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Mr Alan James Sheerin

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Alan James Sheerin 041855B

Held as a video conference

 On 12 and 13 May 2020

———-

Present

Paul Housego (Chair)

Euan Geddes (PCC Architect Member)

Martin Pike (PCC Lay Member)

———–

In this case, the ARB is represented by Catriona Watt of Anderson Strathern.
Mr Sheerin has not attended this hearing.

The Professional Conduct Committee “PCC” found Mr Sheerin guilty of serious professional incompetence (“SPI”) in that he:

1. Produced a design for the construction of a dwelling house which had incorrect measurements for the size of plot and was to the wrong scale.

and that by doing so, he acted in breach of Standards 2.1 and 6.1 of the Architects Code: Standards of Conduct and Practice 2017 (“the Code”).

The sanction imposed is a Penalty Order of £1,500 .

Preliminary matters

1. Mr Sheerin (“the Respondent”) did not attend the hearing. More than the required 42 days’ notice of the hearing had been given, as required by the Rules. The Respondent’s solicitor wrote to the ARB on 21 April 2020 specifically stating that the Respondent had no objection to the Committee proceeding to hear the case in his absence. The Committee therefore decided to hear the case in the absence of the Respondent.

2. The hearing was a virtual hearing. The Committee’s Rules refer to a hearing, without defining that word. The ARB had set up appropriate technology for the hearing to be conducted virtually. The Committee decided that a virtual hearing was appropriate for this case, where there is no dispute of fact and where the Respondent had submitted full representations and documents in support of those representations, through solicitors.

3. Hearings of the Committee are public hearings. The Committee considered the virtual hearing to be a public hearing, because notice that it was to be a virtual hearing was publicised on the ARB website, with the opportunity for any member of the public to contact a named person at the ARB for an access code to join the virtual hearing as a spectator. No one had done so.

Allegation

4. The Respondent appears before the Professional Conduct Committee (“the Committee”) of the Architects Registration Board (“the ARB”) to respond to an allegation of serious professional incompetence (“SPI”).

5. The ARB alleges that the Respondent produced a design for the construction of a dwelling house which had incorrect measurements for the size of plot and was to the wrong scale.

6. The relevant provisions of the Code are:-

“Standard 2
Competence
1 You are expected to be competent to carry out the professional work you undertake to do…

Standard 6
You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
1 You are expected to carry out your work … with skill and care….”

7. The Respondent had admitted the factual basis of the allegation, and that it amounts to SPI. He submitted detailed representations and witness statements, with supporting documentation.

8. The Committee finds the facts proved by that admission, and on perusal of the papers provided by the ARB.

9. While the Respondent admits SPI, that is a matter for the Committee to determine. There is no burden or standard of proof. It is a judgment to be made by the Committee. Serious professional incompetence must be more than ordinary negligence. To amount to SPI a single error needs to be of greater consequence than is required for each of a series of errors. For errors to amount to SPI there must, singly or collectively, be a significant falling short of the standard to be expected of a competent architect.

Evidence

10. The Committee perused the report of the Board’s solicitor with accompanying documents running to some 120 pages. The Board provided witness statements from the Complainant and from a director of a company which dealt with the building warrant submission for the revised design shown in the second planning consent.

11. The Respondent made and provided two witness statements, with supporting documents, and his solicitor provided two detailed letters with submissions.

Findings of fact

12. The Respondent was instructed by the previous owner of the plot in connection with that previous owner’s proposed sale of the plot, in order that it might be sold with planning consent. The plot is in Belhaven Conservation Area, and accordingly planning applications are subject to close scrutiny. The plot has a substantial number of trees which are regarded as of high amenity value by the planning authority. Accordingly, much of the plot cannot be built upon as the root areas around the trunks of such trees are protected and are to be disturbed as little as possible (dependent on the individual tree).

13. The Respondent physically measured the plot and thereafter prepared drawings for a house on it. Planning consent for that house was obtained. The Complainant liked the house the Respondent designed, and what could be done for the garden and parking areas of the plot. He and his wife bought the plot intending to build there the house the Respondent had designed.

14. After the Complainant and his wife had bought the plot their builder came round to look at the site. Having measured the site the builder said that it was not possible to build the house within the space available on the plot. He was correct.

15. The reason the house would not fit the plot was that the plan of the site had been incorrectly scaled, and so the plot was shown on the plans as significantly larger than it is. Put the other way, the house shown on the drawings was much smaller than it would be if actually built: it was too large for the plot if correctly dimensioned.

16. The result of this is that the Complainant had to revise the design and submit a new planning application. The Respondent assisted with that new planning application. The Complainant and his wife now have planning permission for an L shaped house, which is smaller than that intended when they bought the plot, with fewer rooms than the T shaped house the Respondent had originally designed. The house will take up much more of the plot than shown on the Respondent’s original plan (because the plot is smaller than he showed it). This means that the garden is also smaller, and more of it is under the tree canopies, so the plans for the garden are not achievable. The smaller area available also means that the parking provision is more limited than envisaged.

17. For these reasons the Complainant and his wife cannot have the house they thought they would get on the plot they bought in reliance on the Respondent’s plans. They wanted to have a retirement home with room for their children and grandchildren, and they cannot have the garden they expected. They point out that the plot may be worth less than they paid for it as they paid a price for a plot suitable for a house bigger than can be built. They have also been inconvenienced because when they bought the plot they sold their house, and lived in a flat they own in Edinburgh which they had intended to rent out. Although the Respondent obtained planning permission for a revised and smaller house they have had additional expense as well as delay and disappointment at the fact that the house they bought the plot to build cannot be built.

18. The Respondent does not say how the error of scaling occurred. The ARB does not have to prove how it occurred.

ARB Submissions

19. The ARB submits that this is serious enough to be SPI. It is not really one error but the result of a pattern of working. While it is a simple mistake, it is a fundamental one, and one which has severe consequences. It is not something that should ever happen. It is more than a negligent slip, and the ramifications of the error demonstrate the seriousness of the error.

The Respondent’s Submissions

20. The Respondent accepts that this was SPI. He said that he made an error in transposing the plan, moving the scale from 1:200 to 1:250. Having made that error he continued on the mistaken basis shown on the plan without ever having cause to revisit the assumption he had wrongly made that the plan was accurate. Although his witness statement provided some explanation, he did not clearly explain how the error had been made, and why it was not noticed. Most of his submissions went to mitigation.

Discussion and Conclusion

21. The Committee finds this to be SPI. Anyone can make a mistake, and an error in scaling is not of itself SPI. However, in this case the plot had severe constraints. The plot’s seller obtained planning consent for a large house in order to sell it. The Complainant wanted as large a house as possible on the plot. The plot is in a Conservation Area, and it was not a large plot. There were over 20 trees around its boundaries, constraining the area within the plot which could be developed. The revised planning consent gives a smaller house than that first designed by the Respondent, and that smaller house is as large as is possible within the constraints of this relatively small plot. It follows that care was essential to make sure that the house designed, and for which planning consent was obtained, was feasible.

22. The person who later prepared the building warrant submission commissioned a topographical survey. This was not hindsight, but a prudent way of establishing the exact parameters of the site. Whatever the Respondent undertook in the way of site planning, it was plainly inadequate. The Respondent personally undertook a measured site survey, but his submissions did not take the Committee through the process of measured survey to preparation of plans, either in written form, or by submission of drawings. He provided only a hand drawn sketch with dimensions, not adequate of itself to prepare planning drawings. The result of whatever process the Respondent followed produced the flawed and inaccurate planning application plan he used: it was seriously incompetent not to follow a process which would lead to an accurate outcome, particularly when accuracy was critical in the context of this proposed dwelling.

23. Further, the Committee noted that when the builder went on site to carry out measurements, with the plans, he saw that the house designed by the Respondent could not be built upon the plot.

24. The Respondent knew that someone would buy the plot in order to build the house which he had designed for them. There was a duty upon him to ensure that the house he had designed could be built upon the plot, as any purchaser of the plot would rely on that design and consent.

25. The Committee finds the errors in the design are sufficiently serious to be SPI and finds the allegation proved.

Mitigation

26. The Respondent provided two witness statements and six testimonials about his work and career and his solicitors wrote in detail about the circumstances. There has been no previous disciplinary finding against the Respondent.

27. The Respondent pointed out that he has been an architect for 46 years. He said that his error was to mark the legend on his drawing, prepared at 1:250, as having a scale of 1:200. He said that he then transposed this to his drawing for the dwelling, which was used for the planning application. He accepted that this was SPI.

28. The Respondent said that he had accepted the error immediately when it was pointed out to him, accepted responsibility for it and sought to take remedial steps, including paying fees to others.

29. He said that he accepted that he had made a simple yet fundamental error, and that one mistake had caused the substantial problem which had arisen. He said that he did not underestimate the effects on the Complainant and his wife of the consequences of that mistake.

30. The Respondent submitted that it was a single isolated error in a career of 46 years, from which he had now retired. Had he not done he would most certainly check what he did so that it would not have recurred. He had planned to retire earlier, but circumstances had meant that he had continued to practise until recently. He now intends not to undertake any further work.

31. The testimonials provided were from clients of 32 years, 25 years, 31 years and 14 years, personal, corporate, local government and civic organisations, and were all highly complimentary.

32. The Respondent’s solicitor stressed his insight and remorse, and the efforts he had made to assist once the error came to light. There was no risk of repetition as the Respondent had retired. While the Complainant had set out substantial financial loss this was not substantiated in any way. They suggested that this was a case where the Committee could find that it was appropriate to impose no sanction, or if not so, then a reprimand. This was because of his insight, remorse, the taking of corrective steps, his long unblemished career and the fact of his retirement. They submitted that a penalty order would be disproportionate because there was no financial gain to the Respondent, and his cessation of practice was relevant to means. The Sanctions Guidance meant that it would be inappropriate to impose a penalty order for this isolated error in respect of which the Respondent showed insight and remorse. It followed that the criteria for the more serious sanctions were not met, and in particular there was no evidence of entrenched integrity issues.

ARB Submissions

33. Ms Watt submitted that the Respondent, while now remorseful, showed little insight into how the error occurred. This had serious consequences for the Complainant. It was too serious for there to be no sanction. The Respondent had asked the client to pay the disbursements for remedying defects, which lacked insight. While the Respondent had obtained a new permission, the error was in truth irremediable. It was conceded that the likelihood of repetition was small and that there was a good disciplinary history. The offence was too serious to warrant a reprimand. It was accepted that there was remorse, if not full insight. It was not alleged that Mr Shearer had benefited financially from the offence, other than his fee charged to the previous owner. The Respondent said that he had now retired, but there was no evidence of his means. The Committee might feel that the conditions for suspension were met.

Sanction

34. The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence. Sanctions also help ensure that the profession better understands the importance of professional standards. In this case there is no issue with protection of the public as the Respondent has retired from practice and the Committee accepts that it is unlikely that he will resume practice.

35. The 2020 Sanctions Guidance provides as follows, with the Committee’s conclusions on the factors set out in the guidance, which is what it says, guidance.

“Impose no sanction
The PCC may conclude, having had regard to all the circumstances that the level of seriousness of the architect’s conduct or competence is so low that it would be unfair or disproportionate to impose a sanction. In these circumstances the Committee may decide not to impose a sanction.”

36. By reason of the serious and irremediable effect on the Complainant the Committee concluded that it would be inappropriate to impose no sanction.

“Reprimands
Where the PCC decides that it is appropriate to impose a sanction in relation to a guilty finding, a reprimand is the least severe sanction that can be applied. It may be used in relation to offences which fall at the lower end of the scale of seriousness, and where it would be appropriate to mark the conduct or competence of an architect as being unacceptable.
This sanction may be considered where the following factors are present (this list is not exhaustive):
• Evidence that the conduct or competence has not seriously affected clients/the public
• Insight into failings
• Genuine expression of regret
• Corrective steps taken
• Likelihood of future misconduct of a similar nature or any misconduct is very low
• Previous good disciplinary history”

37. The Committee noted and took full account of the Respondent’s good disciplinary history, and his expressions of regret, which the ARB accepted were genuine. While the Respondent had not clearly expressed or explained exactly how he had made and then failed to notice the error, the Committee concluded that he had insight into the effect of the mistake and that it would not be one he would (if in practice) repeat. The Committee noted that he had taken corrective steps, but it was unfortunate that he had sought to ask the Complainant to pay the fees needed to implement those steps. The most important factor in this set of criteria is the serious effect on the Complainant and his wife. This is not only serious but is irremediable. For this reason, the Committee decided that a reprimand would be an insufficient sanction.

“Penalty orders
Penalty orders are fines of up to level 4 on the standard scale of fines for summary offences, currently set at £2,500 and this is payable to HM Treasury. Only one penalty order can be issued per charge, and under the Act only two charges can be brought (unacceptable professional conduct and/or serious professional incompetence).
This sanction may be considered where the following factors are present (this list is not exhaustive):
• The offence is too serious to warrant a reprimand
• Limited or lack of remorse
• The architect has benefitted financially from the offence
• The financial resources of the individual architect and/or his practice”

38. The Respondent did not benefit from the offence, and he is remorseful. He stated that he was of limited means but provided no evidence of that. It does not follow that because the Respondent is retired that his means are straightened. His remorse is (at least now) not wanting. However the offence is (by reason of its substantial and irremediable effect on the Complainant and his wife) too serious for a reprimand, and the Committee decided that a penalty order is the appropriate sanction.

39. Before coming to its final conclusion, the Committee considered whether a suspension order was disproportionate, and had no doubt that it would be disproportionate to suspend the Respondent from the Register. It is too serious a sanction for this offence.

40. The Committee’s power to impose a penalty order is limited to £2,500. The Committee concluded that the appropriate penalty order was of £1,500. This was not the most serious matter for which a penalty order would be made, and it was an error of omission not commission. It was however a matter that caused serious and irremediable harm to the Complainant and his wife, and a penalty order towards the upper end of the range was necessary to mark this.

41. The Committee orders the Respondent to pay a penalty of £1,500, within 28 days of today.

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