THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

WILLIAM JOHN FALCONER (051076I)

Held on

20-27 June, 28 September, and 4 November 2022
By Video Conference

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Present:
Emma Boothroyd (Chair) Stuart Carr (PCC Architect Member) Martin Pike (PCC Lay Member)

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The Architects Registration Board (“the ARB”) was represented by Mr Greg Foxsmith, Ms Kathryn Sheridan and Ms Sarah Atkinson of Kingsley Napley LLP (“the Presenter”).
Mr William Falconer (“the Respondent”) was in attendance and was represented by Mr Ivor Collett of Crown Office Chambers.

 

Allegations

1. In this case, the Board is represented by Mr Greg Foxsmith. Ms Kathryn Sheridan and Ms Sarah Atkinson have also attended the resumed hearing on behalf of ARB in place of Mr Foxsmith. Mr Falconer has attended this hearing and is legally represented by Mr Ivor Collett. Mr Falconer faces a charge of UPC based on five particulars as set out below.

1) The Respondent did not provide adequate terms of engagement to the Complainant, contrary to Standard 4.4 of the Architects Code;
2) The Respondent provided inadequate construction stage design information and/or drawings;
3) The Respondent did not carry out his role as contract administrator adequately in that he:
a) Did not use an appropriate form of contract;
b) Did not complete the contract correctly;
c) Issued interim payment certificates on a weekly basis rather than four weekly, as provided for in the contract;
d) Did not issue a pay less notice on the Complainant’s behalf;
e) Did not follow contract remedies to terminate the contract on the Complainant’s behalf.
4) The Respondent did not ensure construction was carried out in accordance with Building Regulations;
5) The Respondent did not observe Statutory obligations in respect of:

a) Construction (Design and Management) Regulations 2015; and/or
b) Control of Asbestos at work Regulations 2012 and/or
c) The Party Wall Act.

2. This case arises out of a complaint made by Ms Smith (“the Complainant”) in respect of the professional services carried out by the Respondent in respect of the Complainant’s property at 24 Station Road (‘the property’).

3. The background to this case is that the Complainant received a recommendation from a friend who had worked with the Respondent previously on a project. In January 2016, the Complainant instructed the Respondent as architect to assist with a project to construct a separate four-bedroom dwelling in the garden of the property. Planning permission for this project was applied for in March 2016 and withdrawn in November 2016 when it became clear that the project was no longer feasible.

4. In December 2016 the Complainant instructed the Respondent to assist with an alternative scheme which involved demolishing an existing garage, extending the footprint, and constructing a two-storey building. On 7 December 2016, the Respondent emailed the Complainant with details of the fees he had incurred to date and an estimate for his fees moving forward with the new project.

5. Planning permission was granted on 28 April 2017 and a Building Regulations Application was made on 28 September 2017. The Complainant had agreed to use Structural Insulated Panels (SIPS) as a construction method. This involved a specialist company preparing the SIPS off site which would be attached to a timber framed construction. The Complainant stated that the Respondent recommended the contractor Mr KN as the builder on the basis that he had worked with him on a number of other projects. Mr KN provided a quote of £47,000.00 plus VAT for his part of the build which included demolishing the existing garage, setting out the new drainage and building the concrete footings and slab for the new building. The Complainant and Mr KN signed a JCT Minor Works Building Contract on 15 September 2017 which was provided and filled in by the Respondent. Works began on site on 15 September 2017. No completion date was stipulated in the contract, but the contractor had estimated that the work would conclude in 2018.

6. The contract appointed the Respondent as Contract Administrator in respect of the proposed works. The Complainant understood that the Respondent would be responsible for overseeing the work of the contractor and ensuring that the project was adequately supervised. Mr AS of JHAI was appointed as Building Inspector.

7. In October 2017 there was a change to the design of the proposed foundation. The Building Inspector requested details of the proposed raft foundation from a structural engineer in his report of 9 October 2017 before the builder could continue with the works. A structural engineer Mr PS was approached on 10 October 2017 and agreed that he could complete the work by 26 October.

8. The Building Inspector was called to site by the contractor on 8 November 2017 to inspect the works. The Inspector in his report of the 8 November 2017 confirms that he attended site at 4:00pm. The Inspector had still not received the structural details from the engineer. He was concerned about the reinforced steel cages that had been laid for the raft foundation. His report required the cages to be cut back and the cages to be raised from the ground on paviours. The report required adequate photographic evidence of this work.

9. The concrete was poured on the 9 November 2017. At this time the Respondent was incapacitated following an accident and had been in hospital. The Respondent attended the site during the course of the concrete pour but was not present for an extended period of time.

10. The Complainant became concerned after the slab had been poured that it was too short. It transpired that the slab was 600mm shorter than the original design. The Complainant stated that this came to light on the 13 November 2017 when the scaffolding company attended to erect the scaffolding for the SIPS company. The Complainant was further concerned that the reinforced steel had not been laid correctly as there were several surplus sheets of mesh remaining on site. There was also an issue with the drains and as a result of the shorter slab the inspection chamber was now underneath a wall. The Complainant states that she was very concerned about the quality of the work undertaken and in particular the impact that the shorter slab would have on the SIPS panels. The Complainant was also worried that the slab did not have the correct reinforcement and the photographs showed a deviation from the structural engineer’s design. The Complainant states that she telephoned the Respondent to raise her concerns and the Respondent attended the site on the 16 November 2017. The meeting was heated and the Complainant states that the Respondent left the site.

11. On 17 November 2017 the Respondent emailed the Complainant to say that the change in length of the slab “…is very unfortunate but the only alternative would have been to fill in the smaller septic tank and put additional load into the main tank. All of the slab was meshed. Although I could hardly walk that day I was there for a while when it was being concreted and saw the mesh in situ.” The Complainant was unhappy with this response and a site meeting was arranged with the Respondent, the structural engineer, the contractor, and the building inspector for 30 November 2017.

12. Following the meeting it was agreed that the structural engineer would prepare a design detail that would justify the work that had been carried out. However, the Complainant remained unhappy about the shorter slab and the impact that this would have on the size of the property together with the drainage runs which were not built as designed. There then followed an attempt to resolve these problems with the input of the structural engineer however in January 2018 the Building Inspector stated that the revised proposals were unacceptable, and a contravention notice was issued on 18 January 2018. That contravention notice was based on two issues, firstly the slab did not have adequate concrete cover underneath the foundation and secondly that the foul drainage run had an acute angled junction which discharged against the intended flow of the drain.

13. At this point it became clear that the only way to proceed was to dig up the slab and start again. The Complainant’s relationship with the contractor and the Respondent began to break down at this point. The Complainant refused to pay the contractor and the Respondent did attempt to assist to identify a contractor to remove the slab. On 7 February 2018, the Complainant asked for redress from the Respondent to cover her out of pocket expenses and the Complainant indicated she was considering legal proceedings. The Complainant states that she had a meeting with the Respondent at his office and he offered to waive his fees but that was the only offer of redress and so the Complainant stated that she had no alternative but to terminate her relationship with the Respondent and pursue legal recourse. This was ultimately abandoned as the Complainant did not have the money to proceed. The Complainant complained to ARB about the Respondent on 17 January 2021.

14. ARB appointed an Inquirer Ms Carol Norton to consider the complaint and she produced a report containing her opinion on 9 March 2022.

15. At the outset of the hearing the Respondent admitted Particular 1 and 2a. The remaining particulars are denied although some of the factual elements are conceded. The Respondent accepted that Particular 1 amounts to UPC. It is denied that the remaining particulars admitted amount to UPC.

16. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant, the Respondent and Ms Carol Norton, the Inquirer, together with the documentary evidence presented to it which consisted of the Report of the Board’s Solicitor and the main ARB bundle. The Committee has also considered the Respondent’s defence and witness statement and the exhibits attached.

17. The Committee retired to consider the allegation on 23 June 2022 and during deliberations an issue came to light regarding the drainage issue. Further clarification was sought from the Inquirer at the resumed hearing on 28 September 2022.

18. The Committee has accepted the legal advice given by the Legally Qualified Chair. It has had regard to the fact that the burden of proof is on the Board and that the civil standard applies, namely proof on the balance of probabilities. Whether the conduct alleged amounts to UPC is a matter for the Committee’s independent judgment to which no burden of proof applies.

The Committee makes the following finding of facts:

Particular 1 – The Respondent did not provide adequate terms of engagement to the Complainant, contrary to Standard 4.4 of the Architects Code

The Committee finds this particular proved for the following reasons:

19. The Committee has noted the Respondent’s admission that his terms of business were not compliant with the Code. Further the email sent to the Complainant at the outset of the project does not include the information required by Standard 4.4 of the Architect’s Code. In particular, there is no information about the responsibilities of the parties, no information about the Respondent’s insurance provision or that he is regulated by ARB. There is no information about the Respondent’s complaints procedure. The Committee considers that the terms sent to the Complainant were inadequate to comply with the requirements of Standard 4.4 of the Code.

Particular 2 – The Respondent provided inadequate construction stage design information and/or drawings

The Committee finds this particular proved for the following reasons:

20. The Committee accepted the evidence of the Inquirer that the drawings provided by the Respondent were “minimal.” Her evidence was that the drawings were inadequate for the construction stage of the project as they “…do not show the crucial setting out dimensions of the building in relation to the site.” In her report the Inquirer set out a list of standard construction drawing information that was missing. Further, she opined that, “The Respondent’s drawings should have provided setting out information coordinating the information provided by the SIPs installers and the Structural Engineer.” Whilst the Inquirer agreed that it would be a reasonable approach to lay out the dimensions following demolition, she also pointed out that this did not in fact happen. Further, she stated that there was no specification or schedule of work provided to the contractor to inform him about what materials or standard of workmanship was required.

21. The Respondent in his evidence stated that the site was a “tricky” one to lay out and really needed to be laid out on the ground. He stated that the parameters of the building were clearly laid out by the surrounding buildings. However, the Committee did not consider that this was a sufficient reason for the drawings to omit the crucial setting out information.

22. The other matters that the Inquirer stated were missing from the drawings included roof plans, staircase plan, surface water drainage, window and door schedules, a drawing issue sheet with properly numbered and dated drawings and information about the relationship of these drawings to a bigger scheme. The Committee accepted that some of these items were relatively minor in nature and could have been corrected as the project went on.

23. The Committee considered that overall, the Respondent provided inadequate construction stage design information and drawings as the build was well underway and the Respondent had not provided crucial setting out information of the building on site and had not provided an adequate package of construction stage design information or drawings to enable the building to be constructed.

Particular 3 – The Respondent did not carry out his role as contract administrator adequately in that he;

a) Did not use an appropriate form of contract;

The Committee finds this fact proved for the following reasons:

24. The Committee has noted the Respondent’s admission to this particular. The Committee notes that the contract used by the Respondent was purchased from RIBA but was in the process of being phased out as it did not contain up to date provisions. The Committee considers that it was not appropriate to use an out-of-date contract that did not contain all of the relevant provisions required by the law.

b) Did not complete the contract correctly;

The Committee finds this fact proved for the following reasons:

25. The Committee accepted the evidence of the Inquirer that there was no completion date inserted into the contract and there were no provisions for liquidated damages in the event of late completion.

26. It appears to the Committee, having examined the contract that this is the only area of criticism by the Inquirer regarding incorrect completion of the contract.

27. The Respondent stated that he did complete the contract document adequately for the client’s needs. However, the Committee considers that this is an important provision that should have been completed and it was reasonable to expect the Respondent as contract administrator to complete this part of the contract in order to provide a remedy for the Complainant.

c) Issued interim payment certificates on a weekly basis rather than four weekly, as provided for in the contract

28. It is not disputed that the Respondent issued interim payment certificates on a weekly basis not four weekly as stipulated in the contract.

29. The Inquirer suggested in her oral evidence that this meant that the Complainant was paying money sooner than she needed to. There was no suggestion that the Complainant overpaid as a result of this arrangement or that there was any improper motivation for this arrangement.

30. The Complainant did not raise any complaint with the payment arrangement or the frequency of payments at the time and there was no evidence that she would not have agreed to vary this aspect of the contract to weekly payments if the matter had been raised with her.

31. In these circumstances the Committee did not consider that this aspect amounted to an inadequate performance of the Respondents role as a contract administrator. Even if this aspect were proved the Committee did not consider that it would amount to UPC.

d) Did not issue a pay less notice on the Complainant’s behalf.

32. The Committee noted that the Complainant had refused to pay the contractor following the issues with the slab and the relationship was breaking down. It is factually correct that a pay less notice was not issued by the Respondent. The Respondent states that the situation was moving so quickly that there was no point in service of such a notice. The Respondent states that he was also aware that the contractor was not going to move forward with the project and had agreed to pay for another party to remove the slab which would have wiped out all of his profits.

33. The Committee considered that issuing a pay less notice would have protected the Complainant’s position should the builder have changed his stance. The letter sent by the builder to the Complainant on the 28 January 2018 suggested that the builder considered that the slab was fit for purpose subject to remedial works and the reason for removal was related to changes to the design. The letter also pointed out that there were sums outstanding for scaffolding and labour. In these circumstances the Committee considered that it was a possibility that the builder could seek to recover money and a pay less notice should have been issued by the Respondent in his role as contract administrator in order to protect the Complainant’s position.

e) Did not follow contract remedies to terminate the contract on the Complainant’s behalf.

34. It is not factually disputed that the Respondent did not use any of the contract remedies to terminate the contract on the Complainants behalf. The Respondent states that this is because the Complainant had effectively taken matters into her own hands and did not approach him to deal with matters in this way. As the situation deteriorated rapidly and resulted in his own appointment being terminated then the Respondent states that there was no detriment to the Complainant.

35. The Committee considers that the Respondent did not carry out his role as contract administrator adequately in this regard. The Committee considers that in order to protect the Complainant it was incumbent upon the Respondent to point out the remedies provided within the contract and to give the Complainant the appropriate advice to deal with the situation she was in. The Committee does not consider that just because the Complainant didn’t ask about the contract and appeared to have taken matters into her own hands there was no necessity to provide information about the contract remedies. In addition, the Committee noted that in her letter of 4 January 2018 the Complainant specifically requested that the Respondent serve a default notice on the contractor, and he failed to do so.

Particular 4 – The Respondent did not ensure construction was carried out in accordance with Building Regulations

36. The Committee has considered the two aspects of this particular separately. Firstly, in relation to the construction of the slab and secondly in relation to the drainage as both aspects were the subject of the contravention notice by the Building Inspector.
Construction of the slab

37. The Committee noted that there appeared to be a factual dispute about the presence of the Respondent during pouring of the slab. In his letter to ARB dated 8 July 2021 the Respondent stated, “The Complainant is correct to state that JHAI did provide the contractor with critical advice on the preparation for the casting of the raft. The fact is the Contractor failed to act on this advice and the concrete was cast whilst I was incapacitated in hospital.”

38. A further letter to ARB dated 25 October 2021 the Respondent gave further detail about his incapacitation and stated, “I had to go to A&E again on Monday 6 November 2017 and I was incapacitated for several days….I notified the Complainant of my incapacitation and that due to my condition I was unable to attend the concrete pour…..JHAI specifically told the Contractor not to cast the concrete on 8 November.”

39. In his witness statement dated 13 June 2022 the Respondent stated, “I was not available during the pour of the concrete.”

40. In an email sent to the Complainant dated 17 November 2017 the Respondent stated, “All of the slab was meshed. Although I could hardly walk that day I was there for a while when it was being concreted and saw the mesh in situ.”

41. In his oral evidence the Respondent agreed that he was present on the day of the concrete pour although he could not recall how long he attended for, or at what stage the concrete pour had reached. The Respondent agreed that he was aware of the stipulations of JHAI before the pour and he had advised the contractor to ensure the work was done. The Respondent could not

42. The Committee considered that the contemporaneous email which confirmed the Respondent had been present and the later recollection of the Respondent that he was present at the concrete pour was more likely. The Committee therefore concluded that the Respondent had attended at the site because he was aware that the concrete pour was taking place and he wanted to inspect the works. The Committee noted that the Respondent was aware that JHAI had requested work to the steel cages and drainage runs before the concrete was cast and that JHAI would require evidence that this had been done. The Committee noted that the Respondent had taken no steps whilst at the site during the concrete pour, despite this knowledge, to satisfy himself that the works were in compliance with the Building Inspector’s requirements or followed the structural engineer’s design. Further, if he was aware that JHAI had specifically told the contractor not to pour the concrete he took no steps to halt the concrete pour or raise the issue with either the contractor, the Building Inspector, or the Complainant.

43. The Committee heard evidence from the Complainant that subsequent investigations when the slab was broken up revealed that the mesh was not in situ as indicated by the Respondent in his email. The Committee considered that it would have been obvious to the Respondent that a significant amount of the mesh remained on site as the large mesh sheets can clearly be seen in the site photographs taken at the time. In the Respondent’s email to the Complainant dated 27 October 2017 he stated, “Kevin has confirmed that the £2000 quoted was for the mesh only, all of which he will be using in your floor.” The Committee considered that given the cost of the steel mesh and the fact that precise quantities were ordered, pursuant to the structural engineer’s schedule, it was likely that all of the steel mesh was not used and this ought to have been evident to the Respondent at the time of the concrete pour.

44. In these circumstances the Committee was satisfied that the Respondent had not taken steps to ensure that the construction was carried out in accordance with the building regulations.

Layout of the drainage

45. The Committee heard a significant amount of evidence with regard to the drainage. In summary, the Building Inspector issued a contravention notice on the 18 January 2018 in the following terms:

“The provision of foul drainage running through the cast in-situ slab is unacceptable due to the acute angle of a junction serving a WC which discharges into an inspection chamber against the intended flow of the drain. This does not meet the required standard as set out in Requirement H1 “Drainage”.

46. The drainage system that was drawn by the Respondent did not have the drainage in the position as laid out on site by the contractor.

47. The Committee noted the evidence of the Inquirer on this matter. In her report and her oral evidence to the Committee at the hearing in June 2022 she was clear that the drainage was not compliant with Building Regulations because it flowed away from the main drainage run, (effectively backwards) before joining the main drain and a bend in the pipework was necessary.

48. Following discussions as a Committee the Architect member produced a sketch which suggested that the problems with the drain as set out by the Building Inspector were potentially mitigated by the prefabricated bend within the inspection chamber and the relatively gentle curve of the pipework leading into it. This sketch was circulated to the parties and the Inquirer was asked to comment. In an addendum report dated 29 June 2022 the Inquirer stated, “The drainage pipe takes what seems to be an unnecessary route to join the main drain run…. When the drains connect at an acute angle like this against the direction of flow it increases the risk of the drain blocking. This drainage connection is one of the reasons why the project was issued with a Building Regulations Contravention Notice.”

49. In answer to questions from Mr Falconer’s counsel the Inquirer agreed that the wording of the contravention notice was factually incorrect and that the water did not discharge into the drain against the flow.

50. Upon re-examination and questions from the Committee the Inquirer resiled from that position and confirmed her earlier opinion that the drain did not comply with Building Regulations in her opinion. In answer to the Committee’s questions the Inquirer again re-stated her opinion that it was obvious upon looking at the positioning of the pipes that the drain had been laid away from the direction of flow and was at an acute angle in breach of Building Regulations.

51. The Committee did not consider that the position was as straightforward as suggested by the Inquirer given the conflicting evidence that had been given. The Inquirer confirmed that she did not disagree with the sketch of the inspection chamber but was unable to satisfactorily explain, in the Committee’s view, why this did not mitigate the issue with the drain. In addition, the Inquirer gave conflicting evidence about the accuracy of the contravention notice.

52. The Committee noted that the Building Inspector issued a site report on 21 November 2017 which stated as follows,

“A cross wall has been built in line with an inspection chamber… The location of the inspection chamber is currently unacceptable due to the practicalities of using it.”

53. The Building Inspector did not at that stage suggest that the drainage ran against the intended flow because of the acute angle and was not compliant for this reason. It seems to the Committee that if, as suggested by the Inquirer, that it was obvious that the drain was not compliant, then moving the wall would still not resolve the problem. It also seems unlikely that an experienced Building Inspector would not have spotted this issue either at the site inspection on the 8 November 2017 or at the inspection on the 21 November 2017 given that he had an opportunity to see the drainage runs in situ.

54. From the evidence before the Committee there is no suggestion that the specific reason for the non-compliant drain as set out in the contravention notice was ever raised by the Building Inspector with the Respondent at the site meetings or in correspondence. In her statement the Complainant states that her dissatisfaction with the drainage run was that it ran under the main flooring and that the Building Inspector was unhappy that it “impinged on the slab”. This would further support the conclusion that the acute angle discharge was never raised as a problem until the contravention notice was issued.

55. In these circumstances the Committee considers that whilst it is factually correct that this aspect of the construction was not compliant with Building Regulations, the Respondent’s responsibility for this is more properly addressed in the Committee’s determination on UPC.

Particular 5 – The Respondent did not observe Statutory obligations in respect of:

a) Construction (Design and Management) Regulations 2015;

56. The Committee noted that the project was not notified to the Health and Safety Executive, as was required under the CDM regulations. Further, the Respondent did not carry out the required risk assessments. The Respondent has accepted that he failed to undertake these required steps. The Committee considered that this factual particular was proved.

b) Control of Asbestos at work Regulations 2012

57. The Committee noted the Complainant’s evidence that there was asbestos in the roof tiles of the existing garage. The Complainant’s evidence was that she was never advised to have the tiles tested and no advice was given by the Respondent about this aspect.

58. The Respondent has been unable to offer any explanation about the steps taken to identify asbestos on site and does not suggest that he took any steps to advise the Complainant about this aspect. In the circumstances the Committee considered that this factual particular was proved.

c) The Party Wall Act

59. The Committee noted the evidence of the Complainant that she did not receive any advice from the Respondent regarding the party wall and was not advised to set up a Party Wall Agreement.

60. The Respondent states that he did speak with the Complainant regarding the neighbours and an informal arrangement was made.

61. The Committee accepts that there is likely to have been a discussion between the Complainant and Respondent about the neighbours and whether they were aware of the works. However, the Committee considers that the Respondent did not take steps to explain to the Complainant the implications should that cordial arrangement break down or give her any advice about a Party Wall Agreement. The Committee considered that the informal discussion was not sufficient for the Respondent to discharge his obligations and he should have taken steps to fully explain the implications to the Complainant and confirm that advice in writing in the event of later problems.

Relevant Standards

62. The Committee considered the following standards were engaged in this case.

• Standards 4.4 and 4.6 of the 2010 Code
• Standards 2.1, 4.1 and 6.1 of the 2017 Code

Standard 6 of the Code states:
“You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards 6.1 You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.”

63. By reason of the facts found proved, the Committee finds that the Respondent acted in breach of Standards 2, 4, and 6 of the Code.

Unacceptable Professional Conduct

64. Having found the above particulars proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC. UPC is defined as conduct which falls short of the standard required of a registered person.

65. In reaching its findings, the Committee has carefully considered all the evidence presented to it, all submissions made and has accepted the advice from the Legally Qualified Chair. The Committee recognises that not every shortcoming on the part of an architect, nor failure to comply with the provisions of the Code, will necessarily result in a finding of UPC. However, a failure to follow the guidance of the Code, whether in one’s professional or private life, is a factor that will be taken into account should it be necessary to examine the conduct or competence of an architect.

66. The Committee has considered the authority of Spencer v General Osteopathic Council [2012] 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”.

67. It is the Committee’s finding that the facts found proved, and corresponding breaches of the Code, both individually and collectively, are serious and adversely impact both on the reputation of the Architect and the profession generally.

68. In relation to Particular 1 the Committee considered that the failure to provide the client with adequate terms and conditions was a serious failing because it left the Complainant without essential information relating to the project. Further, when things went wrong the Complainant was not in possession of information relating to the Respondent’s insurance, regulation by ARB
or the Respondent’s complaint processes. The Code requires this information to be provided to all clients in writing at the outset of their project so that they can make informed decisions. A failure to provide that information can properly be considered to be UPC.

69. In relation to Particular 2 the Committee considered that this was a serious falling short of the standards required. The Respondent did not ensure that crucial setting out information was provided to the contractor. This meant that the slab was constructed too short, and this had an impact on the cross wall being placed over the inspection chamber.

70. The Committee did not accept that the Complainant had agreed to the shorter slab or that this was necessary because of the location of the grey water tank. These were all matters that could and should have been addressed by the Respondent in his initial setting out drawings. Although the Committee accepted that it may have been reasonable to undertake the setting out once demolition was complete there is no evidence that the Respondent did this either. Should there have been a change in the dimensions at this stage then the Committee considered that this should have been reflected in a drawing which should have been issued to the Complainant and the contractor. Whilst the other matters such as window and door schedules could have been inserted at a later date, the lack of construction stage design information and drawings directly contributed to the problems with the build and can be considered to be UPC. The Respondent did not carry out this work with due care and skill and did not provide drawings and documents to the contractor which were essential to ensure accurate and adequate construction.

71. As the architect and contract administrator, the Committee considered that the Respondent failed to ensure that the contract adequately protected the Complainant. He did not insert clauses regarding liquidated damages for late completion and did not set a completion date. He left the Complainant exposed should the contractor fail to complete the building works. The Respondent’s failure to issue a pay less notice or use contractual remedies to terminate the contract similarly left the Complainant at risk should the builder seek to issue proceedings under the contract for recovery of outstanding sums. The Committee considered that the Respondent took a cavalier attitude to his obligations under the contract and left the client to manage the situation instead of relying on the provisions of the contract. The Committee considered that the
respondent did not carry out this work with care or skill and this was a serious falling short of his professional obligations that amounted to UPC.

72. The Committee considered that the Respondent had failed to ensure that the raft foundation was adequately constructed in circumstances where he was aware that there were issues with the workmanship of the builder. The Building Inspector had made it clear that there were matters to be resolved before the concrete was poured and the Respondent was aware of those requirements. The Respondent attended the concrete pour and failed to undertake any inquiry about whether those matters had been addressed and failed to ask about the surplus mesh which was evident on site. Further, the Respondent gave contradictory explanations to the Complainant and ARB about whether he had been present on site at the relevant time. In these circumstances the Committee considered that the Respondent’s actions fell below the standard expected of a registered person and amounted to UPC.

73. With regard to the drainage issue the Committee considered that it was less clear that the Respondent should have been aware there was likely to be an issue with the drainage. For the reasons set out in its factual determination the Committee considered that there was not enough evidence that it was obvious on a visual inspection that the drainage was non-compliant. The Committee considered that this issue was a technical matter that was raised later. In these circumstances the Committee did not consider that the Respondent’s failure to identify the issue at the concrete pour amounted to UPC.

74. The Committee considered that the failure to observe statutory duties was UPC. Although ultimately these matters did not have a significant impact on the Complainant there was potential for her to have been placed at a disadvantage. These are legal requirements and the Respondent’s conduct placed her in breach of her legal obligations. It is not possible to tell at the outset of a project what may happen, and the purpose of the requirements is to protect the client’s position should something go wrong. The fact that there was no significant detriment to the Complainant is fortunate, but the Respondent’s conduct placed her at unnecessary risk. The failure to deal with the asbestos correctly could have had very serious health implications for her and the contractor. The Committee considered that this was a falling short that could properly be considered UPC.

75. The Committee therefore finds that the Respondent’s conduct does amount to UPC.

76. At this stage in the proceedings there was no further evidence adduced.

77. The Presenter set out ARB’s submissions in relation to sanction and drew the Committee’s attention to ARB’s Sanctions Guidance. The Presenter submitted that the Committee should have regard to the relevant aggravating and mitigating factors when assessing the level of sanction. The Presenter confirmed that the Respondent had no previous regulatory history with ARB in a lengthy career. He submitted that ARB made no formal sanction bid but set out that the Committee should consider the conduct in the round taking into account any aggravating and mitigating factors.

78. Mr Collett addressed the Committee in mitigation. Mr Collett submitted that the Respondent had accepted the findings of the Committee and expressed remorse and regret. Mr Collett submitted that this was an isolated matter which occurred on one project within the context of a lengthy and unblemished career. Mr Collett submitted that the Respondent had undergone a period of reflection and had learned from this process and had now put in place strategies to prevent a repetition. Mr Collett set out the Respondent’s financial position which had been impacted by the pandemic. Mr Collett submitted that it would have a significant impact on the Respondent and his clients if he were not permitted to conclude three projects before he retired. Mr Collett explained that the Respondent’s health position was uncertain and the ongoing and lengthy disciplinary process had had a significant impact upon him. Mr Collett submitted that there were no aggravating features and extensive mitigation which would make a reprimand a proportionate sanction.

79. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board and to declare and uphold proper standards of conduct, behaviour and competence. The Committee has 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
sanction is not to be punitive although it may have a punitive effect. It has taken into account the Respondent’s interests, the sanctions guidance and the need to act proportionately. It has taken into account any aggravating and mitigating factors in this case. The Committee has exercised its own independent judgement.

80. The Committee has identified the following aggravating factors:

• The Respondent’s failings had a significant impact on his client, resulting in the slab having to be broken up and resulted in additional costs and delays to the project. This caused the Complainant significant frustration and upset.

81. The Committee has identified the following mitigating factors:

• The Respondent has no adverse regulatory history in a very lengthy career;
• The failings occurred on one project;
• There is evidence that the Respondent was struggling with an injury at the time of the events;
• The Respondent has engaged in the ARB process and taken on board the learning;
• The Respondent has taken some corrective steps to prevent further issues arising;
• The Respondent has expressed remorse and some insight.

82. 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 has considered them in ascending order of severity.

83. The Committee first considered whether to impose a reprimand. The Committee considered that the Respondent did demonstrate some of the factors that would make this sanction appropriate including previous good disciplinary history, genuine expression of regret and some insight into failings. However, the Committee considered that this information was limited and not supported by any evidence that the Respondent had put into practice any of the learning from his failings on this project. The Committee considered that this behaviour would be unlikely to be repeated if the correct steps were taken by the Respondent to manage projects and to outline
clearly and formally all of the requirements of his role. However, given the seriousness of the UPC found proved, and the effect on the Complainant and the reputation of the profession the Committee considered the Respondent’s failings too serious for such a reprimand to be either appropriate or proportionate.

84. The Committee then considered whether to impose a penalty order. It noted that this sanction is appropriate where the offence is too serious to warrant a reprimand. It considered that this was the appropriate and proportionate sanction given that not all of the factors for a reprimand were present as identified above. The Committee noted the Respondent’s long career and considered that he had taken on board the lessons learned from these projects and the ARB process as a whole. The Committee considered that this process had been difficult for the Respondent, but he had engaged constructively and stated that he had taken steps to address the failings identified.

85. The Committee considered that a penalty order, together with its findings in relation to UPC, would be sufficient to mark the conduct as unacceptable and uphold the reputation of the profession.

86. Having determined that a penalty order was the appropriate and proportionate sanction the Committee considered a suspension order. The Committee did consider carefully whether the public interest required a suspension. The Committee did not consider that the Respondent lacked sufficient insight to be able to practise appropriately or that he was a risk to the public. The Committee considered that a penalty order was sufficient to protect the public interest and it considered that preventing the Respondent from practising as an architect for a period was unduly punitive.

87. The Committee therefore imposes a penalty order in the sum of £1,500. The Committee considers this to be an appropriate amount to reflect the seriousness of the Respondent’s failings. This amount should be paid within 28 days.

88. That concludes this determination.