the required revised drawings, these were not provided). The Inquirer identified that the performance and application of the RIW Sheetseal 226 was critical to the waterproofing of the basement storey and that the Respondent should have identified, as the result of his inspection on 26 February 2018, whether or not the Contractor had not installed the specified product. The photographs showed that the DPM did not have adequate material for an effective overlap to be formed along the back wall, potentially leading to water ingress. The Respondent should have also identified whether the product was being installed in accordance with the manufacturer’s recommendations.
75. The Inquirer, Building Standards Manager, Mr Gibb, and Mr Dunbar agreed that it should have been evident to the Respondent that the tanking material installed was not the tanking material specified. The Committee considered that a thorough inspection by the Respondent should have identified whether the correct material had been used. However, in this case, ARB had accepted as a fact that it had not been established whether the wrong material had been used.
76. The Committee noted and accepted the evidence of the Inquirer and the experts that the Respondent should have identified that the tanking was not installed correctly. Mr Dunbar and Mr Gibb agree that this made it impossible for an adequate seal to be made. Building Standards identified from the photographic evidence that it would not be possible to install the tanking in accordance with the building warrant design. In his role as contract administrator, the Respondent would and should have been aware, if he had conducted regular and thorough inspections, whether the work out was in conformity with the drawings and specification. The work was not in conformity with the specification and the Respondent either did not inspect with sufficient thoroughness to have observed the non-conformity, or failed to equip himself with the necessary knowledge of the product and its proper installation such as to understand and appreciate what he had observed. The Committee noted the Respondent’s oral evidence which was that he had only designed such a project requiring a tanking solution once previously, some years prior, and had not previously specified RIW Sheetsteal 226. In a project where the ground conditions had already changed and the original drawings were known to be unsuitable, it was a failure by the Respondent not to conduct such inspections as necessary to satisfy himself that the construction would deliver the necessary solution.
77. Having considered the Respondent’s admission, the evidence of the Inquirer, Mr Gibbs and Mr Dunbar, the Committee was satisfied that Particular 3(d) was proved and that the Respondent’s failure breached Standards 2.1 and 6.1 of the Code.

 

3(e) He signed the Practical Completion Certificate dated 26 October 2018 when he was not aware what tanking material the Contractor had used in respect of the waterproofing;

78. The Respondent admitted Particular 3(e). His admission was an agreed fact.
79. The Respondent signed the Practical Completion Certificate on 26 October 2018 which confirmed that work had been completed in accordance with the drawings. He did so when he was not aware what tanking material the contractor had used in respect of the waterproofing. As the contract administrator the Respondent should only have signed the Practical Completion Certificate when he had taken sufficient steps, including appropriate inspections as set out in the Committee’s findings regarding Particular 3(d) above, to satisfy himself that the work had been completed in a proper manner and that practical completion had actually been achieved.
80. The Inquirer stated that by signing the Practical Completion Certificate, this meant the Respondent believed the works had been completed in a proper and workmanlike manner, when it had not.
81. In light of the Respondent’s admission and the Inquirer’s evidence, the Committee found Particular 3(e) proved, and that the Respondent’s failure was a breach of Standards 2.1 and 6.1 of the Code

 

3(f) He did not keep the Complainant informed of issues arising during the construction of the extension prior to signing the Practical Completion Certificate;

82. The Respondent denied Particular 3(f). In his witness statement the Respondent stated “I kept the Complainant informed of any issues I was aware of during the construction. Nothing was intentionally withheld.” ARB identified a number of issues referred to by the Complainant and the Committee considered each in turn:

(i) The redesign of the extension resulting in the basement rooms being smaller due to the width of the buttress wall constructed by the contractor:

83. The Complainant’s evidence was that he was not told about this issue until after the concrete had been laid. The Respondent’s evidence was that this had come as a surprise to him too as he only found out about this after the wall had been built. The Committee accepted the Respondent’s account that the reason the Complainant had not been advised of the smaller basement rooms was because the Respondent was not aware until he discovered what had been built by the contractor. He therefore could not have advised the Complainant of something he himself was not aware of.

 

(ii) The sketch drawing the Respondent prepared and handed to the contractor in respect of the waterproofing and tanking solution in the redesign:

 

84. The Complainant’s evidence was that he became aware of the sketch only during the civil court proceedings as it was referred to in Mr Dunbar’s report. The Respondent states that the sketch was not meant for the Complainant, but the Contractor, and was not something he would share with him. The Committee had sight of the sketch drawing. It accepted the evidence of the Respondent that the sketch drawing was for the Contractor and not the Complainant.

 

(iii) The Respondent did not make the Complainant aware that the tanking material used by the contractor may not have been the RIW sheetseal 226 waterproofing solution referred to in the contract specification:

 

85. The Respondent stated that he was not aware that the RIW solution was not used, and, as such had no reason to make the Complainant aware of this. Had he realised the incorrect RIW solution was used, the Respondent would have made the Complainant aware. There was no evidence before the Committee to establish that the incorrect RIW solution had been used. The Committee therefore accepted the evidence of the Respondent that because he did not have a concern, there was nothing to raise with the Complainant.

 

(iv) The Respondent failed to make the Complainant aware of concerns about the Contractor’s work in installing the waterproof and tanking in the basement

 

86. In the agreed facts the Respondent acknowledged that he did not recognise that the solution at the time of his site visit on 26 February 2018 could not be applied in accordance with the manufacturer’s instructions. In his evidence to the Committee the Respondent acknowledged the tanking was not installed to provide a clear continuous damp proof membrane, and that the tanking was a contributory factor to the flooding. He stated that he did not discuss this issue with the Complainant and if he had “reason to worry about what was being installed, I would have raised it.”
87. In the Committee’s view, the Respondent, as the contract administrator, had a duty to inform the Complainant of any issue to do with the quality of the workmanship of the Works carried out. The Respondent stated that he, “wanted to have a discussion with the Contractors to ensure they were aware of what they needed to do. The attitude of the Contractor was that he didn’t want the sketch drawing, didn’t want to talk about tanking and he didn’t want revised drawings as by the time I produced them the project would have moved on. The focus was on progress and getting on with the construction works.”
88. The Committee considered that the Respondent clearly had concerns but that he had failed to pursue these concerns sufficiently with the Contractor to satisfy himself properly as to the quality of the work. Allowing himself to be assured (falsely, as it turned out) meant that he had not, in his mind, identified any issues to raise. Consequently, not having identified an issue, he did not raise an issue with the Complainant about the tanking installation.
89. In conclusion, the Committee was not satisfied that the Respondent had not raised issues with the Complainant during the construction process. Accordingly, the Committee found Particular 3(f) not proved.

 

3(g) He did not discuss with the Complainant the effect of deleting the Liquidated Damages clause from the contract particulars in respect of delays to the agreed timescale for the project.

90. The Respondent denied Particular 3(g). In his witness statement the Respondent stated he undertook a Pre-Start Meeting on 8 January 2018 with the Complainant when the contract was signed and, that he, “ran through the contract with the Complainant, so they were aware of what each section meant. At the Pre-Start Meeting, I made the Complainant aware of the effect of deleting the Liquidated Damages clause from the contract particulars. I know I did this because it is something I discuss and consider before every building contract is signed. For this project, N/A was entered in clause 2.9 regarding Liquidated Damages because the clients were going to stay in the property during the construction work….I specifically remember the Contractor saying at the Pre-Start Meeting that if Liquidated Damages had been included, the tender costs would have been higher.” In his evidence to the Committee the Respondent confirmed his recollection and stated that it was his usual practice to go through the contract with a client.
91. The Complainant told the Committee he was “positive” the Respondent did not discuss liquidated damages. He stated that the first time he saw the Minor Works Contract was when the Respondent and Contractor came to the Property in January 2018 which is when the document was signed by him. The Respondent did not go through the contract in detail. The Complainant stated that he was surprised about the end date of project being April 2018, as it was unrealistically short, but he did not raise this because “I wanted to get things going and started”. When asked if he recalled the liquidated damages clause being scored out, he replied “I think it was”.
92. During the Respondent’s evidence, the Committee was provided with an email dated 29 September 2017 from the Respondent to the Complainant. The email included a number of attachments, one of which was the Minor Works Building Contract. Within the body of the email the Respondent had stated under the heading ‘Draft Contract’:

“thank you for confirming your home insurance details – we have included them in the draft Contract (see attached). This is a standard minor building works contract, suitable for domestic properties. The conditions are also attached (apologies for the reduced quality scan) – they maybe won’t mean much to you but they are designed to be fair to both parties and they enable us to look after everything during construction. Once the start date has been confirmed, we’ll ask for the Contract to be signed.”

93. The Committee was mindful that the email and attachments had not been put to the Complainant in evidence as the email was produced by the Respondent during his evidence.
94. The Committee considered the evidence of the Complainant and Respondent carefully. The Complainant and Respondent were both certain in their recollections of events. The Committee therefore looked at the corroborative evidence available which would assist it in determining the reliability of the witnesses. The Committee first considered the email sent on 29 September 2017 by the Respondent attaching the Minor Works Contract. It noted at clause 2.9 “N/A” had been typed, and various other pre-populated entries and deletions had been made. It noted also that the proposed work commencement date and date of completion had been typed in. In the cover email of 29 September 2017 there was no direct mention of liquidated damages. When comparing the draft Minor Works Contract with the signed Minor Works Contract dated 8 January 2018, the Committee noted the following: the typed commencement and completion dates were now handwritten, there appeared to be a number of asterisks at clauses 2.3 and the section requiring signatures from the parties, whilst at 2.9 “N/A” remained as per the draft contract. In the Committee’s view these alterations from the draft contract suggested the matters that were most likely to be discussed. In his oral evidence to the Committee, the Respondent stated that he would not have gone through every clause in the contract as this would have taken “all day”. It appeared clear to the Committee that it had been established in the Respondent’s mind when he had sent the email in September 2017 that the contract would not include liquidated damages as it appears evident that the price quoted in the tender that was accepted made no mention of liquidated damages. The Respondent stated that he recalled the Contractor saying that if liquidated damages had been included the cost would have been higher. The Committee noted in the Respondent’s witness statement that it was during this period he was impacted by personal circumstances and specifically, [REDACTED]. In the Committee’s view, this cast doubt on the Respondent’s certainty that he discussed liquidated damages with the Complainant. The Committee therefore preferred the evidence of the Complainant. Accordingly, the Committee found Particular 3(g) was found proved.

 

Particular 4

Failed to act in the best interests of the Complainant as his client in that he:

4(a) Failed to advise the Complainant of the Contractor’s liquidation;

95. The Respondent admitted Particular 4(a). It was an agreed fact.
96. A winding up order was made in respect of AC Construction (Ellon) Ltd on 21 March 2018. The Respondent was aware of the liquidation by 26 June 2018. On this date the Respondent emailed the Contractors asking whether the liquidation affected, “any of the projects we have on the go just now? To keep things right, I think we’ll at least need to change the business name on the contracts and get your new insurance details.”
97. The Respondent did not advise the Complainant of the contractor’s liquidation at the time. AC Construction (Ellon) Limited were unable to carry out the original contract following the appointment of the liquidator in March 2018.
98. The Complainant stated that he was not told of the application for liquidation of the Contractor’s company during the course of the works. The Respondent accepts he did not tell the Complainant about this and apologises for not making the Complainant aware of the change as a result of the liquidation. The Respondent stated that he did not ignore the liquidation discovery, as he questioned the Contractor via email and received confirmation that ACC Joiners and Builders Ltd had acted as Contractor throughout the project, and he requested and received updated insurance details. The Respondent was satisfied that as ACC Joiners and Builders Ltd had the same Director and workforce, “they were providing the same services for the same costs and working to the same contract.” The Respondent stated that executing a new contract with ACC Joiners and Builders Ltd would cause unnecessary delay and concern for the Complainant.
99. Mr Gibb in his first report notes that the Minor Works Contract includes no provision for assignation of the Contract and that “the only option was to terminate the contract at that time, or advise the Client of that process.” Mr Dunbar in his report notes that the liquidation of AC Construction is a contractual matter of law.
100. The Inquirer stated in his report:

“the Respondent could have explained that AC Construction (Ellon) Ltd. had filed for liquidation and that, strictly, the contract was held with a company which no longer existed.  The Respondent could have explained any contractual risks arising from the liquidation of AC Construction (Ellon) Ltd. and could have discussed with the Complainant the option to terminate the contract or to proceed with the payment to ACC Joiners and Builders, on the basis that Graeme Cheyne was a director of both companies.”

101. The Committee considered the evidence of the Inquirer, Mr Gibb and Mr Dunbar, and the Respondent’s admission. It was satisfied that the Respondent failed to act in the best interests of the Complainant as his client when he failed to advise of the Contractor’s liquidation. Accordingly, the Committee found Particular 4(a) proved.

4(b) Instructed that the Complainant make payment to a company other than the one named under their Small Building Works contract.

102. The Respondent denied Particular 4(b). It was admitted that the Contractor named on the Minor Works Contract was AC Construction (Ellon) Ltd and that the Interim Certificates issued by the Respondent under the contract named this company as the contractor to be paid for the works being certified. This was an agreed fact between the parties. It was also admitted that in his email to the Complainant dated 26 October 2018 the Respondent instructed the Complainant to pay ACC Joiners and Builders.
103. The Respondent’s evidence was that in his conversation with the Contractors, he was informed that, “ACC Joiners and Builders had acted as Contractor throughout the whole project, had the same director and work force and they were providing the same construction services for the same costs, working to the same contract”.
104. The Respondent stated that he thought to terminate the contract with AC Construction (Ellon) Ltd and to execute a new one with ACC Joiners and Builders Ltd, but this “would cause unnecessary delay and concern.” In his response to the ARB dated 23 November 2021, the Respondent stated that he “regrets and apologises for not discussing the change of identity of the contractor’s limited company.”
105. The Committee had regard to the Interim Certificates which were all issued under AC Construction (Ellon) Ltd and the Respondent’s email of 26 June 2018 which states that he knew about the impending liquidation and insolvency of the Contractor. In the Committee’s view there was a clearly a change of Contractor, and the Respondent had instructed the Complainant to make payment to ACC Joiners and Builders Limited, which was not the company named under the Minor Works Building Contract. The Committee was satisfied that the Respondent failed to act in the best interests of the Complainant by instructing the Complainant to make payment to ACC Joiners and Builders Limited. Accordingly, the Committee found Particular 4(b) proved.

 

Finding on Unacceptable Professional Conduct/Serious Professional Incompetence

106. Having found Particulars of Allegation 1, 2(c), 2(d), 2(e), 3(a), 3(b), 3(c), 3(d), 3(g), 4(a) and 4(b) proved, the Committee went on to consider whether the Respondent’s conduct amounted to UPC and/or SPI. The Committee heard and accepted the advice of the Legally Qualified Chair which is a matter of record. The Committee noted the Respondent’s admissions to UPC and SPI in relation to some of the particulars, however, it reminded itself that a finding of UPC and SPI is a matter for its own independent judgment and that there is no burden or standard of proof. The Committee had regard to Standards 2, 4 and 6 of the Code.
107. Standard 4 is set out above in relation to the Committee’s finding at Particular 1.
108. Standard 2 is in relation to competence. Standard 2.1 states that an architect is expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work you should ensure that they are competent and adequately supervised.
109. Standard 6 states that an architect should carry out their professional work faithfully and conscientiously and with due regard to relevant technical and professional standards:

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

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

 

Particular 1:

110. 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 public would have an expectation that the terms of engagement they receive from a Respondent would comply with ARB’s Code. They would expect that all relevant issues which may arise are covered so that they know what to do if anything goes wrong. Where a project goes wrong, as the present one has, then matters such as the termination process, the complaints procedure and the steps that can be taken in relation to ARB, are all important considerations. In the present case, the Complainant did not have all of the information and did not have adequate terms of engagement to refer back to when issues did arise to identify the options available to him either under any complaint handling process or dispute resolution process in place or by way of complaint to ARB.  In these circumstances, the Committee found the Respondent’s failing to be sufficiently serious and found the Respondent guilty of UPC.

 

Particular 2(c):

111. By his own admission the Respondent acknowledged that the sketch drawing he produced was disregarded by the Contractor. The Respondent was under a duty to provide revised drawings as the foundations were higher than he expected, and underpinning was required. The Committee viewed this as a serious failing because the original design and waterproofing specified could no longer provide the necessary waterproofing as the levels meant a seal against water ingress could not be easily formed. No revised drawings with new specifications and details for waterproofing were provided, despite the Respondent acknowledging that there was a requirement for him to provide such drawings. Had revised drawings been provided, it would have become apparent the waterproof membrane was not ideally suited to the new uneven substrate. An effective waterproofing solution was not installed and the consequences to the Complainant were profound and wholly adverse. Accordingly, the Committee found the Respondent guilty of SPI in relation to Particular 2(c).

 

Particular 2(d):

112. The Inquirer stated that following the underpinning that would be in place it would not have been possible to achieve continuity of waterproofing using the specified RIW Sheetseal 226 membrane and that the Respondent did not understand the product which he had specified. This meant the membrane could not be continuous or cope with the different levels within the basement. The Committee considered that this is a serious failure because it would be reasonable to expect the Respondent to know, or to find out what to do, when the situation had changed. The Respondent did not undertake any steps to inform himself about how the product would work within the new situation. This failure was serious as it contributed to the water ingress in the basement. Accordingly, the Committee found the Respondent guilty of SPI in relation to Particular 2(d).

 

Particular 2(e):

113. The Committee concluded that, consistent with its findings of SPI in relation to 2(c) and 2(d), the waterproofing and tanking as installed was deficient and it was this that led to the repeated flooding within the basement extension. Accordingly, the Committee was satisfied the conduct was serious and amounted to SPI.

 

Particulars 3(a) and 3(b):

114. The Respondent failed to apply for an amendment to the Building Warrant. This meant that the Works, as executed, did not conform to the approved Building Warrant. This was confirmed by the Building Standards department at the Local Authority. Revised drawings would have been required for the amendment application. The Respondent acknowledged that an amendment could have been applied for at any time prior to the project’s completion, however, he simply did not make an application. The Committee considered the Respondent’s conduct was serious and amounted to UPC. As a result of the Respondent’s failure to apply for an amendment to the Building Warrant, the Complainant was left with an extension that did not comply with the approved Building Warrant issued by the Local Authority, a particularly serious matter for the Complainant. Accordingly, the Committee found the Respondent guilty of UPC in relation to Particulars 3(a) and 3(b).

 

Particular 3(c):

115. The Respondent acknowledged the tanking and waterproofing were crucial elements of his design of the Property. Despite this the Respondent was content to leave crucial decisions to the Contractor in relation to the waterproofing and tanking following the underpinning, when it was his responsibility to make the decisions about how best to proceed, including preparing revised drawings. The Committee considered the Respondent’s delegation of duties to the Contractors as serious. It did not accept the Respondent’s justification that the Contractors were stubborn and obstructive. The responsibility for decision making remained his as the architect and contract administrator. The Committee found the Respondent guilty of SPI in relation to Particular 3(c).

 

Particular 3(d):

116. Had thorough inspections been undertaken by the Respondent it may have been identified that the Contractor had not installed the waterproofing material originally specified or that the manner of installation was not fit for purpose in preventing water ingress. During the Respondent’s inspection on 26 February 2018, it was apparent that the waterproof membrane overlap was inadequate along the back wall and had not been taken up the wall sufficiently high to enable an overlap with the dampproof course at the higher level.
117. As contract administrator it was the Respondent’s responsibility to ensure that he conducted thorough inspections to a satisfactory standard and in general compliance with the drawings approved under the building warrant. The Respondent knew the ground conditions had changed and that the drawings were now unsuitable, and therefore it was a serious failing not to have conducted satisfactory inspections. In the Committee’s view this was a serious failing. The Committee found the Respondent guilty of SPI in relation to Particular 3(d).

 

Particular 3(e):

118. In signing the Practical Completion Certificate on 26 October 2018, the Respondent was effectively confirming the date on which he believed the Works to be practically complete in a proper and workmanlike manner. However, the Committee had found, and it was admitted by the Respondent in these proceedings, that the Respondent was not aware that the tanking material used may not have been RIW Sheetseal 226. In any event, the situation had changed and the RIW Sheetseal 226 could not have been applied to the uneven surfaces of the underpinning in accordance with the manufacturer’s instructions. In the Inquirer’s opinion “on this basis alone…the Respondent should not have signed the PCC.” As the contract administrator the Respondent should only have signed the Practical Completion Certificate when he had taken sufficient steps, including thorough inspections, to satisfy himself that the work had been completed in a proper manner and that practical completion had actually been achieved. The Committee considered the Respondent’s failing serious and that it amounted to SPI.

Particular 3(g):

119. In the Inquirer’s opinion, the application of Liquidated Damages in a Minor Works Contract for a residential with a relatively low contract value is “a difficult issue”. The R.I.A.S. Practice Note FI1722 issued in 2017 notes:

Many architects are nervous of including such a provision in the contract for fear that it will dissuade builders from tendering or, alternatively, persuade those who do return a tender to increase their prices.  Whilst those concerns are genuine and should be discussed with every client on every occasion…”.

120. The Inquirer states that, “the author goes on to recommend the inclusion of the ‘LAD’ (Liquidated and ascertained damages) clauses. However, in my experience small contractors may be wary of contracts which include Damages for non-completion.”
121. In view of the uncertainty expressed by the Inquirer in relation to the inclusion of a liquidated damages clause in a project of this type, the Committee was not persuaded that the Respondent’s conduct at Particular 3(g) reached the threshold of seriousness to warrant a finding of either UPC or SPI. Accordingly, the Committee did not find 3(g) proved in relation to UPC or SPI.

 

Particular 4(a):

122. The Respondent, being aware of the contractor’s liquidation during the project made the conscious decision not to inform the Complainant. Standard 6 requires an architect to carry out their work conscientiously and with due regard to relevant technical and professional standards. At 6.3, an architect is expected to keep their client informed of progress and of any issue which may significantly affect quality or cost.
123. In the Committee’s view, the liquidation of the Contractor, even when they were continuing to provide construction services but under a different name, was a significant matter as the cost and quality of the project could have been affected. It was the Respondent’s duty under the Code to have informed the Complainant of this and obtained his instructions. The Complainant was deprived of making a choice. He may have wished to have employed new Contractor’s. Mr Gibb in his first report stated, “The only option was to terminate the contract at that time, or advise the Client of that process.”
124. The Respondent was under a duty as the contract administrator to protect his client’s interests. By allowing the work to proceed, without having amended the contract, to reflect the company actually undertaking the work, the Complainant was put in the position where they may have had no recourse under the contract for the work carried out by ACC Joiners and Builders Ltd. The Committee considered the Respondent’s failure to not inform the Complainant was serious. The Respondent could not be sure that all would be well with new Contactor’s company as there had already been technical difficulty with the foundations and the contractual date for the completion of the project had already past when the liquidation became known. The Committee was satisfied that the Respondent’s conduct at Particular 4(a) amounted to UPC.

 

Particular 4(b):

125. It was unknown to the Complainant that ACC Joiners and Builders Ltd were the new Contractors. The Respondent could have explained to the Complainant the option to terminate the contract or to proceed with the payment to ACC Joiners and Builders, on the basis that the main contract with the Contractor was a director of both companies, or to have a revised contract put in place with the new company as the Contractors. These options were not considered by the Respondent. Instead, he asked the Complainant to make payment for Interim Certificate 7 to the new company when he knew the new company was not part of the contract.
126. This is a serious failing on the Respondent’s behalf. Contractual arrangements are in place to protect the parties, should something go wrong. The Respondent’s conduct failed to protect the Complainant’s interest and potentially exposed the Complainant to future loss. The Committee was satisfied the Respondent’s conduct in relation to Particular 4(b) amounted to UPC.

 

Conclusion on UPC and SPI

127. In conclusion, the Committee considered that – except for particular 3(g) – the facts found proved and the corresponding breaches of the Code were serious and adversely impacted both on the reputation of the Architect and the profession generally. Cumulatively and individually, they represented a standard of conduct falling significantly and materially below the standard expected of a registered Architect.

128. In relation to SPI, the Committee took into account the serious consequences to the Complainant which arose because of the Respondent’s incompetence. This included the Complainant and his family suffering considerable stress and worry since 2018, which is ongoing due to the condition of their Property, the continued flooding of the Complainant’s basement, and the substantial remedial works required which are of a significant sum, and potentially greater than the cost of the original extension.

129. In all the circumstances and for the reasons set out above, the Committee found that the Respondent’s conduct was serious and amounted to unacceptable professional conduct and serious professional incompetence.
Sanction

130. Having found the Respondent guilty of UPC and SPI, the Committee considered whether to impose a sanction, and if so, which one.

131. The Committee heard submissions on behalf of ARB and from Ms Tyre on behalf of the Respondent.

132. In reaching its decision, the Committee had regard to the Sanctions Guidance (2022) published by ARB and accepted the advice of the Legally Qualified Chair but exercised its own independent judgment. The Committee had regard to all of the oral evidence and the documentation contained in the bundles provided by ARB and the Respondent, and to its previous findings in relation to the facts, UPC and SPI.

133. 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.

134. The Committee noted that the Act does not require the Committee to impose a sanction in every case where a guilty finding is reached. If it decides to impose a sanction, then the sanctions available to the Committee are:

1) Reprimand;

2) Penalty order;

3) Suspension (for a maximum of two years); and

4) Erasure.

135. In determining the seriousness of this matter, the Committee identified the following aggravating factors:

1) The UPC and SPI placed the Complainant and his family at a substantial risk of harm in that they, to this date, they have been unable to use the basement in their Property, what has been built is not in compliance with the Building Warrant, they have no completion certificate and they face significant disruption from the remedial work that will be required;
2) The UPC and SPI has had, and continues to have, a substantial impact on the Complainant and his family in that they have been subjected to considerable stress and inconvenience;
3) Although limited to a single project, the UPC and SPI involved a multiplicity of failures by the Respondent, and to that extent, amounted to a pattern of incompetence and unacceptable conduct.

136. The Committee identified the following mitigating factors:

1. The Respondent admitted the majority of the particulars of the allegation and admitted that he was guilty of UPC and SPI in relation to some of the particulars of allegation;
2. The Respondent fully engaged with the ARB and the regulatory process and agreed to a Joint Minute of Agreed Facts which expedited these proceedings;
3. The Respondent has a previously unblemished career and has no previous regulatory findings recorded against him;
4. The Respondent has expressed genuine remorse and apologised for his actions;
5. The Respondent has demonstrated insight into his failings and has taken step to remediate his practice;
6. The risk of repetition of the UPC and SPI is low;
7. [REDACTED]
8. The Respondent has provided positive testimonials attesting to his good character, diligence and competence.

137. The Committee gave careful consideration to the Respondent’s witness statement and his oral evidence. The Respondent had been frank in making admissions to the majority of his failings, and that these failings should be considered in the context of his personal circumstances, rather than for personal gain.

138. The Respondent demonstrated significant insight into his failings. In particular, the Committee noted the Respondent’s acceptance of SPI and UPC in relation to some of the failings and the steps he has taken to remediate the deficiencies in his practice which includes the revised terms of engagement now compliant with Standard 4, regular and thorough inspections of a property during a project and that he does not rely on assurances provided by contractors but takes steps to ensure that works on a project are compliant with standards and requirements.

139. The Committee was satisfied that the effect of these proceedings before the ARB have been a salutary experience for the Respondent and that he has put mechanisms in place in his personal life to prevent a risk of recurrence. Accordingly, the Committee determined that the risk of repetition of the UPC and SPI was low. The Committee also noted that the Respondent had expressed genuine remorse for his failings and that he had attempted to engage the Complainant to resolve matters but was unable to do so.

140. The Committee was impressed by the range of testimonials provided on behalf of the Respondent. The Committee noted the roles of the referees, which included clients and others who are known to him [REDACTED]. Their knowledge of the Respondent is long-standing. The Committee felt able to rely on the testimonials as credible evidence of the Respondent’s diligent and competent practice prior to and subsequent to the events in this case.

141. Taking everything into account, the Committee determined that the UPC and SPI in this case falls within the middle range of seriousness. The Respondent had breached Standards 2, 4 and 6 of the Code and the UPC and SPI has had, and continues to have, a substantial impact on the Complainant and his family as noted in paragraph’s 122 to 124 above. Furthermore, in the Committee’s view, the matters found proved are serious to the extent that the Respondent’s failings undermine both his reputation and that of the profession generally. The Committee therefore concluded that the Respondent’s conduct was sufficiently serious for it to require the imposition of a sanction and considered them in ascending order of severity.

142. The Committee first considered whether to impose a reprimand. The Committee noted that a 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, particularly in cases where the UPC / SPI has not seriously affected the Complainant. Having regard to the facts of this case, the Committee concluded that a reprimand would not be sufficient to maintain confidence in the reputation of the profession and to declare and uphold proper standards of conduct and competence. Although it accepted that the Respondent considered that the hearing process had been a salutary lesson, this was not sufficient of itself to uphold proper professional standards.

143. The Committee then considered whether to impose a penalty order. For the same reasons as set out above it considered that this was not the appropriate and proportionate sanction to uphold proper professional standards. The Respondent’s UPC and SPI was not at the lower end of the spectrum and encompassed a number of serious failures.

144. The Committee next considered whether a suspension order was appropriate. Having carefully considered the Sanctions Guidance, the Committee considered that such a sanction would be sufficient to protect the public and the reputation of the profession. Despite the multiplicity and seriousness of his failings of UPC and SPI, which the Committee determined were unlikely to be repeated, and the Respondent’s significant insight and remorse, the Committee concluded that, taken in the round, the Respondent’s failings are not fundamentally incompatible with continuing to be an Architect. The Committee also took into account that there has been a significant period of working since the events without incident.

145. Before finalising whether a suspension order was the appropriate and proportionate sanction the Committee considered the guidance relating to erasure. It considered the imposition of erasure would be disproportionate (therefore unduly punitive) because, as noted above, the failings were not fundamentally incompatible with registration because a sanction of suspension would be sufficient to uphold public confidence and maintain standards of the Architect profession.

146. The Committee therefore imposes a suspension order for a period of three months, which the Committee considers appropriate to protect the public and meet the public interest. The Committee has had regard to the impact of such a sanction on the Respondent but considers that the public interest outweighs his interests.

147. That concludes this determination.