THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Toyin Adetola Oduse

Held as a video conference

On

20 November 2022 to 24 November 2022

And

9 January 2023 to 13 January 2023

———-

Present

 Sadia Zouq (Chair)

 Robert Dearman (PCC Architect Member)

Jules Griffiths (PCC Lay Member)

———–

In this case, the Architects Registration Board (“ARB”) was represented by Ms Kathryn Sheridan of Kingsley Napley LLP (“the Presenter”).
Mr Toyin Oduse (“the Respondent”) attended part of the hearing to give evidence and was not represented.

 

The Allegation

1. The Respondent is charged by ARB with UPC, and the Professional Conduct Committee (“the Committee”) is responsible for deciding whether that allegation is found proved, or not.
2. The Charge comes before the Committee further to its jurisdiction under the Architects Act 1997 (“the Act”), section 15(1)(a) to make a disciplinary order if a registered person has been guilty of UPC.
3. The matters asserted by the Board to have occurred and which it is said amount (if proved) to UPC are the following:

1. The Respondent did not appropriately manage a conflict of interest in that he:

(a) Did not provide written disclosure to his client that in acting as an architect and contractor his advice would no longer be impartial;

(b) Did not obtain written and informed consent from his client for him to continue to act as both architect and contractor.

2. The Respondent did not carry out work and/or ensure that work carried out was in accordance with planning and/or building regulations requirements.

3. The Respondent:

(a) supervised and/or carried out work without planning permission;

(b) gave inadequate and/or incorrect planning advice to his client.

4. The Respondent’s actions at particular 3a lacked integrity.

Preliminary Issues

Service and Proceeding in Absence

4. The Respondent not having attended the hearing at the outset, the Committee considered whether notice of the hearing had been served in accordance with Rule 6 of the Professional Conduct Committee Rules (“the Rules”). The Committee heard from the Presenter on behalf of ARB that notice, containing the required information, had been served on the Respondent by a letter dated 28 September 2022 to his address on the Register and to his email address on 30 September 2022, more than the 49 days in advance as prescribed by the Rules. The notice and supporting documentation sent by post was returned to ARB offices due to insufficient postage. The Presenter submitted that, nevertheless, it was in the interests of justice and pragmatic for the Committee to be satisfied that service had been properly effected. She stated that it was open to the Committee not to take a strict interpretation of section 24 of the Act, and apply Rule 16a which stated “Provided that the proceedings are fair to the Respondent and not contrary to the Act: (i) no objection shall be upheld to any technical fault in the charge or the proceedings”. The Presenter submitted that the Respondent accepted there had been good service and that proceeding was fair and also in the Respondent’s interest.

5. The Committee heard and accepted the advice of the Legally Qualified Chair who referred to section 24 of the Act and Rules 6 and 16a. It was the Committee that had brought to ARB’s attention the notice and supporting documentation posted to the Respondent was returned to ARB offices due to insufficient postage and it being uncalled for by the Respondent. However, the Committee considered that notice and supporting documentation was successfully sent to the Respondent on 30 September 2022 at an email address the Respondent had been using to correspond with ARB since May 2022. The Committee had regard to the Proceeding in Absence bundle prepared by ARB, and the Respondent’s revised witness statement dated 6 November 2022. It noted that the Respondent attended a Case Management Meeting on 3 October 2022 at which the Chair issued directions confirming the hearing remained listed for 21 to 25 November 2022. Having considered all of the circumstances, the Committee was satisfied that notice had been served in accordance with the Act and Rules.

6. The Presenter applied for the Committee to proceed in the absence of the Respondent. She submitted that it was fair to proceed in all the circumstances having regard to the chronology of the Respondent’s engagement with the process to date. She submitted that the matters were serious and there was a clear public interest in the timely disposal of matters. The allegation dated back to 2020 and the Complainant and Inquirer were in attendance and ready to give evidence. The Presenter submitted that in correspondence and at the Case Management Meeting on 3 October 2022, the Respondent stated he would only attend the hearing to give evidence, and not to hear ARB’s case. The Presenter informed the Committee that the hearing was previously adjourned in May 2022, the Respondent had not sought an adjournment of today’s hearing, and therefore an adjournment would serve no useful purpose. She submitted that any disadvantage to the Respondent in proceeding should be balanced with the public interest in the expeditious disposal of allegations. Further, any disadvantage would be mitigated by ARB’s evidence being tested by questions asked in evidence in chief and questions from the Committee. In all of the circumstances the Presenter submitted that the Respondent had decided to voluntarily absent himself from the hearing and therefore the Committee should proceed in his absence.

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

8. The Committee exercised great care and caution in coming to its decision and carefully considered the overall fairness of the proceedings. The Committee was satisfied that the Respondent had been properly served with the required notice of this hearing. Indeed, the Respondent confirmed in an email dated 20 October 2022 that he was aware of the arrangements for the hearing. He stated “…at present, I am not able to say where I would be during the hearing period. Please be assured that wherever I will be, I will endeavour to be in an area which is reachable via a stable internet connection as agreed during the case management meeting.”

9. The Committee was satisfied that the Respondent had chosen to voluntarily absent himself.  The Respondent had explained why he was not participating in the hearing other than to give evidence. The Respondent had provided responses to the allegation and a revised witness statement setting out his position which the Committee could take into account when hearing ARB’s case. There was no realistic prospect that the Respondent would attend any adjourned hearing in its entirety, and the Committee could identify no good reason to adjourn. The Complainant and Inquirer were ready to give evidence and the allegations against the Respondent are.  serious and date back to 2020. In balancing the interests of the Respondent against the public interest in the expeditious disposal of matters the Committee exercised its discretion under Rule 14a and concluded considered that it was fair and proportionate to proceed in the absence of the Respondent.

Amendment to the Allegation

10. The Presenter, on behalf of ARB, made an application to amend the factual particulars of allegation 2. She asked that the Committee delete the words “planning and/or”. The Presenter submitted that allegation 3 also referred to planning and therefore the proposed deletion removed this duplicity. The Presenter further submitted that the proposed amendment did not affect the nature or gravity of the allegation against the Respondent and would cause no unfairness to him.

11. The Committee heard and accepted the advice of the Legally Qualified Chair who referred it to Rule 16(b) of the Professional Conduct Committee Rules 2019 (“the Rules”), which provides:

“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.”

12. The Committee allowed the amendment as doing so focused the allegation to the consideration of building regulation requirements and removed the reference to planning requirements that was alleged in allegation 3. It was satisfied that the amendment would cause no unfairness or prejudice to the Respondent. Allegation 2 was therefore amended in the terms sought, namely:

2. The Respondent did not carry out work and/or ensure that work carried out was in accordance with planning and/or building regulations requirements;

Background

13. The Respondent registered with ARB on 13 November 2008. The Respondent is an architect and, at the material time, was a director of his own company, SE2 Creatives Limited in London.

14. The Complainant owns a three-bedroom semi-detached house (“the Property”). The Property had a conservatory to the rear and an attached garage. The Complainant wanted to remove the conservatory and convert the garage into a living space with a two-story extension. Once the conservatory was removed, the Complainant wanted to add a single-storey rear extension.

15. The Complainant instructed a Planning Agent, who prepared plans and gained conditional planning permission for a single-storey side (garage) and rear extension on 8 August 2019. The planning permission for this was granted. However, this differed from the Complainant’s requirements as she wished to have a two-storey extension.

16. The Complainant’s evidence is that she was looking to appoint a builder to carry out the works, and the Respondent told her he could assist. The Respondent attended at the Property to discuss the works. The Complainant stated that during this initial discussion the Respondent also advised that he was an architect and registered with ARB. The Respondent reviewed the documentation in respect of the planning application prepared by the Planning Agent. The Complainant told the Respondent that she wanted a two-storey side extension. The Complainant’s evidence is that the Respondent advised that she would need new drawings for the two-storey extension and that if she appointed him, he would do the drawings at no cost. The Complainant agreed to this. The Respondent provided the Complainant with an initial contract on 30 December 2019. The contract noted that the works to be carried out would include submissions to Building Control and a planning application for a front extension to the garage. The Respondent’s fees were to be £28,000 for both the architectural and building work. A revised contract was sent to the Complainant on 31 January 2020 by email in which the Respondent stated he was ready to start the work. An addendum to the contract was provided for further work on 14 March 2020, and a revised addendum provided on 18 March 2020 amending the contract cost to £30,500.

17. Building work started at the Property in February 2020 for the approved single storey extension. On 2 March 2020, the Planning Agent issued a set of updated technical Building Regulations drawings to both the Complainant and Respondent. The Respondent submitted the Building Control application on 1 March 2020 to Greenwich Council (“the Council”). The Building Control Officer from the Council visited the Property on 11 March 2020 and advised that raft foundations were required rather than the strip foundations proposed by the Planning Agent. The Respondent prepared a design and calculations for a raft foundation and updated the Complainant with an addendum to the original contract dated 14 March 2020. The main changes to the agreement were to build the side extension to the front of the garage and to raise the garage roof once planning approval had been granted and to change the rear extension roof to accommodate a mezzanine floor. The additional cost for this addendum was £2,500. On 20 March 2020 the Respondent sent the Complainant a 3D view of the proposals for the revised planning application which showed a higher pitched roof over the garage area and a large hipped roof to the rear and side extension.

18. The Respondent submitted the revised planning application on 25 May 2020. The application confirmed that work had already started without consent on 1 April 2020. The Complainant’s evidence is that she understood that the revised planning application was to change the roof and to have a two-storey extension to the side of the property.

19. In June 2020 Building Control raised concerns that the Respondent was proceeding with building work which did not match the planning approval, in particular the variations to the approved roof profile and a loft/mezzanine floor. The Complainant stated that the Respondent ignored the concerns raised and carried on with the works. On 30 July 2020 the Respondent withdrew the second planning application. The Complainant’s evidence is that the Respondent advised the works could continue despite the planning application being withdrawn on the basis there was new legislation coming in “where you could carry out works and then the Council would approve the works once built.” Work continued on the Property with an estimated completion date of mid-September 2020.

20. Towards the end of June 2020 however, the relationship between the Complainant and the Respondent began to deteriorate. There were issues with workmanship, the electrics and gas safety. The Complainant terminated the building contract with the Respondent on 15 September 2020 via correspondence in which she set out her concerns about the work and costs. The Complainant wrote to the Respondent again on 5 October 2020 setting out her further concerns in respect of the work. The Respondent replied the following day stating that he had advised on planning permission and risks. Following an altercation at the Property, the Respondent did not return. On 29 September 2020 the Complainant made a formal complaint to ARB. The Complainant subsequently appointed new contractors.

21. ARB investigated the complaint and appointed an Inquirer, Ms Carol Norton, to provide a professional opinion. The Inquirer concluded that the Respondent’s conduct fell well below the standards expected of a reasonably competent architect.

22. At the outset of the hearing, the Chair asked for the allegation to be read into the record. The hearing proceeded in accordance with Rule 19.

Evidence

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

• • The Report of ARB’s Solicitor dated 12 November 2021;
  • The Complainant’s witness statements and exhibits, including two video clips;
  • The Inquirers Report, Addendum Report and Appendices;
  • Appendix C of the Inquirer’s Report and the documents referred to therein;
  • Appendix E – Building Control submissions;
  • Appendix F – Complainant’s Surveyors Report;
  • Appendix G – Building Regulations Extracts;
  • Correspondence between various individuals including to and from the Respondent, Complainant, the Planning Agent, the Council, Building Control and the Gas Board;
  • The Respondent’s representations dated 25 December 2020, 2 January 2020, 5 January 2020, 30 January 2020, 2 March 2021 and 19 April 2021;
  • The Respondent’s revised witness statement dated 6 November 2022;
  • Testimonials on the Respondent’s behalf;
  • Exhibits RV0, RV1 and RV1;
  • The Respondent’s revised terms of agreement – a sample contract of two pages dated 2 February 2022;
  • Correspondence in the form of screenshots between the Respondent and Complainant.

24. The Committee also heard live evidence from:

• • The Complainant;
  • The Inquirer;
  • The Respondent.

 

Applications

Application to re-open ARB’s case and admit further evidence

25. At the conclusion of ARB’s case, and prior to hearing the Respondent’s case, Ms Sheridan applied to re-open ARB’s case and to admit further evidence, namely: two video clips referred to as “Video 1” (4 minutes and 11 seconds in length) and “Video 2” (1 minute and 22 seconds in length), a witness statement from the Complainant dated 22 November 2022, a production statement from Ms Helen Ransome, Head of Professional Standards at ARB, dated 22 November 2022 and exhibits, and an addendum report from the Inquirer.

26. The Presenter submitted the Committee has a discretion under Rule 16a(ii) to vary proceedings in the interests of justice and fairness. In relation to the admissibility of the further evidence, the Presenter referred to the criteria of relevance in Rule 15a and the overarching requirements of justice and fairness. The Presenter stated that in her evidence to the Committee the Inquirer alluded to having seen a video. This triggered inquiries by the legal representatives of ARB which resulted in the further evidence. The Presenter informed the Committee that the video footage was provided by the Complainant to ARB in October 2020 and subsequently disclosed to the Respondent. It was an oversight that reference to the videos had not been included in ARB’s report. The Presenter referred the Committee to the principles from the following case law: Ladd v Marshall [1954] 1 WLR 1489, Muscat v Health Professions Council [2009] EWCA Civ 1090 and TZ v GMC [2015] EWHC 1001 (Admin). She submitted that the new evidence was relevant as it will assist the Committee in its determination of the allegation, the Respondent had not objected to its admission, and any unfairness in its admission can be remedied by allowing the Respondent time to consider the further evidence. The Complainant and Inquirer were available and will be recalled to give evidence should the Committee accept ARB’s application.

27. The Presenter referred to the case of Council for the Regulation of Health Care Professionals v General Medical Council and Ruscillo, [2004] EWCA Civ 1356 and submitted that it was important for the Committee to have all relevant evidence before it. She submitted that, should the Committee refuse to admit the further evidence, it can continue to hear the case fairly on the evidence presented.

28. The Respondent did not object to ARB’s application to re-open its case. In relation to the application to admit further evidence, the Respondent agreed that the videos were considered at the investigation stage by him. He submitted that the Complainant filmed the videos after he had left the Property and others had started work. The Respondent disagreed with the contents of the Inquirer’s addendum report but overall did not object to the admissibility of the addendum report and the production statements of the Complainant and Ms Ransome.

29. The Committee accepted the advice of the Chair who reminded it of Rules 15 and 16, the requirements of relevance and fairness and the principles from the case law referred to above. The Committee took a sequential approach. It first considered ARB’s application to re-open its case. It noted the following: the Respondent’s case had not yet begun, the Respondent did not object to the re-opening of ARB’s case, and the reasons why ARB wanted to re-open its case was to ensure that all relevant evidence was placed before the Committee in the interests of justice and fairness. The Committee exercised its discretion under Rule 16a and allowed ARB to re-open its case. In doing so the Committee concluded there was no unfairness or injustice to the Respondent.

30. The Committee next considered whether to admit the further evidence. The Committee carefully considered the submissions from the parties, the case law, and the legal advice.

31. The Committee considered that it was desirable that all relevant evidence was before it. It noted that the videos were said to have been filmed by the Complainant around September/October 2020, and that the Respondent was provided the video evidence by ARB shortly after. The Committee determined that the videos and the production statements of the Complainant and Ms Ransome were relevant as they would assist the Committee in its determination of the allegation. The Inquirer’s addendum report provided the Committee with an expert opinion following the Inquirer’s review of the video evidence, and for the same reasons the Committee determined was also relevant. The Committee noted the Respondent’s objection to the content of the Inquirer’s addendum report, however he did not object to its admissibility. In his email of 24 November 2022, the Respondent stated, “I totally disagree with the conclusions of your Inquirer as I have previously mentioned”. Taking into account the second part of Rule 15a and considering fairness to the Respondent, the Committee could not identify any unfairness to the Respondent in refusing to admit the further evidence. Accordingly, the further evidence was admitted.

Decision on Facts

Legal Advice

32. The Chair reminded the Committee that 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 should be 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 the cases of Dutta v GMC (2020) EWHC 1974 (Admin) and Khan v. GMC [2021] EWHC 374 (Admin). In relation to the meaning of integrity, the Committee was advised of the cases of Wingate, Evans and Malins v. SRA [2018] EWCA Civ 366 and Bar Standards Board v. Howd [2017] EWHC 210 (Admin). The Committee was reminded of the Inquirer’s evidence as that of an expert, and her duties of independence.

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

34. The Committee accepted the legal advice given by the Legally Qualified Chair which is a matter of record. In reaching its decisions, the Committee carefully considered the live evidence of the Complainant, Inquirer, and the Respondent, together with the documents and video footage set out above. It considered the submissions made by the Presenter on behalf of ARB and the Respondent’s submissions and his various written responses and witness statements.

35. The Committee found the Complainant’s evidence overall to be credible and consistent with her witness statements, exhibits, the photographs, and her complaint to the Respondent and ARB. It was clear to the Committee from the documentary evidence, namely the correspondence with the Respondent, that the Complainant had become upset and frustrated with the Respondent. Overall, the Committee considered the Complainant’s evidence to be generally reliable.

36. In relation to the Respondent’s evidence, the Committee was of the view that initially he was doing his best to assist the Complainant to achieve a positive outcome, however it was evident that the relationship deteriorated. The Respondent often made assertions in his evidence for which there was no corroboration, such as insisting there was an agreement for a temporary build to visualise the structure when this was not documented in the contracts he had produced. The Respondent’s documentary evidence was also, at times, inconsistent with his oral evidence. For example, at no point in his correspondence with the Complainant did he explain the risks of undertaking works should planning permission be refused, yet he maintained throughout his evidence that the risks were explained in writing. Some of the Respondent’s documentary evidence was unverifiable, such as the typed-out WhatsApp messages which he submitted were messages from the Complainant. Screenshots of the messages had not been produced. The Committee also noted that in his oral evidence the Respondent stood by his description of the Complainant as a “wicked opportunist” and “liar”. He had also referred to the Building Control Officer as a “bloody liar”. The Committee took into account that the process was stressful and difficult for the Respondent. However, overall, the Committee considered that some of the explanations he gave during his evidence were neither credible nor reasonable and did not align with any sensible interpretation of the facts. This led the Committee to conclude that the Respondent’s evidence was less reliable than that of ARB’s witnesses.

37. Turning to the Inquirer, Ms Norton, the Committee noted that she had not visited the property until a year after the Respondent’s departure on 14 September 2021. The Inquirer was assisted by Video 1, which was filmed by the Complainant shortly after the Respondent left the property, and the Claimant’s Surveyors Report and photographs dated 14 February 2021. The Inquirer’s report was therefore largely based on the documents and photographs she had been provided with as it is understood that remedial works had been carried out at the property at the time of her inspection, but only limited works had begun at the time of the Surveyor’s inspection on 5 February 2021. The Committee was mindful of this timeline when considering the Inquirer’s evidence. Overall, it considered the Inquirer’s evidence was consistent with her report and opinion and found her to be a reliable witness.

38. The Committee made the following finding of facts.

Particular 1

1. The Respondent did not appropriately manage a conflict of interest in that he:

(a) Did not provide written disclosure to his client that in acting as an architect and contractor his advice would no longer be impartial;

(b) Did not obtain written and informed consent from his client for him to continue to act as both architect and contractor.

39. The Committee noted the Respondent’s admission to this factual particular, but considered his admission was made on a limited basis and so the Committee considered it was necessary to make factual findings.

40. There was no documentary evidence before the Committee that the Respondent made the Complainant aware that in acting as both an architect and contractor his advice would no longer be impartial. In her written and oral evidence, the Complainant stated that the Respondent advised her orally that he was also an architect practising for many years and registered with ARB. She stated that the Respondent did not raise with her the conflict of interest, and she confirmed that she would not have instructed the Respondent in both capacities had she known that his independence would be compromised.

41. In the Respondent’s witness statement dated 6 November 2022, he stated “I regret to have inadvertently missed to include in the contract the wordings required by the ARB Standard…which is an ARB peculiarity to which I wasn’t used to in Europe”. In cross examination the Respondent explained that he had not complied with Standard 1.3 of the Code because he had not understood that a conflict of interest had arisen.

42. The Respondent did not accept that the Complainant was not afforded the choice of whether she wanted him to continue as both an architect and contractor. In his written and oral submissions dated 10 January 2023 the Respondent stated “nevertheless, numerous meetings were held to fully explain our modus operandi…”. The Respondent referred the Committee to the initial and revised contracts dated 30 December 2019 and 14 March 2020 respectively, submitting that the Complainant had the opportunity to make an informed decision before signing the contracts.

43. The Committee first considered whether there was a conflict of interest. Having considered the Complainant’s evidence and documentation, the Committee was satisfied that the Respondent was acting as both architect and contractor, and that a conflict of interest existed in that the Respondent’s independence would potentially have been compromised.

44. The Respondent was in those circumstances, obliged to comply with Standard 1.3 of the Code which states:

Honesty and Integrity

1.3 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.

45. In the Committee’s view, Standard 1.3 required the Respondent to set out his role in writing, fully explaining the conflict of interest so that the Complainant could make an informed decision whether or not to appoint him as both a contractor and architect. The Complainant was entitled to know that the Respondent would no longer be acting as an impartial architect. Such disclosure is essential so that the client can make an informed decision as to how such a conflict might impact on the building project so they can make a decision as to how they want to proceed. The conflict should have been disclosed in writing and written consent obtained. The Committee rejected the Respondent’s submission that meetings with the Complainant and her acceptance of the initial and revised contracts amounted to written and informed consent for him to continue acting as both architect and contractor. As such, the Committee finds that the Respondent did not appropriately manage the conflict of interest.

46. The Committee therefore finds the facts alleged in Particular 1(a) and (b) proved and that the Respondent acted in breach of Standard 1.3 of the Code.

Particular 2

1. The Respondent did not carry out work and/or ensure that work carried out was in accordance with building regulations

47. The Inquirer undertook her inspection of the property including photographs on 14 September 2021, a year after the Respondent stopped work at the property on 11 September 2020. She was assisted by the photographs attached to the Claimant’s Surveyors Report dated 14 February 2021. It is understood no construction work was carried out prior to 14 February 2020 except for some urgent works in relation to the gas combination boiler to allow the property to be used temporarily. The Complainant provided Video 1 to ARB. This footage was filmed shortly after the Respondent stopped work at the property. The Respondent was shown Video 1 during his evidence. He confirmed that the works observed on the footage were undertaken by him or his workmen under his supervision; however, the Respondent stated that some work visible on the footage had been undertaken after he left the property. The Committee considered that it could rely upon the contents of Video 1 as showing the condition of the Complainant’s property following the Respondent’s departure as it was filmed close to the time of the alleged events.

48. The Committee carefully considered all of the evidence in relation to Particular 2 and the Inquirer’s findings. It concluded that the Respondent did not carry out the following works in accordance with building regulation requirements:

i) Unsafe gas boiler installation both new and existing

49. In relation to the previous boiler the Complainant stated that on one occasion after the Respondent had left the site the carbon monoxide alarm went off and she had to call the Gas Safety Board to attend and turn off the gas system. The Complainant was informed by the agent that the gas outlet had been concealed by the extension build. The Complainant’s evidence was corroborated by the notes from the agent’s site visit on 16 May 2020 when a RIDDOR carbon monoxide test was carried out at the property. The notes state “double extension built boiler now flues in to confined space”. The Inquirer also confirmed in her evidence that the Respondent had built the extension without extending the boiler flue. She stated that a boiler flue should never be blocked, even temporarily as it could cause a potentially fatal build-up of carbon monoxide within the house.

50. In his evidence to the Committee, the Respondent denied building the extension around the boiler flue. He stated that the flue was discharging into the open air and that a window was kept open. When it was put to the Respondent that if the flue was discharging into the open air then there was no need for a window to remain open, he accepted that there was no open space, that he had told his workmen to keep a window open for the flue to discharge, and it was “unfortunate my boy closed the window”. The Respondent stated that he was aware of the dangers his conduct posed, but that he did not intentionally place the Complainant and her family at risk.

51. In relation to the installation of the new boiler that was fitted under the instruction of the Respondent, the Committee noted the Complainant’s concerns and considered the subsequent inspection report of 8 October 2020 by British Gas. The report noted a number of issues regarding the boiler, including inadequate access to the boiler and the condensate pipe not correctly terminating, and that the boiler was deemed unsuitable for a maintenance contract.

52. The Respondent stated that neither he nor the engineer who installed the new boiler were responsible for the issues raised by the Gas Board. The Respondent blamed the Complainant saying that “she saw no space in the kitchen and said put it there temporarily. She had changed her mind.” The Respondent claimed that the boiler was accessible as the worktop and cabinets were installed later and were not fixed in place. When asked in cross examination why he had allowed for kitchen units and a worktop to be installed when he knew the boiler could not be serviced or accessed, the Respondent replied, “it only needed to be serviced one a year.”

53. The Committee preferred the Complainant’s straightforward evidence which was corroborated by the contemporaneous evidence of the Gas Safety Agent’s RIDDOR inspection of 16 May 2020, the inspection by British Gas on 8 October 2020 and the subsequent inspection undertaken by the Inquirer. The Respondent disagreed with the Inquirer’s findings; however, he was unable to provide satisfactory explanations to the Committee in relation to the issues concerning the unsafe gas boilers.

54. The Committee considered the Building Regulations 2010 (“the Regulations”) “Combustion appliances and fuel storage systems J” which states that all combustion installations must be accommodated in ways that meet the requirements of the Regulations. The Committee had regard to the following in the Regulations:

• • J2: Discharge of products of Combustion: Combustion appliances shall have adequate provision for the discharge of products of combustion to the outside air;
  • 3.5(g): Any flue must be installed in a safe position and must be adequate, suitable and effective for use with the appliance it services;
  • 3.5(h): no alteration is allowed to any premises in which a gas fitting or gas storage vessel is fitted which would adversely affect the safety of that fitting or vessel, causing it to not longer comply with the Regulations.

55. The Committee determined that the requirements set out by the Regulations in relation to the boilers were not fully complied with by the Respondent, and this should have been apparent to the Respondent when carrying out the work or when work was carried out under his supervision.

ii) Flashing between rear (lower) roof and adjoining wall

56. The Respondent stated that the roof was temporary, and sealant had been used to prevent water ingress rather than flashing. Video 1 and the photographs showed that roof tiles had been added. When asked why flashing had not been applied, the Respondent stated, “why would I apply flashing if it (the roof) was going to be dismantled”. In response to Committee questions the Respondent stated that if planning permission had been granted, the roof would not have to be dismantled and he would have placed lead flashing in white plastic cladding so that the timber would not be exposed. The roof tiles would have stayed in place with a flashing over the top.

57. The Committee considered that it was simply not credible that the Respondent and Complainant would go to the time and expense to put roof tiles on a temporary roof. The Respondent stated the approach he had taken was agreed with the Complainant, but he was unable to provide evidence of an agreement. Taking account of the Inquirer’s Report and the photographs, the Committee concluded that the Respondent used inadequate materials on the roof to prevent water ingress and the works were not carried out in a workmanlike manner (Regulation 7 of the Building Regulations). Further the Committee considered the Respondent’s proposed flashing solution to the roof would also have not complied with Building Regulations.

iii) Patio door cill

58. The Respondent initially accepted that the bottom of the door cill was level with the ground. He stated that the garden and external works were not yet complete, and that drainage was going to be in place. When it was put to the Respondent that drainage was not possible in view of the door cill being level with the ground, he replied “the door is not level as you are saying”.

59. The Respondent did not accept that water could come into the property. He stated that there was draining material underneath; however, when asked by the Committee he was unable to explain what that material was.

60. The Committee considered Video 1, the photographs and the Inquirer’s evidence. It preferred the evidence of the Inquirer. The Inquirer stated that water flowing into the property was possible, and there ought to have been a drain in place. The Committee was not satisfied from the Respondent’s evidence that he had considered the need for a drain, or, in the alternative, lowering of the ground. The Committee was of the view that the Respondent demonstrated inadequate workmanship as water ingress was possible, and there was a risk of damage, damp and rot to the property.

iv) Loft/ mezzanine floor constructed in the rear extension with inadequate means of escape in case of a fire

61. A mezzanine/loft floor was constructed within the rear extension of the property. The Complainant stated that the Respondent suggested she could have extra room at the back. In the Inquirer’s opinion the Respondent had created an inner room without an adequate means of escape. The Respondent disagreed with the Inquirer’s evidence. His evidence was that it was not a room but a space for storage and therefore an escape route was not required. He denied attempting to put in an additional storey under the guise of a roof.

62. The Committee noted the following in the Respondent’s email of 4 June 2020 to the Complainant: “Internal works to the rear extension to provide a bedroom with en-suite on the loft space” under the heading “Phase 2 works agreed price and payments”. There was no mention of any drawings for works to this area and the works were not included in the second planning application or the building control submission. In his written submissions of 25 December 2020, the Respondent stated that he was told by the Building Control Officer during a site visit that the “mezzanine might be considered as a loft and might be subject to fire escape route…”.

63. The Committee preferred the evidence of the Inquirer and the Complainant that a mezzanine floor was constructed intending to be habitable. Their evidence was corroborated by the Respondent’s email of 4 June 2020. There was no corroboration before the Committee of the Respondent’s assertion that the space was intended for use as storage.

64. In answer to questions from the Committee, the Respondent stated that as the space was intended for use as storage an escape route was not required and that a ladder was an acceptable means of escape. In the Inquirer’s opinion the means of escape were inadequate because the staircase came into the back of the property and into the kitchen and did not connect directly to the hallway. The installed roof light did not provide an acceptable escape. The Committee determined that the Respondent had never considered an alternative means of escape as required by the Building Regulations: Approved Document B Volume 1 section 2 which detail the escape requirements from upper storeys of a dwelling house. In the Committee’s view, the loft/mezzanine room did not provide an adequate means of escape and could have been a life safety risk.

65. Accordingly, the Committee concluded that the Respondent did not carry out work and ensure that work carried out was in accordance with Building Regulation requirements. It finds Particular 2 proved in relation to the above breaches. The Committee did not consider there was sufficient evidence of works not being carried out in accordance with Building Regulations in relation to the remaining concerns set out in the Inquirer’s report.

66. The Committee next considered Standards 2.1 and 6.1. Standard 2.1 of the Code expects an architect to be competent to carry out the professional work they undertake to do, and if they engage others to do that work they should be competent and adequately supervised. Standard 6.1 of the Code expects an architect to carry out their work with skill and care, in accordance with their terms of engagement.

67. In the Committee’s view Standard 2.1 was engaged. The Respondent ought to have ensured that the works carried out were in accordance with Building Regulation requirements. In the Committee’s view the works discussed above failed to comply with requirements, carrying implications in relation to expense, delay, and the health and safety for the Complainant and her family.

68. The Committee also determined that Standard 6.1 was engaged. The Respondent had an obligation to carry out his work competently and with skill and care and the Complainant was entitled to rely on the Respondent’s technical knowledge and experience. The Respondent ought to have taken necessary steps to ensure that the works were compliant with regulations. His failure to do so was a failure to comply with the requirements of the Code.

Particular 3

3. The Respondent:

(a) supervised and/or carried out work without planning permission;

(b) gave inadequate and/or incorrect planning advice to his client.

69. The Committee noted the documentary evidence and the evidence of the Complainant and the Respondent that several changes were made to the build project that were variations to the approved planning permission.

70. The Committee considered the works the Respondent is alleged to have supervised and/or carried out without planning permission as summarised in the Inquirer’s report:

• • Changed the roof profile of the rear extension from a gable end roof to a hipped roof;
  • Changed the roof profile of the side extension from a flat roof to a hipped roof;
  • Change of the roof profile of the garage roof by increasing the ridge height by 0.8m and moving the ridge towards the rear of the Property by approximately 1.7m;
  • Adding of two sloping roof lights to the new roofs facing the rear of the Property;
  • Adapting the first floor windows to the rear of the main house in order to accommodate the redesigned rear extension roof;
  • Making the rear patio doors 1.5m narrower;
  • Increasing the height of the flank wall of the garage in the blockwork rather than brickwork;
  • Moving the front wall of the garage forward by an extra 4m;
  • Constructing a mezzanine/loft floor within the back extension;
  • Lowering the floor level of the rear extension;
  • Building the rear and side extension in rendered blockwork instead of

71. The Respondent did not deny these works were undertaken. He said that some of the works were temporary and would be removed if planning permission was refused. The Committee noted the revised agreement dated 14 March 2020 which referred to some of the proposed variations.

72. The Committee considered the planning application submitted on 25 May 2020 by the Respondent. It noted that the Respondent stated that works had commenced on 1 April 2020 with the existing planning permission in place (approved in August 2019 for a single storey extension at the side and rear of the property), but during the course of the works variations were made that deviated from the permission granted of which the most apparent were the addition of the mezzanine and change of roof shape. The Complainant said that she agreed to works starting because the Respondent had advised her there was approved planning in place and that he would obtain further planning permission when undertaking work on the roofs. The Complainant told the Committee that she was not informed of the cost consequences and the risk of enforcement should planning not be granted.

73. The Committee considered the email dated 4 June 2020 from the Respondent to the Complainant, updating the Complainant on the works and requesting payments. The Inquirer stated that the internal works to the rear extension to provide a bedroom with ensuite on the loft space and works for the flat roof electric window and PVC windows were not covered by either the first planning permission or the second planning application. The Complainant stated that she only discovered that permission was required for these works following conversations with Mr LF, the Building Control Officer at Greenwich Council. The Complainant stated that Mr LF visited the site in June 2020 and advised the Respondent not to continue works whilst permission was sought but this advice was ignored by the Respondent. The Committee noted the email from Mr LF to the Complainant dated 1 October 2020, in which Mr LF stated that he had advised the Respondent “to put the work on hold till he obtained the necessary Planning and Building Regulations approval. He insisted that He has applied for Planning Variation and was confident that it would be granted him. He insisted that you gave him authority to carry out the work and all the changes being the Architect and engineer.”

74. The Complainant stated that the Respondent was told the May 2020 planning application was not going to be approved and therefore a decision was made in late July 2020 to withdraw that application. The Complainant states that she was advised by the Respondent that despite the application being withdrawn works could proceed and that new legislation was being introduced where works could be carried out and then the Council would approve the works once built. The Respondent further advised the Complainant that she would be fine if she was not selling the property within the next five years.

75. The Committee next considered the evidence of the Respondent. He told the Committee that the some of the works, such as the raising of the roof and building of the mezzanine, were undertaken so that the Complainant could visualise the final outcome. The Respondent referred to a 3D drawing he provided to the Complainant, stating it was one of the various 3D drawings he had provided to her. The Respondent produced one 3D drawing to the Committee.

76. The Respondent also stated that he verbally advised the Complainant that works required planning permission and there was a risk if it was not granted. The Respondent referred the Committee to the following text in the agreement dated 14 March 2020: “As previously discussed with you, please be informed that there are owner’s risks with Changing of the roof, it may be objected by neigbhors and the planning department may enforce a planning permission.” [sic]. When it was put to the Respondent that this one sentence did not explain enforcement action in practical terms, he replied “it was not possible to put it in writing. She understood what I meant….Because we understood each other. We had long discussions. She had two degrees. She could ask.”

77. Having considered all of the evidence the Committee was satisfied that the Respondent supervised and carried out work without planning permission and that the Respondent gave inadequate and incorrect planning advice to the Complainant. The Committee was satisfied for the following reasons:

(i) There was an agreement regarding the scope of works dated 14 March 2020. The Respondent started work on 1 April 2020. Planning permission was not applied for by the Respondent until May 2020. There was no explanation from the Respondent why works began in April 2020, and the reason for the delay in applying for planning permission over two months later. The Respondent suggested that the Complainant “kept changing her mind” but this did not explain the delay in submitting the planning application in May 2020.

(ii) At no point during this period did the Respondent advise the Complainant of the risks of proceeding with works without planning permission in place for the variations. Had the Respondent provided this important advice it would have been in writing.

(iii) The Respondent stated that he did advise the Complainant of the risks of proceeding with works without planning permission and referred the Committee to the sentence in the agreement of 14 March 2020 as set out above. This advice was inadequate as it was limited to the risk of objections from neighbours. The Complainant was clear in her evidence that she would not have proceeded with the works had she been informed of the risks of doing so without planning permission. The Inquirer stated that it was possible to obtain retrospective planning permission for work already carried out, however, this did not mean that planning permission would be automatically granted and there was a risk that a retrospective application could be refused with the local authority issuing an enforcement notice to reinstate the property. The Complainant should have been fully informed of the position at the time, so that she could make an informed decision in relation to whether or not she wanted to expose herself to the risk of the approval sought being refused by the local authority and reinstatement costs.

(iv) It was simply not credible that the Complainant would proceed to the construction phase of a design only to visualise what it would look like. The Committee considered it was possible that the Complainant had not fully understood every aspect of the design or how it might look but nevertheless it was not plausible that she had agreed to spend money and time on a temporary structure which included insulation, wiring and tiling. Had she done so, there was nothing in writing from the Respondent to confirm this.

(iv) The Respondent delayed the project after withdrawing planning permission by informing the Complainant that legislation was coming in over the summer which meant that planning permission was not required for extensions to a property. The Inquirer confirmed the new legislation was not applicable to the Complainant’s property and planning permission was required to be applied for in the normal way. In cross examination the Respondent stated that he had not read the legislation, he had been told of it by friends and that “there were rumours new legislation is coming”. This approach of the Respondent in advising a lay client of legislative changes that he had not read himself and that were not applicable to the Complainant’s property, was woefully inadequate.

78. Taking all of the above into account, the Committee was satisfied in finding Particular 3(a) and (b) proved.

79. By reason of the facts found proved, the Committee finds that the Respondent acted in breach of Standards 2.1 and 6.1 of the Code. The Respondent modified the scope of works and supervised and carried out work which was not compliant with the planning permission in place. He also failed to advise the Complainant of the risks in undertaking works without planning permission. The Respondent gave inadequate and incorrect planning advice to the Complainant, and, by his own admission, was not familiar with legislation he advised the Complainant of.

Particular 4

3. The Respondent’s actions at particular 3(a) lacked integrity.

80. Standard 1 of the Code states:

Honesty and Integrity

1.1 You are expected at all times to act with honesty and integrity and to avoid any actions or situations which are inconsistent with your professional obligations. This standard underpins the Code and will be taken to be required in any consideration of your conduct under any of the other standards.

81. As an architect of considerable experience, the Respondent knew that he was supervising and carrying out works without planning permission in place. The Respondent stated in the May 2020 planning application that works had commenced on 1 April 2020. The Committee noted earlier in its decision that some of the variations to the approved planning were not referenced in the May 2020 planning application: for example, the internal works to the rear extension, the flat roof electric window and the PVC window. In the Committee’s view the Respondent never had any intention of applying for planning permission for these variations. In his email of 1 October 2021, the Building Control Officer told the Complainant that he had warned the Respondent “several times” and advised him to put works on hold until the necessary planning approval was obtained. The Respondent ignored the advice of the Building Control Officer and proceeded with carrying out extensive works to the property without planning permission. These works carried a significant risk to the Complainant of enforcement action. The Committee was satisfied that the Respondent’s conduct at Particular 3(a) was a breach of Standard 1.1. of the Code and amounted to a lack of integrity. The Respondent had failed to adhere to the expectations and standards of the architect profession. Accordingly, the Committee finds Particular 4 proved.

Unacceptable Professional Conduct (“UPC”)

82. Having found all of the particulars of the allegation proved and, having found that the Respondent had acted in breach of Standards 1.1, 1.3, 2.1 and 6.1 of the Code, the Committee went on to consider whether the Respondent’s conduct amounted to UPC.

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

84. In reaching its findings, the Committee considered all of the evidence presented to it, the submissions made by the Presenter and by the Respondent and accepted the advice from the Legally Qualified Chair which is a matter of record.

85. 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 result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect.

86. The Committee reminded itself that a finding of UPC is a matter for its own independent judgment and that there is no burden or standard of proof.

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

88. The Committee had regard to the case of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin) and noted that for a finding of UPC to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” is required. The Committee accepted that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions”. The Queen on the Application of Dr Malcolm Noel Calhaem v General Medical Council [2007] EWHC 2606 (Admin). The Committee also recognised that any failing must be serious.

89. In relation to Particular 1 (a) and 1(b) of the allegation, the Committee found that the Respondent did not appropriately manage the conflict of interest and did not obtain written and informed consent from the Complainant to continue acting as both an architect and contractor, and that he had breached Standard 1.3 of the Code.

90. The Committee considered the mischief envisaged by the breach of Standard 1.3 in the context of the present case was to prevent architects from benefitting financially when acting in a dual capacity as both architect and contractor. In the Committee’s view the Respondent was transparent about his roles to the Complainant at the outset. The Complainant stated that she was looking to appoint a builder, and when the Respondent attended the property, he advised he was also an architect. There was no apparent attempt by the Respondent to benefit from the conflict of interest financially, and the Committee accepted the Respondent’s evidence that when he met the Complainant, he wanted to help her achieve a positive outcome for her property. Those circumstances are such that the Committee has concluded that, notwithstanding the Respondent’s breach of the Code, his failing was neither so serious, nor carries a sufficient degree of moral opprobrium so that it can properly be said to amount to UPC.

91. In relation to Particular 2, the Committee had concluded there were four occasions where the Respondent did not carry out work or ensure that work was carried out in accordance with Building Regulation requirements. As an experienced architect the Respondent should have been aware of the Building Regulation requirements but had failed to adhere to them. The Committee considered that the Respondent’s conduct could be seen to go beyond a negligent oversight or a failure to have regard to the relevant regulations.

92. The Committee considered each of the concerns in relation to UPC. The existing boiler caused the carbon monoxide alarm to sound due to the inadequately ventilated flue. The potential consequences could have been fatal for the Complainant and her family. The Complainant asked the Respondent to speak to the Gas Safety Board agent who attended the property, but he refused. The new boiler installation did not comply with Building Requirements and was deemed unsuitable for a maintenance contract by British Gas. The Respondent oversaw the installation of the new boiler and the subsequent fitting of the kitchen units. The loft/mezzanine room which the Committee had determined was intended to be habitable could have been a fire safety risk due to the inadequate means of escape in the event of a The Respondent had clearly not considered an alternative means of escape as per Building Regulations. The inadequate and poor workmanship in relation to the patio door cill and roof tiles could have led to water ingress and subsequent damage to the property.

93. In the Committee’s view the Respondent’s conduct at Particular 2 could be characterised as a serious falling short of the standards required as it left the Complainant in a property that was potentially unsafe and at risk of damage. The non-compliance with Building Regulations could have had significant and potentially dangerous consequences for the Complainant and her family. The Respondent, as the only architect involved in this project, had an overall responsibility to ensure that the works carried out met the requirements of mandatory Building Regulations.

94. In relation to Particular 3(a) and (b), the Committee found the Respondent had breached Standards 2.1 and 6.1 of the Code. In the Committee’s view, the Respondent’s conduct in carrying out works without planning permission and not advising his client of the risks in doing so exposed the Complainant to a potential risk of enforcement and reinstatement costs. Whilst the Respondent claimed that planning permission may have been granted retrospectively, it was clear that for some of the variations to the agreed planning, permission had not been applied for at all. The Respondent should have ensured that the Complainant was fully advised of the position as it was her risk. He had only advised the Complainant of the risk of proceeding with the new roof profile without planning permission but not of the risks of the other changes. The Committee had determined that the Respondent provided inadequate and incorrect planning advice to the Complainant which it considered was a substantial falling short of the standard expected of a registered architect.

95. The Committee considered the Complainant’s evidence of the emotional and financial impact of the Respondent’s conduct on her, her family and her property. The Complainant had incurred significant costs in remediating the Respondent’s works. The Complainant explained that remedial works had included putting the kitchen back to its original place and removing all of the Respondent’s building including the roofing. At the time of ARB’s proceedings works were on-going.

96. The Committee was satisfied that the Respondent’s failure to explain the risks to the Complainant of proceeding with works without planning permission, the carrying out of work without planning permission, and his inadequate and incorrect planning advice to the Complainant were serious matters that amounted to UPC.

97. In relation to Particular 4, the Committee has found that the Respondent’s conduct at Particular 3(a) amounted to a lack of integrity. The Committee determined that the Respondent’s failings at 3(a) were serious. They have impacted on the reputation of the profession and led to the Complainant incurring significant costs and remedial works. The Respondent’s conduct was a significant falling short of the standards required of an architect. Members of the public and the profession would be shocked that an architect proceeded to supervise and carry out significant works to a property without planning permission.

98. The Committee therefore concluded that the Respondent’s conduct amounted to UPC on Particular 2, 3(a) and (b), 4, as set out above.

 

Respondent’s application to admit “Letter to PCC of 12 January 2023”

99. The Respondent applied to admit a two page typed document referred to as “letter to PCC of 12 January 2023” prior to the Committee handing down its decision on Facts and UPC. The Respondent submitted that the letter set out three matters that he wished the Committee to be aware of. First, he thanked the Committee for its assistance during the hearing. Second, he explained why he had decided not to engage further with these proceedings and third, the letter explained that there was a “plan B” agreement with the Complainant if planning permission was refused. The Respondent referred to an exchange of WhatsApp messages within ARB bundle to support his submission there was evidence of an agreement.

100. The Presenter, on behalf of ARB, in fairness to the Respondent, did not object to the Committee having sight of the Respondent’s letter. She submitted the letter was not relevant and its admission did not alter ARB’s submissions on Facts and UPC. It was a matter for the Committee what weight it attached to the Respondent’s submissions contained within the letter. The Presenter further submitted that the Respondent’s reasons for not continuing with the hearing as set out in the letter were previously explored at the Case Management Meeting attended by the Respondent at which ARB inquired with the Respondent what reasonable adjustments were required to assist him to engage in these proceedings.

101. The Committee accepted the advice of the Chair who reminded it of Rule 15 and the requirements of relevance and fairness and the principles from the case of TZ v GMC [2015] EWHC 1001 (Admin).

102. The Committee determined that the Respondent’s letter was not relevant. The Committee had already considered the WhatsApp messages when coming to its decision on Particular 3 as they were contained within ARB’s bundle. The Respondent’s submission was therefore not relevant. The Respondent’s reference to his reasons for non-attendance had previously been explored at a Case Management Meeting. There was therefore no unfairness or injustice to the Respondent in not admitting the letter.

103. The Committee proceeded to hand down its decision on Facts and UPC.

 

Proceeding in Absence

104. The Respondent did not attend the final day of the hearing. The Committee was provided with the following email from the Respondent dated 12 January 2023 timed at 22:41: “Please kindly thank the PCC. I came back late this evening and will be leaving early tomorrow. I will go through their decision when I come back tomorrow evening, reflect on the content and will endeavour to make necessary improvements. I will not be connecting tomorrow please.”

105. The Presenter applied for the Committee to proceed in the Respondent’s absence as it was fair to proceed having regard to the Respondent’s submission the day before that he was not intending to attend the hearing today and “will leave it in the PCC’s hands”. The Respondent had not provided a good reason for his non-attendance and he should not be allowed to frustrate the regulatory process. In all of the circumstances the Presenter submitted that the Respondent had chosen to voluntarily absent himself from the hearing and asked the Committee to proceed in his absence.

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

107. The Committee was satisfied that the Respondent had voluntarily absented himself from the hearing. The Respondent was informed by the Chair that the hearing will proceed in his absence and this was acknowledged and is a matter for the record. The Respondent’s email confirmed that he will not be attending. The Committee concluded that it was in the public interest to proceed in the Respondent’s absence and conclude the hearing.

 

Decision on Sanction

108. Having found the Respondent guilty of UPC, the Committee considered whether to impose a sanction, and if so, which one. The Committee carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the Legally Qualified Chair. It has borne in mind that the purpose of imposing a disciplinary order is not to punish an architect for a second time for the same offence, but to protect the public and maintain the collective reputation of the profession. It has taken into account the Respondent’s interests, the Sanctions Guidance (2022) and the need to act proportionately, taking into account all the aggravating and mitigating factors identified in this case.

109. The Committee was also mindful of the principle derived from the case of Bolton v Law Society [1994] 1 WLR 512 in that the collective reputation of the profession is more important than the fortunes of the individual member and that expulsion from the profession was appropriate for serious lapses. The Committee has exercised its own independent judgement.

110. In accordance with the Sanctions Guidance, the Committee first considered the seriousness of the case.  The Committee identified the following aggravating factors.

i) The Committee was informed that the Respondent was the subject of a previous sanction, a penalty order of £2,000 imposed on 18 June 2020 by a Professional Conduct Committee of ARB (and of which this division was unaware until after handing down its findings on Facts and UPC). That was a similar matter of the Respondent not providing his client with adequate advice in relation to planning in breach of Standards 2.1 and 6.1, and not carrying out his work with skill and care and in accordance with the terms of his engagement. There was considerable impact on the client both in terms of cost, delay and stress. The Respondent attended the hearing and denied the allegations throughout. In summary, his defence was that he was not the architect who drew up the plans, he had no obligation to advise the Complainant about planning, the Complainant was aware about the risks of proceeding without planning consent and there was no need for him to tell them of the risks and that the Complainant was not truthful. That PCC found the facts proved and the Respondent guilty of UPC. The Committee noted that the previous proceedings concluded in June 2020. It was shortly after the hearing when the Respondent provided the Complaint with incorrect and inadequate planning advice. The Committee considered that the Respondent, knowing that he had been found guilty of UPC for similar matters, ought to have made sure that his works at the Complainant’s property were done properly and that he provided correct planning advice to clients. The Committee noted the Respondent in his previous hearing had told that Committee he “could see and accept that the Committee had pointed out matters where he had not met professional standards, for which he apologised…He felt he had learned a lot from the hearing”. In view of the previous disciplinary findings, this Committee was not reassured that the Respondent “will endeavour to make necessary improvements” as stated in his email of 12 January 2023.

ii) There was a substantial risk of harm. The lack of compliance with Building Regulations had a significant effect in terms of safety to life and property. The concealed flue posed a significant risk of death or injury to the Complainant and her family, as did the inadequate means of escape from the loft room/mezzanine. The Respondent’s poor workmanship in respect of the roof and patio door cill posed a risk of harm as water ingress was possible leading to potential damage to the property.

iii) There was a pattern of poor conduct and competence that was repeated. The Respondent’s failings in relation to non-adherence to Building Regulations and proceeding without planning permission and failing to advise the Complainant of the risks in doing so, took place over a period of months and demonstrated a pattern of repeated poor conduct and performance.

iv) The Respondent has not demonstrated any insight in relation to his conduct and there has been a reluctance to acknowledge failings, even when evidence was put to him which contradicted his account. For example, the Respondent’s insistence that the loft/mezzanine was never intended to be habitable contradicted his email of 4 June 2020 where the loft/mezzanine was noted as a bedroom and ensuite. On the one occasion when the Respondent acknowledged a wrongdoing – keeping a window open for the boiler flue – he shifted the blame to one of his workmen who had “unfortunately” shut the window, thereby triggering the carbon monoxide alarm. When it was put to the Respondent that his actions placed the Complainant, her family and even his own work force at risk, he replied “we didn’t do anything intentionally to put the client in danger”. The Committee considered that at no point did the Respondent acknowledge his failings and he demonstrated no insight.

v) The Respondent maintained throughout the proceedings he had been unfairly wronged by the Complainant and that she was a “wicked opportunist”. He also referred to others as having wronged him, including the Building Control Officer to whom he referred to as a “liar”. The Respondent failed to take responsibility during the project. For example he refused to speak with the agent from the Gas Safety Board as his comments would be “incriminating”. When the Respondent was asked if it was his responsibility to give advice to the Complainant on planning permission, he replied “no my role is to show her the outcome via the planning portal but not to give advice.” The Respondent also demonstrated no insight into the impact of his actions on the reputation of, and public confidence in the profession.

vi) The remediation provided was limited. In relation to Particular 1, the Respondent’s remediation was limited to a two page document to demonstrate that he now used a revised contract to comply with Standard 1.1. The two pages provided were the first and last pages of the contract. On the first page the Respondent referred to the sentence “the services of this agreement will not incorporate the independent functions of an Architect”. On the same page the Committee noted the reference to a qualification of “Dr. Arch” next to the Respondent’s name. Not only was the revised contract provided to the Committee incomplete but it did not explain to a lay client what conflict of interest arose and what the implications were for the client going forward. The Committee considered that the Respondent still did not fully understand the requirements of Standard 1.1. In relation to Particular 2, there was no evidence of what steps the Respondent would take in the future to ensure awareness of and compliance with Building Regulations. The Respondent’s replies to Committee questions in relation to what steps he would have taken to prevent water ingress with respect to the patio door cill and roof were inadequate and did not reassure the Committee the Respondent’s conduct would not be repeated. There was also no evidence of corrective steps taken in relation to Particular 3 and an understanding  from the Respondent as to how his conduct at Particular 3(a) lacked integrity. Given that the Respondent has a previous disciplinary sanction for similar matters, the Committee considered the risk of repetition of the Respondent’s UPC was significant.

vii) The Respondent’s conduct resulted in significant emotional and financial impact to the Complainant. The Complainant incurred financial costs in remediating the Respondent’s works, and she had to instruct others to work on the property following the Respondent’s departure.

 

111. The Committee did not identify any mitigating factors. The Committee considered the two testimonials provided by the Respondent. It noted the writers of those testimonials did not comment on ARB’s proceedings or indicate any awareness of the allegation faced by the Respondent, and therefore the Committee attached very limited weight to the testimonials.

 

112. The Committee notes that the matters found proved are serious to the extent that the Respondent’s failings diminish 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 went on to consider sanctions in ascending order of severity.

 

113. In the Committees view, the serious circumstances of this case do not meet the criteria for a reprimand or a penalty order.

 

114. The Committee could not impose a suspension for the following reasons. First, the combination of repeated competence and conduct issues made this matter too serious for a suspension. Second, the lack of insight and remediation. Third, at the expiry of a period of suspension an architect was restored to the Register automatically. The Committee considered the risk of repetition identified in its decision precluded a sanction of suspension, as it had no confidence that the issues, both of competence and of conduct, would be remedied, so that a risk remained to the public and enormous damage to the reputation of the profession.

 

115. The Committee considered that the matters found proved are so serious that only erasure from the Register would protect the public and the reputation of the profession. Erasure from the Register is permanent, though an application may be made to ARB for re-entry after no less than two years. The Committee may make a recommendation as to a minimum period of time before such an application should be considered. The Committee recommends that no such application should be considered for three years from today.

 

116. This would mean that should the Respondent wish to return to practise as an architect, he would have to demonstrate that he has fully addressed the concerns giving rise to the UPC. This, the Committee concluded, was an essential safeguard to ensure that the reputation of the profession would be upheld. If the Committee imposed a suspension order, this would not be possible and hence, such a sanction would not be appropriate.

 

117. As he has been erased from the Register the Respondent is not permitted to use the title ‘Architect’ in business or practice (nor any reference to membership or fellowship of RIBA). This Erasure Order will be publicised for a period of five years after the date of sanction, as the Rules provide.

 

118. That concludes this determination.