Mr Euan Millar
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Euan Millar (066359J)
held on 12 September 2017
Novotel Glasgow Centre Hotel
181 Pitt Street
Ms Emma Boothroyd (Chair)
Mr Roger Wilson (PCC Architect Member)
Mr Stephen Neale (PCC Lay Member)
Mr Stephen Battersby (Clerk to the PCC)
Ms Melinka Berridge of Kingsley Napley appeared on behalf of the ARB.
Mr Millar did not attend and was not represented in his absence.
1. In this matter, the ARB is represented by Miss Berridge. Mr Euan Millar is not present and is not represented.
2. Mr Millar faces an allegation of unacceptable professional conduct based on six allegations of fact as set out in the charges.
3. As a preliminary issue, we are asked to consider the question of service of documents and whether to proceed in the Respondent’s absence. We have heard from Miss Berridge that the relevant Notice of Hearing and supporting documentation was served on the Respondent on 18 April 2017 at his registered address in accordance with Rules 6 (a) of the Professional Conduct Committee Rules. We have accepted the advice of our Clerk that the requirements of the Rules have been complied with. We are satisfied that the Respondent has been properly served with the required notice of this hearing. We have therefore gone on to consider whether the case should proceed in his absence.
4. We have listened carefully to the representations of Miss Berridge and have accepted the advice of our Clerk. The Committee’s attention has been brought to the Acknowledgement of Notice of Hearing form dated 29 April 2017 received from Mr Millar which has been signed by him. In it, he confirms that he does not intend to appear at this hearing, and he has set out his response to the allegations. He also admits that his conduct amounts to either unacceptable professional conduct or serious professional incompetence. We have carefully considered all the correspondence presented to us in this matter and in particular, note the contents of Mr Miller’s emails 26 May 2017 (where he sets out his reasons for not attending) and 12 August 2017 where he confirms that he will not be attending the hearing and explains that he needs to remain “focused on present work commitments”.
5. The Committee has borne in mind that the notice was sent to the Respondent in April and the Committee considers that this had afforded the Respondent enough time to make alternative arrangements to cover his workload. Mr Millar has not sought an adjournment of these proceedings or given any other reason why the case should not proceed today. He was advised that the Committee could proceed in his absence and he has confirmed in his correspondence that he will accept the outcome of the hearing. We have exercised the utmost care and caution in reaching our decision, and have carefully considered the overall fairness of the proceedings. We have taken into account the factors to be considered in the decisions in Jones and Tate. In considering this application, we have balanced the potential impact on the Respondent’s livelihood and reputation in hearing the matter today in his absence, as against the public interest in proceeding with the hearing in a timely manner. Having done so, we are satisfied that the Respondent has been given an adequate opportunity to make arrangements to appear before the Committee to argue his case in person and that he has chosen to voluntarily absent himself. The Committee saw no evidence that led it to conclude that by adjourning the matter, the Respondent would attend the hearing on any future date. The Committee also noted that the Respondent has provided full representations and other evidence in support of his case in writing. Taking all these factors into account, we have concluded that it is fair and in the interests of justice to hear the case in his absence.
6. No other preliminary applications have been made.
7. The allegations in this case arise from a complaint made by two Complainants, Mr and Mrs Ruck. The Respondent was instructed in or around November 2008 to undertake the drawing of plans and to make an application for planning permission and then oversee the build of a new property at Poolewe. It is alleged that:
(1) He knowingly permitted the contractor to install a septic tank at the property without obtaining approval from Building Control;
(2) He failed to notify his client of the decision to use a septic tank rather than a sewage treatment plant;
(3) He failed to adequately advise his client about obtaining a NHBC building warranty;
(4) He failed to provide a competent and/or appropriate design for the roof and/or walls of the property when using oak shingles;
(5) He informed the contractor to omit lead flashings which contributed to the leaks and further costs
(6) He over certified the works, despite being aware of ongoing defects in the property.
8. It is alleged that these failures were contrary to Standards 2 and/or 6 of the 2010 Code of Conduct.
9. In reaching its decisions, the Committee has carefully considered all the documentary evidence presented to it in the Report of the ARB’s Solicitor together with submissions made. The bundle includes statements from the Complainants together with the Respondent’s detailed written responses to the Board dated 20 June 2017. The Committee has also carefully considered the submissions made by the Respondent in writing.
10. We note from the response documents received from the Respondent that he admits allegations 1, 3 and 6 and he admits that the allegations amount to unacceptable professional conduct and/or serious professional incompetence. In respect of allegation 2 he has inserted the word “adequately” before notify and has indicated that he admits this charge.
11. At the start of this hearing it was raised with Miss Berridge whether the ARB would consent to the insertion of the word “adequately” in relation to charge 2. She confirmed on behalf of the ARB that she had no objection to this and considered that the facts would still support this charge. The Committee considered that the amendment could be made without injustice to the Respondent and in effect it was his request to amend the charge to properly reflect the situation as he considered it to be. Accordingly, the Committee decided to amend charge 2 to insert the word “adequately”.
12. We have had regard to both the burden on the ARB to prove its case and the standard of proof, namely proof on the balance of probabilities. Our findings are as follows:
13. The Committee finds the allegation proved and indeed it is admitted by the Respondent. It is clear from the planning permission that a treatment plant was approved. Initially there was a septic tank proposed but Mr and Mrs Ruck paid for the design of a treatment plant and it was this design that was submitted and approved by Building Control. The Respondent confirms that there were discussions with the contractor about installing a septic tank and it was agreed that the contractor would approach Building Control to approve it. The issue was regularly recorded on the minutes of site meetings. The Committee is satisfied that the Respondent knew about the installation of the septic tank and knew that this had not been approved by Building Control. The Respondent acknowledges that this was an error by him.
14. In respect of this error, the Respondent has failed to perform his work with due skill, care and diligence and did not competently direct the contractor by allowing him to install the septic tank.
15. The Committee finds the allegation proved. The Respondent accepts that he did not adequately inform his clients about this issue. His case is that he assumed they were aware of it from its inclusion in the site minutes. It seems that there was never a conversation about it and Mrs Ruck thought the issue related to drainage more generally and not the septic tank in particular. The fact that that wasn’t explicitly mentioned to Mr and Mrs Ruck is a matter of some concern to the Committee as the Respondent should have made it clear that the septic tank had not been approved and the implications of this for the project. The Committee did not consider that the inclusion of the item in the site minutes was enough to adequately bring the issue to the attention of Mr and Mrs Ruck. The site minute in relation to this issue is abbreviated to “drainage”.
16. Mr and Mrs Ruck paid for a design that wasn’t followed and then a septic tank that ultimately was not approved and had to be removed. There were significant cost implications as a result of the Respondent’s failure to adequately inform Mr and Mrs Ruck of the decision to install a septic tank. The Committee considers that the Respondent acted in breach of standard 6 and acted without skill and care in not bringing this issue to the attention of Mr and Mrs Ruck and that his conduct amounts to unacceptable professional conduct.
17. The Committee finds this allegation proved. Mr Millar accepts that he had no experience of NHBC warranties and agrees that he was dismissive of Mr and Mrs Ruck’s enquiry. He accepts that the advice he gave was inappropriate and although he has explained the context of his relationship with Mr and Mrs Ruck and the timing and nature of the enquiry, nevertheless the Committee considers that the Respondent did not act with the required level of skill and care in suggesting to Mr and Mrs Ruck that the warranty would be a “waste of money”. The Respondent accepts that he should not have said this and the Committee considers that if he was not familiar with the NHBC warranty he should have made this clear, and directed his clients to take further advice.
18. In the light of the insolvency of the contractor and the subsequent defects with the building the lack of a NHBC guarantee meant that Mr and Mrs Ruck were left in the position of having to pay for remedial works. The Committee is therefore satisfied that the Respondent has breached Standard 6 of the Code and this amounts to unacceptable professional conduct.
19. The Committee finds the allegation proved in its entirety. In making its decision the Committee has had regard to the expert reports prepared for the court proceedings together with the Respondent’s submissions. Mr Gibb, instructed on behalf of Mr and Mrs Ruck, concludes that in his opinion “…the Architect provided a design that was bound to fail, and to be the cause of water ingress into the building fabric…”
20. The Committee considered the expert report prepared by William J Marshall and Partners LLP on behalf of the Respondent’s insurers which concludes, “Given the consequences of choosing a low pitched roof for shingles, in my view it would require Icosis to have taken care in the design and inspection of the building to see that the secondary line of defence against water ingress represented by the roof and wall membranes was reasonably complete.”
21. The Committee has also taken into account the report dated 4 December 2012 prepared by Allied Souter & Jaffrey which was an intrusive survey of the condition of the roof. It concludes, “The design and material specification for this monopitch roof is inappropriate for a building on this exposed site and the standard of workmanship is well below what we would expect from a Contractor of reasonable competence. This roof is effectively not fit for purpose.”
22. Whilst there may be some debate about at what pitch it is acceptable to use oak shingles, it is clear to the Committee that this is only one aspect of the design. Given the risks of using such a design in an exposed location with high winds and driving rain, which is accepted by all parties including the Respondent, the Committee considered that it was incumbent on the Respondent to ensure that his design was competent and appropriate and followed by the contractor. The Respondent was instructed to oversee the build and he accepts that he should have given greater guidance to the contractor.
23. The Committee took account of the reports of all the experts which had much in common together with the Respondent’s comment in his letter of 20 June 2017 that he.. “would not specify shingles for such a low roof pitch again”. Overall the Committee was satisfied that the design for the roof and walls using oak shingles was not competent or appropriate for this house in this location.
24. The Committee considers that the defects in the design and whether the shingles were appropriate should have been evident to the Respondent just as they were to Mr Gibb when conducting a visual inspection of the work. The Committee considers that the Respondent did not carry out his work with due care, skill and diligence and failed to appropriately inspect and direct the contractor’s work in breach of Standards 2 and 6 of the Code.
25. The Committee finds the allegation proved. The Respondent accepts he should have been clearer in his instructions but maintains that the contractor was aware that the flashings on the roof should remain and this is confirmed in the contract drawings. He also says that flashings were found on exposure works which further demonstrates that some flashings were installed.
26. The Committee considers that the Respondent was reckless in his approach to this issue. His instruction was “omit lead flashing”. It was not specific about which flashings were to be omitted and at best their subsequent inclusion in the contract drawings was confusing. The contractor appears to have responded with a revised quote and included the words, “no lead required” although the Committee has not had sight of this document.
27. Mr and Mrs Ruck confirm that some flashings were installed around the roof light in order to try to stop the water ingress. The report of the inspection of the roof in 2012 states, “We understand that previous exposure works had revealed that there were no flashings at eaves level, which was causing high levels of water ingress internally.”
28. Mr Gibb in his report at page 54 states, “By removing the lead flashings at the window heads and at the eaves and ridge, the Architect reduced the weatherproofing at the vulnerable eaves and ridge junctions, and removed the required protection from the window head….It is worthy of note that all the windows set into shingles directly below ridge or eaves have leaked through their frames as has the rooflight.”
29. William Marshall’s report suggests that some flashing had been installed and the absence is a question of fact.
30. The Committee considers that the instruction of the Respondent to omit lead flashing led to the contractor not installing flashings that later had to be fitted by Mr and Mrs Ruck when the roof began leaking. The Committee prefers the evidence of Mrs Ruck and the evidence contained in the expert reports that there was an absence of lead flashings which caused water ingress.
31. The Committee considers that the Respondent when inspecting the works should have been able to see that flashings had been omitted in key areas. The Committee considers that it was a consequence of the instructions given under the costs saving exercise which led to this omission by the contractor and this contributed to the leaks and further costs.
32. The Committee considers that the failure to be clear in his instructions was reckless and led to a situation where lead flashings were not installed in key vulnerable areas which reduced the weatherproofing to an extent that there were leaks and repairs required. The Committee considers that this failure is serious and contributed to significant costs for Mr and Mrs Ruck. The Committee considers that the Respondent did not carry out his work with due care, skill and diligence and failed to appropriately supervise the contractor in breach of Standards 2 and 6 of the Code. The Committee considers that this amounts to unacceptable professional conduct.
33. The Committee finds the allegation proved. This is admitted by the Respondent in particular in relation to the septic tank issue. The Respondent has said that he should not have relied on the assurances of the contractor to undertake work post payment. Looking at the evidence the Committee was satisfied that the Respondent had over certified the works not only in relation to the septic tank but there were clearly other issues with materials not delivered and ongoing defects with the construction.
34. This left Mr and Mrs Ruck in a situation where there was no money left to cover remedial works and no financial incentive for the contractor to complete the work. The Committee considers that the Respondent acted in breach of Standard 2 and Standard 6 in over certifying the works without carrying out a proper inspection and relying on the contractor. The Committee considers that this amounts to unacceptable professional conduct.
35. In the light of our other findings of breaches of the Code as set out above, the Committee finds that the Respondent is guilty of unacceptable professional conduct.
Mitigation and Sanction
36. Ms Berridge then fairly drew the Committee’s attention to the mitigation on behalf of the Respondent. The Committee 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 ARB and to declare and uphold proper standards of conduct and behaviour. 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 Clerk. It has borne in mind that the purpose of imposing a sanction is not to be punitive although it may have that effect. It has taken into account the Respondent’s interests, the indicative 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.
37. Having taken into account the Respondents’ submissions, the Committee has identified the following mitigating factors:
(1) The Respondent has no adverse regulatory history;
(2) The Respondent has engaged in the regulatory process;
(3) The Respondent has expressed regret and remorse to a degree for some of the issues that affected the Complainants;
(4) The Respondent continued to work with the Complainants to try to resolve the issues and to attempt to complete the build;
(5) The Respondent has provided a number of positive testimonials attesting to his work, character and professionalism;
(6) The Respondent has demonstrated some insight into his failings, recognising that he needed to change his working practices. He has explained that he has taken steps to remedy his failings, for example, by tightening the practice procedures and in particular that he would not repeat his error with this design on a low pitched roof.
38. Taking into account all the circumstances, the Committee considers the risk of repetition of his unacceptable professional conduct to be moderate.
39. The Committee has identified the following aggravating factors:
(1) his failings caused substantial inconvenience including stress, anxiety delay together with significant financial loss to the Complainants;
(2) his failings caused damage to the reputation of the profession as trust in architects is likely to be diminished given the Respondent’s conduct;
(3) his failings were reckless, multiple, significant and serious.
40. Given the aggravating circumstances set out above and those matters identified in the Committee’s findings on UPC, the Committee considers that the level of UPC found proved is at the higher end of the scale.
41. The matters found proved are serious, wide ranging and had a substantial impact on the clients. The Respondent’s conduct diminishes both his reputation, and that of the profession generally. The Committee therefore concluded that the Respondent’s failings are sufficiently serious for it to require the imposition of a sanction and has considered them in ascending order of severity.
42. The Committee first considered whether to impose a reprimand. Taking all the circumstances into account, the Committee considered that such a sanction was inappropriate given the seriousness of his failings and the impact of the UPC on the client and on the reputation of the profession.
43. The Committee then considered whether to impose a penalty order but discounted this as an inappropriate sanction for the same reasons. The Committee noted the advice of its Clerk in this area particularly in relation to the amount of any financial penalty but it considered that a financial penalty was not the appropriate or proportionate sanction given the seriousness of the Respondent’s failings.
44. The Committee then considered whether to impose a suspension order. The Committee does not consider the Respondent’s failings fundamentally incompatible with remaining a registered Architect, and that the Respondent’s conduct is capable of being remedied. However, as previously stated, these were serious failings, such that the Committee considers that this sanction is required to protect the public and the reputation of the profession and to uphold professional standards.
45. In considering the length of the suspension order the Committee had regard to the Respondent’s mitigation and in particular his attempts to assist the Complainants when the contractor had ceased to trade. Although the Committee considered the UPC at the higher end of the scale, and a suspension order was the appropriate sanction, the Committee had regard to the Respondent’s mitigation and did not consider that a suspension order for the maximum two years was proportionate. The Committee therefore imposes a suspension order for a period of twelve months.
46. The Committee gave consideration to an erasure order, but decided against such a sanction given the suitability of a suspension order. An erasure order, the Committee considered, would be unduly punitive.
47. That concludes this determination.