Mr Tudor Radulescu
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
TUDOR RADULESCU (084617A)
Held on 26-30 September and 24 October 2022
By video conference
Sadia Zouq (Chair)
Robert Dearman (PCC Architect Member)
Rachel Childs (PCC Lay Member)
The Architects Registration Board (“ARB”) was represented by Mr Greg Foxsmith of Kingsley Napley LLP.
Mr Tudor Radulescu (“the Registered Person”) has attended and is represented by Mr Robert Stevenson of Russell Cooke LLP.
|The Professional Conduct Committee (“the Committee”) finds the Registered Person guilty of Unacceptable Professional Conduct (“UPC”). It did so having found the particulars of the Charge proved in that:
1) The Registered Person did not provide adequate terms of engagement to the Referrer contrary to standard 4.4 of the Architects Code.
2) The Registered Person did not carry out his professional work adequately and with regard to relevant technical and/or professional standards and policies.
3) The Registered Person did not deal with a complaint appropriately, contrary to Standard 10 of the Architects Code.
and that by doing so, he acted in breach of Standards 4, 6, and 10 of the Architects Code 2017: Standards of Conduct and Practice (“the Code”).
The sanction imposed is a Penalty Order in the sum of £1,500.
- The Registered Person is charged by the Architects Registration Board (“ARB”) with UPC, and Committee is responsible for deciding whether that allegation is found proved, or not.
- 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 registered person has been guilty of UPC.
- The matters asserted by the Committee to have occurred and which it is said amount (if proved) to UPC are the following:
- The Registered Person did not provide adequate terms of engagement to the Referrer contrary to standard 4.4 of the Architects Code.
- The Registered Person did not carry out his professional work adequately and with regard to relevant technical and/or professional standards and policies.
- The Registered Person did not deal with a complaint appropriately, contrary to Standard 10 of the Architects Code.
- The Registered Person registered with the ARB in 2015 and moved to the United Kingdom in 2016 from Romania where he worked as an architect. The Registered Person is an architect at Bee Architects Limited.
- The Referrer is a landlord and owner of a multi residential property in Hansa Close (“the Property”) which contains five apartments. The Referrer wished to increase the number of apartments within the building and wanted to engage the services of an architect to assist with the Property’s redevelopment. The Registered Person was recommended to the Referrer by a tenant.
- It is the Referrer’s evidence that he met with the Registered Person in May 2017 and expressly told the Registered Person that he required his expertise to help identify what changes to the Property were viable. There was no discussion about costs or what the Registered Person’s services included and that no terms of engagement were ever provided. An email dated 23 May 2017 was sent to the Referrer from AD, who was the Registered Person’s associate at Bee Architects Ltd, setting out a proposed initial workload and a fee. The Referrer instructed the Registered Person and states that the cost of the services came up as different phases of the project arose. The Referrer communicated throughout the project with both the Registered Person and AD.
- On 4 October 2017 the Registered Person submitted a planning application together with the Design and Access statement to Ealing Council (“the Council”). On 27 November 2017 the Planning Officer at the Council contacted the Registered Person via email to indicate that following a review of the plans, she would be recommending refusal as the proposal was not compliant with the London Plan (2016), and that the 2007 Unitary Development Plan (UDP) had been referred to in the application and that this had been superseded by the London Plan (2016) and the Development Management DPD (2013). As a consequence, the Registered Person was advised to withdraw the application and resubmit once the issues raised had been addressed.
- The Referrer’s evidence is that on 29 November 2017 the Registered Person withdrew the planning application without discussing this with him. The Registered Person subsequently informed the Referrer of the withdrawal of the plan stating that it was due to compliance with the London Plan (2016), but the Referrer’s evidence is that no clear explanations were provided despite his attempts to ascertain what amendments were required to the plan. Between November 2017 and March 2018, the Referrer states that he chased the Registered Person and AD frequently for an update on the revised planning application.
- The Registered Person submitted a second planning application on 8 March 2018. The second planning application was refused on 2 May 2018. The Registered Person sought the assistance of LH, the Head of Planning at Next Phase who indicated in an email of 7 June 2018 that there was not a robust case to appeal the decision and advised to redesign the scheme to overcome the refusal. The Registered Person also contacted a planning consultant, RS, to review the refusal. RS stated that there was a relatively small chance of success of appealing the decision. The Referrer did not appeal the decision due to the doubtful prospects of success and cost of appealing.
- On 11 June 2018 the Referrer received an email from AD and signed off by both AD and the Registered Person, advising against appealing the decision and suggesting redesign proposals that could be carried out on a ‘no planning permission/no fee’ basis. The Referrer responded on 11 June 2018 expressing his disappointment but agreeing to the proposal and requesting a meeting. Following this, AD recommended that the Referrer should instruct another architect in respect of the project. The Referrer responded on 6 July 2018 and indicated that he wished to continue to instruct the Registered Person. The Referrer reiterated this in a meeting with both AD and the Registered Person. However, the Referrer’s evidence is that he was told to hire a new architect.
- The Referrer later instructed a different agent who submitted a planning application on 23 November 2018. Planning permission was granted for one additional residential unit, and the project was subsequently completed.
- On 11 July 2020 the Referrer sent an email to the Registered Person setting out his concerns regarding the handling of the Property development. The Referrer received no response to his email. The Referrer made a formal complaint to the ARB on 27 August 2020.
- The ARB investigated the Referrer’s complaint and appointed an Inquirer, Ms Carol Norton, to provide a professional opinion. The Inquirer concluded in her report to the ARB that in relation to the first planning application, the Registered Person’s failure to reference and/or produce a design in line with the policies was a serious falling short of the standard expected of a reasonably competent architect. In relation to the second planning application, the Inquirer concluded that the Registered Person’s actions were a serious falling short of the standards expected, albeit not as serious as the failings of the first planning application.
- At the outset of the hearing the Registered Person admitted particulars 1 and 3 but denied that those particulars amounted to UPC. The Registered Person denied Particular 2, and therefore UPC was denied in respect of this particular also.
- In reaching its decisions, the Committee carefully considered the following documentary evidence:
- The Report of ARB’s Solicitor dated 22 July 2022;
- The Referrer’s witness statement;
- Ms HW’s witness statement;
- The Inquirers Report and Appendices dated 17 May 2022;
- Appendix A of the Inquirer’s Report and the documents referred to therein;
- The London Plan (2016);
- The Inquirers Addendum Report and Additional Documents dated 16 September 2022;
- The 767 pages of documents exhibited in the main bundle;
- The Registered Persons Representations dated 12 January 2021;
- The Registered Persons Further Representations dated 15 April 2021;
- The Registered Persons Further Documents dated 26 November 2021;
- The Registered Persons Draft Report and Further Documents dated 2 September 2022;
- The Registered Persons Addendum Report dated 23 September 2022;
- The Committee also heard live evidence from:
- The Referrer;
- The Inquirer;
- The Registered Person.
Application to admit documentation from the Investigation Panel
- During his cross examination of the Inquirer, Mr Stevenson, on behalf of the Registered Person, applied to admit the following documents into evidence:
- Preliminary decision of the Investigation Panel dated 22 March 2021;
- ARB’s letter inviting representations from both parties;
- An email dated 15 April 2021 from the Registered Persons former solicitors to ARB;
- Final decision of the Investigations Panel dated 11 May 2021;
- An email dated 28 May 2021 of the Registered Persons former solicitors to ARB.
- Mr Stevenson submitted the documentation was relevant to show there was a “basic and quite serious error in the way the ARB proceeded in having reached its preliminary decision”, and that there had been a breach of natural justice. He submitted that the application was made at this stage of the proceedings because he had questions to ask the Inquirer in relation to the London Plan.
- Mr Foxsmith, on behalf of ARB, opposed the application. He submitted that preliminary findings of an Investigating Panel were not relevant to the Inquirer’s expert evidence and this Committee’s considerations. Mr Stevenson can put questions to the Inquirer regarding the London Plan without the documents being admitted. In relation to the submission that there had been a breach of the rules of natural justice, Mr Foxsmith stated that Mr Stevenson had the option of submitting an abuse of process argument as a preliminary legal argument at a Case Management Meeting.
- The Committee accepted the advice of the Legally Qualified Chair (“the Chair”) who reminded it of Rule 15a of the Professional Conduct Committee Rules (“the Rules”), and the requirements of relevance and fairness. The Committee determined not to admit the documentation into evidence as it related to the Investigating Panel considerations and was not relevant to this Committee’s understanding and consideration of the evidence. The Committee noted the documentation had been made available to the Registered Person since May 2021, and the Inquirers Report was available since 17 May 2022, and the Inquirer’s addendum report available since 16 September 2022. The concern that there had been a breach of natural justice by the ARB ought to have been raised as a preliminary legal argument at a Case Management Meeting.
- Taking into account the second part of Rule 15a and considering fairness to the Registered Person, the Inquirer was part-way through cross examination and questions regarding the London Plan can properly be put to her by Mr Stevenson. The Committee considered that there was nothing substantive in the documentation from the Investigation Panel that was relevant to consideration of the charge that was not already contained within the evidence before the Committee. In these circumstances the Committee could identify no unfairness to the Registered Person in refusing to admit the documentation.
Application to exclude the evidence of the Inquirer for apparent bias
- At the conclusion of the Registered Person’s case, Mr Stevenson indicated that he wished to make an application to exclude the evidence of the Inquirer for apparent bias. The Inquirer had remained present as an observer in the hearing following her evidence. Mr Stevenson applied for the application to be heard in private to prevent the Inquirer from embarrassment. Mr Foxsmith opposed the hearing of Mr Stevenson’s application in private.
- The Chair reminded the parties and Committee of Rule 21, that a hearing of the PCC shall be conducted in public unless, in the interests of justice or for other reason specified in Article 6 of the European Convention of Human Rights, the Committee directs that all or part of the hearing shall be conducted in private. The Committee refused the application to hear Mr Stevenson’s application to exclude the Inquirer’s evidence in private. The Committee considered that it was in the interests of justice to ensure public scrutiny of proceedings, and to maintain confidence in the regulatory process.
- Mr Stevenson applied to exclude the Inquirer’s evidence for apparent bias. He submitted the Inquirer had been repeatedly appointed in the role of Inquirer by the ARB since 2009, and that she received approximately four instructions per year from the ARB and has no other income as an expert witness. Mr Stevenson submitted that the repeated instructions from the ARB raises the possibility of an unconscious effort on the Inquirer’s part to agree with the conclusions of the Investigation Panel. He further submitted that the Inquirer has a financial interest in agreeing with the conclusion of the Investigation Panel to refer allegations to a Professional Conduct Committee as it secures the Inquirer future instructions. Mr Stevenson quoted the case of Cofely Ltd v Anthony Bingham & Knowles Ltd  EWHC 240 (Comm) in which an arbitrator derived 25% of his income as an arbitrator from a single appointing body. He submitted that the circumstances of the Inquirer’s appointment gave rise to apparent bias in the fair and informed observer’s mind. Mr Stevenson submitted that he could not have made this application earlier as he did not possess the relevant information which was provided by the Inquirer in her answers in cross examination.
- Mr Foxsmith opposed the application to exclude the Inquirer’s evidence, submitting that it was ill judged and without merit. He stated that any criticisms of an Inquirer should have been made at the Case Management Meeting when the application to adduce the Inquirer’s report as expert evidence was considered by the Chair. Mr Foxsmith submitted that the Inquirer gave no answers in her oral evidence to suggest actual or apparent bias and distinguished the facts of Cofley from these proceedings as that case involved manipulation in the appointment of an arbitrator. Mr Foxsmith further submitted that the Inquirer was aware of her responsibilities as an expert and referred to the signed declaration at the end of the Inquirer’s reports which confirmed her understanding of her requirements as an expert. Mr Foxsmith submitted that the Inquirer’s oral and documentary evidence is admissible as a matter of law and the weight to be attached to it is a matter for the Committee.
- The Chair advised the Committee of the test of apparent bias as set out in Porter v. Magill  2AC 357, and the key characteristics of the fair-minded observer in the cases of Gillies v. Secretary of State for Work and Pensions  1 WLR 781 and Helow v. Secretary of State for the Home Department  UKHL 62. The Chair advised that in applying the test for apparent bias the Committee should consider all the circumstances including the independent Inquirer’s role of an expert, and fairness. She advised the Committee to consider the case of Cofley, and that it was a matter for the Committee at the fact finding and UPC stages to attach what weight it considered appropriate to the Inquirer’s evidence.
- The Committee carefully considered the submissions from the parties, the case law and the legal advice. The Committee determined that the fair-minded and informed observer would not conclude that there was a real possibility of apparent bias in the Inquirer’s evidence. Given the Inquirer’s signed declarations confirming her understanding of her duties and responsibilities the Committee did not consider that it was material that ARB had appointed the Inquirer continuously since 2009 and, in recent years, received on average four to six instructions from the ARB and that she held no other expert appointments.
- The Committee considered that the evidence of the Inquirer had been properly tested in extensive cross-examination. It did not consider that the criticisms made by Mr Stevenson justified the exclusion of the Inquirer’s evidence. The weight to attach to the Inquirer’s evidence was ultimately a matter for the Committee. In these circumstances the Committee could identify no unfairness to the Registered Person in refusing the application to exclude the Inquirer’s evidence.
Decision on Facts
- 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 cases of Dutta v GMC (2020) EWHC 1974 (Admin) and Gestmin v Credit Suisse  EWCA 3560 (Comm). The Committee noted the Inquirer’s evidence is that of an expert, and her duties of independence. It also considered that the Registered Person can provide opinion evidence based upon his specialist knowledge and experience as an architect, but that the Registered Person 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 Code.
- In reaching its decisions, the Committee carefully considered the live evidence of the Referrer, Inquirer, and the Registered Person, together with the documents set out at paragraph 15 above. It considered the submissions made by Mr Foxsmith on behalf of the ARB and by Mr Stevenson on behalf of the Registered Person.
- The Committee made the following finding of facts.
Particular 1 – Admitted and Found Proved.
- The Registered Person formally admitted this particular. He accepted that he did not provide adequate terms of engagement at the outset of the contract or throughout and that he had a professional obligation to provide the Referrer with full and adequate terms of engagement. The Committee considered the Registered Person’s written responses to the allegation in which he ascribed that he was not as familiar with the Code as he should have been and that his relationship with the Referrer was “friendly and informal.” The Registered Person stated that he “left all the administrative and legal duties in his (AD) hands and I was only focused on the architectural part” and “looking back now, I must admit this was a mistake…”. In his evidence to the Committee the Registered Person provided context to the allegation, stating that he was “drawn into this way of behaviour.”
- The Committee considered the email of 23 May 2017 from the Registered Person’s colleague (AD) to the Referrer. That email sets out the Registered Person’s initial work and his fees. It is not submitted by either party that this email is put forward as the terms of engagement. The Committee notes the email appears to be the first documented communication from the Registered Person to the Referrer.
- The Committee considered the unchallenged witness statement of Holly Wignall (Investigation Manager at the ARB) that when an individual with an EU Qualification applies for registration with the ARB, they must complete an application form. A blank application form 2015 was provided to the Committee. The form required the Registered Person to sign and confirm that they have read and understood the Architects Code: Standards of Conduct and Practice. To apply for successful registration, the Registered Person signed the form confirming the same. The Committee considered that the Registered Person’s informal relationship with the Referrer and his unfamiliarity with the Code at the time did not excuse his professional obligations to abide by the Code.
- Standard 4.4 of the Code states that an architect is expected to ensure that they enter into a written agreement with the client which adequately covers a number of matters including the scope of the work, who will be responsible for what and details of fees and/or the method of calculating fees. Further guidance is provided under Standard 4.4. The architect is expected to enter into this written agreement with the client prior to undertaking any professional work.
- The Committee was satisfied that the Registered Person did not provide adequate terms of engagement. Further, the Committee determined that the Registered Person acted in breach of Standard 4.4 of the Code.
Particular 2 – Denied and Found Proved.
- In reaching this decision, the Committee carefully considered the evidence of the Registered Person, the Referrer and the Inquirer.
- The Committee considered the Inquirer’s evidence to be credible and her conclusions well-reasoned. The Inquirer was able to explain the technical and professional standards and policies relevant to the planning applications. Her oral evidence to the Committee was consistent with her reports and exhibits.
- The Committee found the Referrer’s evidence overall to be credible and consistent with his witness statement, and his complaint to the Registered Person and to the ARB. The Committee noted that at times his evidence was tinged with frustration, and that he was sometimes keen to overstate his lack of experience in relation to property development and planning applications. It was clear to the Committee that he was interested in maximising rental income from the Property, despite sometimes downplaying this in his oral evidence. There was nothing, however, in the Referrer’s evidence that suggested he was in anyway dishonest about the nature of the communications with the Registered Person throughout the planning application process. The Committee accepted that the Referrer’s communications with the Registered Person took place predominantly via telephone. Corroboration of these conversations with the Registered Person was therefore limited, however the Referrer was clear in his evidence when he could not recall aspects of the conversations. Overall, the Committee considered the Referrer’s evidence to be generally reliable, particularly in relation to the timeline of the planning applications in 2017 and 2018.
- The Committee considered the Registered Person’s evidence to be credible and was of the view that he was doing his best to assist the Referrer to achieve a positive outcome and was genuinely disappointed he did not. The Committee considered the language difficulties faced by the Registered Person and it also considered that his communications with the Referrer were predominantly via telephone. However, the Committee noted that at key points in his oral evidence the Registered Person was vague. For example, when asked why he did not tell the Referrer the first planning application was to be withdrawn, the Registered Person replied, “I’m not remembering well, but I recall communicating everything with him, so I might be telling him.” The Registered Person’s documentary evidence was also, at times, inconsistent with his oral evidence. For example, at no point in the email correspondence concerning the first planning application did the Registered Person suggest that it was anticipated the application could be refused.
The First Planning Application
- The first planning application for the development of the Property was submitted in early October 2017 and withdrawn on 29 November 2017 by the Registered Person following feedback from the Planning Officer at the Council that the plans would not be approved due to a lack of compliance with relevant policies and standards.
- The Registered Person agreed with the list of relevant planning policies set out in the Inquirers Report and that a reasonably competent architect would have been aware of the London Plan and aware that the London Borough of Ealing had its own planning policies on the Council’s website. In cross examination he stated, “of course I know about (the London Plan) … proof is I have multiple applications granted”. The Registered Person confirmed that he checked the London Plan at the time and that his proposals were compliant with the London Plan and the Council’s policies.
- In relation to the plan failing to meet the space standards, the Inquirer’s evidence to the Committee was that space standards are in a national document, and they set the minimum space standards for new dwellings. In his evidence to the Committee the Registered Person stated “…there was the budget problem and we together decided to go for the least disruptive scheme for the building as presented in the first planning application. This is why the layout doesn’t meet the requirements of the minimum space standards.” The Committee determined that the proposal was below the minimum required space standards.
- In relation to the concerns of overlooking and loss of privacy, the Inquirer’s evidence was that on its own it is not a serious issue, but when combined with the other omissions on the planning application it makes it harder to gain planning permission. The Registered Person agreed with this statement. The Committee noted the comments of the Planning Officer in her email dated 27 November 2017 “…the windows proposed at first and second floor levels are likely to cause significant overlooking of, and therefore loss of privacy to, the neighbouring properties….”. The Committee considered that the Registered Person ought to have been aware of this concern and the relevant policy.
- In relation to the concern of a poor outlook from the bedrooms located below the new overhanging second floor, the Committee noted the Inquirer’s conclusion and the Registered Person’s response to this criticism “it’s about calculating natural light into a room. It’s not idealistic way to design but it’s also not hard. I don’t think this is a big issue.” He said that he told the Referrer about his concern of the proposal impacting natural light and that “we decided to go for this scheme. I tried to work within these boundaries and if not excellent at least brought in sufficient light into the building.” The Registered Person referred to the second planning application stating, “we tried to demonstrate daylight hours there”. The Committee had regard to the relevant Ealing policy “New developments must achieve a high standard of amenity for users and for adjacent uses by ensuring…good levels of daylight and sunlight…”, and that “extensions to existing development should ensure that the resulting development as a whole meets design standards.” The Committee considered the proposal would have had a detrimental effect on the outlook, daylight levels and amount of sunlight and sky visible from the rooms.
- The Inquirer states in her report that the plan of the four flats did not provide high quality indoor spaces and the poor layout design did not meet the requirements of the London Plan. In his evidence to the Committee the Registered Person responded to this criticism “it’s debatable. It’s not like I agree or disagree, I’m in the middle. I did the best for this layout to be liveable in these conditions.” The Committee considered the London Plan at Policy 7.6 Architecture which states that building structures should provide high quality indoor and outdoor spaces and integrate well with the surrounding streets and open spaces. The Committee agreed with the Inquirer’s conclusion that this was a poor layout design.
- The Inquirer states that the planning submission failed to show the context of the building, access arrangements and amenity space. The Committee had regard to the Design and Access Statement and photographs. The photographs do not show how the new design fits within the context of the neighbouring buildings. In cross examination the Inquirer disagreed with the question that the Design and Access Statement put the Property in context. In his written representations the Registered Person stated that it is up to an Architect what is / is not included in a Design and Access Statement. He referred to the third successful planning application by another agent which did not include any in-context presentation, and therefore “this aspect is not essential as no such context was provided in those applications DAS.” The Committee noted the comments of the Planning Officer to the Registered Person in her email of 27 November 2017 “I also suggest you provide plans with your new application that show the building within its context and plans showing the access arrangements and amenity space.” The Committee considered that this information is usually required for planners to determine how the proposal fits within the existing built environment.
- The Inquirer states the application did not meet the requirements for amenity space in line with the relevant policy. The proposal reduced the amount of private garden space for two of the ground floor flats and provided no new private space for the second-floor flats. In his written representations, the Registered Person disagreed with the Inquirer’s opinion “it was not a crucial element in the refusal, as no amenity space at all was provided in the third successful application.” Mr Stevenson submitted that if amenity space was crucial to the success or failure of the application, it was not important in relation to the third and fourth planning applications. The Committee determined that it would be incumbent for an architect to know that when increasing the number of units by four, the requisite amenity space has to also increase in line with the relevant standards and policies. The fact that there had not been an increase in amenity space in the subsequent successful was, in the Committee’s view, likely to be due to the fact there was only one additional proposed unit instead of four.
- In an email dated 11 June 2018 the Registered Person advised the Referrer the reason for the refusal and of the detail within the London Plan that the proposed development did not comply with. He stated that “this information is not available until you get refused planning permission, which is one of the obscure aspects of English planning laws; you also know that we tweaked the design based on their initial feedback so as such it was as close as we could get it for the maximum number of apartments. However, as Alex mentioned at the start the least risky path would be to convert the roof space into habitable space by using dormers and this would in effect create two habitable units and as such we would advise that we regroup and consider this as the best option”.
- The Committee noted from the evidence before it that this statement from the Registered Person was incorrect as this information was readily available in the London Plan (2016) and the Registered Person told the Committee he was aware of the London Plan and relevant Council policies at the outset.
- The Committee considered the Registered Person’s evidence that the first planning application was submitted in the full knowledge that it was not submitted for approval, and that the Referrer was aware of this, and that approval would have been sought subsequently. The Committee considered the documentary evidence, namely the email correspondence in relation to the first planning application. There was no evidence that the Registered Person had communicated to the Referrer that the planning application was not submitted for approval. The Committee noted an email from the Registered Person to the Referrer dated 31 October 2017 in which he attached the validation form from the Council and stated, “Fingers Crossed”. The Registered Person told the Committee in evidence he was “optimistic” the application would be approved but “I never let the client know about the chances of success, this is unfair”. The Committee preferred the evidence of the Referrer and was satisfied that the Referrer should have been fully informed of the position in relation to the first planning application at the time. If the intention of the Registered Person was always to submit the application and then, after receiving feedback from the Council, have that application withdrawn or the application was refused, then this approach should have been carefully documented and confirmed with the client prior to submission. This position was supported by the Inquirer who gave evidence that the Registered Person ought to have warned the Referrer of the possibility of refusal so that he could make an informed decision.
- Having considered all the above, the Committee was satisfied, on the balance of probabilities, in relation to the first planning application, that the Registered Person did not carry out his professional work adequately and with regard to relevant technical and/or professional standards and policies.
The Second Planning Application
- The Registered Person advised the Referrer to submit a second planning application. In an email to the Referrer dated 5 January 2018, the Registered Person sent modified drawings adding that “all the changes took into consideration details like overlooking, natural light, GIA related with London Plan, windows dimension related to London Plan, and so on.”
- The second planning application was received by the Council on 8 March 2018. The Referrer in his evidence states that the Registered Person “expressed a positive outcome” regarding the application; “he said leave it with me, we’re working on it and we’re dealing with satisfying the planning officer.” The application, however, was refused on 2 May 2018.
- The Committee considered the Council’s reasons for refusal of the second planning application and the Inquirer’s evidence which identified why the application was not suitable. The Inquirer’s evidence points to two main aspects that were unacceptable: the impact on residential amenity, and the amenity space and communal areas. In the Inquirer’s opinion the Registered Person had submitted a design for planning that was an overdevelopment of the site. Further, there was insufficient space on the constrained site to provide the required amenity and parking spaces to meet the required planning standards. The Inquirer stated that the overbearing design was not compliant with relevant policies, and the amenity space and communal space proposals were not compliant with the London Plan and Ealing DPD Standards.
- The Committee considered the Registered Person’s evidence. In his addendum report dated 23 September 2022, the Registered Person stated “the second application did not meet the amenity space requirements of the Ealing Local Policy Plan D. This was simply because the available space around the footprint of the building was already at the maximum for the existing layout. Nevertheless, the Complainant wanted to proceed with an application to increase the GIA, or more properly the lettable area. The problem of this lack of amenity was not highlighted in the Planning Officer’s letter of the 27 of November 2017…. She simply recommended that in the next application access arrangements and amenity space including the building within its context”.
- In an email dated 22 June 2017, the Registered Person informed the Referrer that the “bigger extension option” was “not recommended because of its massive shape and shaded rooms which are against the building regs. [sic]” In his evidence to the Committee, the Registered Person stated, “of course it was an over development, but this is what was agreed with the client and explained in email.”
- The Committee acknowledged the Inquirer’s evidence that it was a “difficult site as it is overlooked by many properties and impacts many different neighbours”. However, the Committee considered that the question of whether the development was overbearing or not was subjective and had not been identified in the Planning Officer’s feedback following the first planning application. Therefore, in relation to the overbearing aspect, the Committee did not consider that the Registered Person failed to carry out his professional work adequately and with regard to relevant and/or professional standards and policies.
- However, the Committee considered fundamental issues regarding the amenity space remained and this aspect of the application was not compliant with the relevant policies and standards.
- The Committee noted that in his reports, the Registered Person refers to the success of the third planning application to support his assertion that the failure to comply in the second planning application with the amenity space criteria would not necessarily have resulted in a refusal. However, the Committee agreed with the Inquirer’s view that, because the third planning permission was for a single additional one bedroom two person flat within the sloping roof space, this would have “placed less emphasis on amenity space and car parking for a single additional unit, secure parking for one cycle space was required as a planning condition.” The Inquirer confirmed that the second planning application for an additional four flats was unlikely to have been successful for the reasons set out in her reports and evidence.
- Having considered all the above, the Committee was satisfied, on the balance of probabilities, in relation to the amenity space concerns in the second planning application, that the Registered Person did not carry out his professional work adequately and with regard to relevant technical and/or professional standards and policies. As such, the Committee finds that the Registered Person acted in breach of Standard 6 of the Code, specifically 6.1 which states: “You are expected to carry out your work with skill and care and in accordance with the terms of your engagement”.
Particular 3 – Admitted and Found Proved.
- The Registered Person formally admitted this particular. The Committee considered the Referrer’s email complaint dated 11 July 2020 sent to the Registered Person. In his complaint the Referrer set out his concerns and requested a response from the Registered Person. In his evidence the Referrer stated he never received a response to the complaint. He told the Committee that he did not telephone the Registered Person because he had been chasing him prior to submitting the complaint and his calls were not answered.
- In his written representations the Registered Person accepted that he did not acknowledge or respond to the Referrer’s complaint and that this was not in compliance with Standard 10.2 of the Code. He states that when he received the Referrer’s complaint in July 2020, he was advised by AD to ignore it.
- In his evidence to the Committee the Registered Person apologised to the Referrer, adding that he never had a failed project and an unhappy client. He was sorry that both he and the Referrer found themselves before the ARB and that this was not his intention. He did not, however, consider that his door was closed to the Referrer, but that personal circumstances took over during the pandemic. The Committee noted that this was the Registered Person’s only explanation in his evidence as to why he did not respond to the Referrer’s complaint.
- Standard 10.2 of the Code sets out timescales for responding to complaints and states that complaints should be handled courteously and promptly at every stage. The Registered Person did not provide an acknowledgement to the complaint within 10 working days, as required by the Code. He did not then provide a response within 30 working days, again as is required by the Code.
- The Registered Person ought to have provided both an acknowledgement and a full response that adequately dealt with the concerns raised by the Referrer. He did not manage or respond to the complaint in accordance with the requirements of Standard 10.2.
- The Committee found particular 3 proved and that the Registered Person’s failure was a breach of Standard 10 of the Code.
Findings on allegation of Unacceptable Professional Conduct
- Having found the above facts proved, the Committee went on to consider whether the Registered Person’s conduct amounted to UPC. UPC is a matter of judgment for the Committee, and no burden or standard of proof applied. UPC is defined as conduct which falls short of the standard required of a Registered Person. In reaching its findings on UPC, the committee recognised that not every shortcoming on the part of an Architect, nor failure to comply with the provisions of the Code, will necessarily give rise to disciplinary proceedings or a finding of UPC. 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. The Architect is expected to be guided by the spirit of the Code as well as its express terms and the fact that a course of conduct is not specifically referred to does not mean that there can be no finding in disciplinary proceedings even if there has been no clear breach of the express terms.
- In deciding whether the facts found proved amount to UPC the Committee had regard to Spencer v General Osteopathic Council  EWHC 3147 (Admin). It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions…a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”. The Committee also had regard to relevant ARB guidance and Standards 4.4, 6.1, and 10 and of the Code.
- Mr Foxsmith, on behalf of ARB, submitted that the facts proved amounted to UPC. Mr Stevenson, on behalf of the Registered Person, submitted that the Registered Person accepted that his conduct at Particular 1 amounted to UPC, but that his conduct at Particulars 2 and 3 did not.
- The Committee had already found that the Registered Person acted in breach of Standard 4.4. of the Code. The Registered Person had a duty to provide full and clear terms of engagement in writing at the outset of the project. A written agreement and terms of engagement are necessary to protect both the client and architect in the event of a dispute and remedy. Terms of engagement are essential to prevent confusion about the extent and scope of the service to be provided by the architect. The requirements in relation to terms of engagement in the Code are clear and unambiguous.
- A failure to provide adequate terms of engagement in this case was serious because it led to misunderstandings and confusion about important matters including expectations and the approach to planning. A dispute had also arisen between the Referrer and Registered Person regarding expectations and clarity regarding termination of the professional relationship which eventually resulted in a complaint from the Referrer. In the Committee’s judgement, the absence of terms and conditions amounted to UPC.
- The Committee considered UPC for Particular 2 in relation to the first and second planning applications.
- In relation to the first planning application, the Registered Person prepared designs that did not comply with standards and policies of which he should have been aware. He failed to communicate the prospects and risks of the application not succeeding to the Referrer. In the Committee’s judgement the Registered Person acted without the requisite skill and care expected when preparing the first planning application, the impact of which was that the Referrer had paid for an application that was unlikely to be approved (albeit it was ultimately withdrawn). He consequently suffered further expense, delay and inconvenience. The Committee considered the Registered Person’s conduct in relation to the first planning application adversely impacts on the reputation of the profession and in particular the Referrer’s view of the professionalism of the Registered Person.
- In relation to the second planning application, the Registered Person revised some aspects of the design to meet the planning requirements but failed to ensure the design was compliant with amenity space requirements. This failure however was not the sole reason the second planning application was refused. The Committee determined that although the Registered Person ought to have been aware of the amenity space criteria, and to have prepared plans to address these requirements, this falling short on its own was not so serious so as to amount to UPC.
- In conclusion, the Committee determined that the Registered Person’s conduct in relation to Particular 2 did amount to UPC, but only in terms of the approach he took to the first planning application.
- The Committee had already found the Registered Person’s failure to reply to the Referrer’s complaint of 11 July 2020 within the required timescales was a breach of Standard 10.2.
- Mr Stevenson submitted it was important for the Committee to consider the circumstances of the Registered Person at the time when the Referrers complaint was received. He submitted that the Referrer complained two years after he and the Registered Person had parted. The Registered Person queried whether the email was a phishing scam because the subject title and mode of address appeared different to previous communications with the Referrer. The complaint was received during the Covid-19 pandemic. At the time the Registered Person was employed by contractors on a project for Lidl. He had not received a signed contract from Lidl yet was working on and off their site. Mr Stevenson stated that this submission was not put forward on behalf of the Registered Person as an excuse, but it was important that the Committee considered the context of the Registered Person at the time.
- The Committee noted that in his written representations the Registered Person referred to personal challenges he was facing at home and work during the Covid-19 pandemic, and in cross-examination he stated “in normal circumstances” his conduct would amount to UPC.
- The Committee noted the Registered Person was aware that AD had been contacted via email by the Referrer in June 2020 with a complaint. AD forwarded the email to the Registered Person which he read and “felt treated unfairly”. The Registered Person told AD he wanted to address the matter with a specialist but was advised by AD not to because it looked like the Referrer “tried to bring me into something that needs to be avoided and it is obvious that what is stated there is not true”. However, the Registered Person received the same email from the Referrer on 11 July 2020 and he then “had a similar conversation with Alex and the advice was similar, to ignore it as the email was based on unfair accusations”.
- The Committee next considered the Referrer’s complaint. The complaint was sent from the same email address the Referrer used for correspondence with the Registered Person during the project. The subject title included the Property address and the words “urgent response required”. The complaint was set out in several paragraphs and ended with “please respond to my concerns in the preceding paragraphs…I look forward to your response”. The Referrers full name is at the end of the email. There was no doubt in the Committee’s mind that this was a genuine complaint from the Referrer and did not have the appearance of a phishing email or scam. Further it considered that the Registered Person’s response to the email at the time indicated that he took it seriously and did not consider it to be sent from anyone other than the Referrer.
- The Committee bore in mind the context in which the Registered Person received the complaint and concluded that the Registered Person had made an active decision to ignore the Referrer’s complaint following his discussion of the complaint with AD. In the Committee’s judgement the Registered Person’s conduct in not acknowledging or responding substantively to the Referrer’s complaint within the timescales set in the Code was serious and amounted to UPC.
Conclusion on UPC
- In all the circumstances and for the reasons set out above, the Committee finds that the Registered Person’s conduct does amount to unacceptable professional conduct. Members of the public and the profession would be concerned that an Architect had undertaken work without having any terms of engagement in place, and that an Architect had failed to acknowledge or respond to a complaint from their client. A failure by an Architect to adequately carry out their work in line with relevant technical and professional standards was serious, and in this case compounded by the lack of communication with the client. The failures eventually resulted in the client having to instruct another agent to develop his Property.
- The Committee concluded that the Registered Person’s breaches of the Code are serious and adversely impact both on his reputation and on the Architect’s profession generally. They represent a standard of conduct falling significantly and materially below the standard expected of a registered rchitect.
Decision on Sanction
- Having found the Registered Person guilty of UPC, the Committee considered whether to impose a sanction, and if so, which one.
- The Registered Person gave evidence, during which he referred the Committee to his website “Bee Architects” and spoke of the various building projects undertaken and positive reviews from clients and professionals.
- The Committee heard submissions from Mr Foxsmith on behalf of the ARB and from Mr Stevenson on behalf of the Registered Person.
- In reaching its decision, the Committee had regard to the Sanctions Guidance (2022) published by the ARB and accepted the advice of the Legally Qualified Chair. The Committee has exercised its own independent judgement.
- 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 Registered Person’s interests and the need to act proportionately.
- 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:
- Penalty order;
- Suspension (for a maximum of two years); and
- In accordance with the Sanctions Guidance, the Committee first considered the seriousness of the case.
- The Committee did not identify any aggravating factors. It identified the following mitigating factors:
- The Registered Person poses no risk of harm to clients and the wider public;
- The Registered Person’s conduct relates to a single project in an otherwise unblemished career;
- The Registered Person has expressed clear and genuine remorse;
- The Registered Person has demonstrated that he has developed sufficient insight into his failings;
- The Registered has taken steps to remediate his failings and provided evidence in relation to providing adequate terms of engagement and complaint handling. The Registered Person has also reflected on his past conduct and the Committee noted that there have been no further concerns raised since these matters occurred;
- The Registered Person has fully cooperated with the ARB’s investigation and these proceedings;
- The Registered Person admitted the facts of Particulars 1 and 3 at the outset, and that Particular 1 amounted to the charge of UPC;
- The Registered Person has positive testimonials from past clients detailed on his website which attest to his professionalism, experience and competence as an Architect.
- In the absence of aggravating factors and having regard to the mitigating factors present in this case, the Committee considered that the Registered Person’s UPC was, whilst serious, not at the higher end of the spectrum.
- The Committee was satisfied that the Registered Person had provided sufficient evidence of remediation. It had regard to Bee Architect’s Complaints Procedure and Terms of Engagement, addressing the concerns at Particulars 1 and 3. The Committee noted the Registered Person’s evidence in which he stated that any oral discussions with clients are followed up immediately with an email to ensure that everything is documented and communicated to the client. The Registered Person acknowledged his failings, stating “I now one hundred percent more understand than at the time. It is a different approach now. I will never do this again for anyone in the world. This is a huge lesson for me.” The Committee considered that the Registered Person’s insight and remediation provided reassurance that the risk of repetition in relation to the concerns was low.
- The Committee took into account the positive reviews from clients and professionals as detailed on the Registered Person’s website. It was mindful, however, that the authors of the testimonials would not be aware of these proceedings and the allegation of UPC.
- The Committee noted that the Registered Person undertook positive engagement work in regards to supporting building projects in under privileged countries, namely Ghana in Africa, where he helped in the building of a school. The Registered Person told the Committee that he was nominated for an award by the Local Authority Building Control (LABC). More recently, a church he helped design was shortlisted to be exhibited by a European Union organisation that is showcasing religious buildings. He has also been invited as a guest speaker to an event in Copenhagen, Denmark, regarding ecclesiastical buildings which he will be attending with others involved in the building project.
- Taking all of the above matters into account, the Committee concluded that there was a low risk of the Registered Person repeating his failings. The Committee was also persuaded that the Registered Person’s evidence that he would decline work from a potential client if asked to provide services that were not within acceptable boundaries, was genuine. The Committee was satisfied that in this case, the Registered Person’s appearance before the PCC has been a salutary experience as he stated, on more than one occasion in his evidence, that he did not want to be before the PCC and was upset that he was unable to achieve a positive outcome for the Referrer.
- Having determined that the risk of repetition of the conduct leading to the finding of UPC in this case was low, the Committee considered that a sanction was not required on the grounds of public protection.
- The Committee had previously determined that the UPC in this case was serious. The Committee therefore concluded that although it is not necessary to impose a sanction in every case where there has been a finding of UPC, in the Committee’s view, the Registered Person’s conduct damaged public confidence and brought the profession into disrepute and is too serious for a sanction not to be imposed.
- Having determined that it is necessary to impose a sanction, the Committee considered each available sanction in ascending order of severity.
- 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 cases which fall at the lower end of the scale of seriousness, and where it would be appropriate to mark the conduct of an Architect as being unacceptable. The Committee considered that the conduct that led to the finding of UPC, while restricted to a sole project, did encompass a number of different concerns and that the Registered Person’s conduct at Particular 3 was deliberate in that he took the active decision to not respond to the Referrer’s complaint. The Committee therefore concluded that a reprimand would not be sufficient to maintain confidence in the reputation of the profession or to declare and uphold proper standards of conduct.
- The Committee therefore went on to consider the imposition of a penalty order. The Committee had regard to the list of factors identified in the Sanctions Guidance as to when this may be an appropriate sanction and noted that this sanction may be considered where the offence is too serious to warrant a reprimand.
- The Committee decided that in the particular circumstances of this case, a penalty order was the necessary and appropriate sanction. In reaching this decision, the Committee took into account its previous finding that the risk of repetition of the UPC in this case was low and that therefore the main purpose of the sanction was not to protect the public but to maintain public confidence in the profession and to declare and uphold proper standards of conduct. The Committee was satisfied that a penalty order would meet those public interest requirements. The Committee was also satisfied that a finding of UPC by this Committee and a penalty order would be the proportionate sanction in this case.
- The Committee noted that its powers are limited to fines of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500. The Committee was satisfied that given the seriousness of this case, it would be appropriate and proportionate to impose a penalty order in the sum of £1,500.
- In reaching this decision, the Committee gave very careful consideration to the imposition of a suspension order. However, in light of the extensive mitigation, including the Registered Person’s admissions, his insight, his genuine remorse and the steps he has taken to remediate his practice, the Committee was persuaded that it would unduly punitive to impose a suspension order in his case.
- The Committee therefore imposes a penalty order in the sum of £1,500. This must be paid within 28 days.
- That concludes this determination.