Mr Gregor Holstead
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
IN THE MATTER OF
GREGOR HOLSTEAD (057934C)
24 and 25 September 2015
7 and 8 December 2015
Holiday Inn Edinburgh
132 Corstorphine Road
Mr Julian Weinberg (Chair)
Mr Stephen Neale (PCC Lay Member)
Mr Roger Wilson (PCC Architect Member)
Mr Stephen Battersby (Clerk to the PCC)
Mr Holstead attended the hearing.
Ms Catriona Watt of Anderson Strathern appeared on behalf of the Board.
1. In this case, the Board is represented by Ms Catriona Watt. Mr Holstead has attended this hearing but is not legally represented. Mr Holstead faces a charge of unacceptable professional conduct (“UPC”) and/or serious professional incompetence (“SPI”) based on three allegations in that he:
1.1 Failed to ensure that works were completed in accordance with the contract drawings, and agreed deviations from the contract without the client’s prior approval;
1.2 Failed to ensure the building works were carried out to a satisfactory standard;
1.3 Failed to identify works which were not compliant with Building Control
and that by doing so, the Respondent acted in breach of Standards 6.3 and 2.1 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”);
2. This case arises out of a complaint made by Dr D (“the Complainant”) in respect of the professional services carried out by the Respondent who, at the material time, was trading under the name, hLp Architects.
3. The background to this case is that in October 2012, the Complainant instructed the respondent as Architect and Contract Administrator in respect of proposed works to demolish part of her property and then to rebuild a two storey extension based on the Respondent’s contract drawings. William Baillie and Sons were appointed as builders.
4. It is alleged that despite the fact that the Respondent inspected the building works weekly, he failed to identify substantial and major deviations from the contract drawings, which the Complainant alleges, were carried out without her consent. The most serious of these was the fact that the ceiling height of the upper storey of the new extension was lower than that of the rest of the property.
5. The Complainant instructed Mr McKeen of DA Gilmour Ltd (DAG) in 2014 to prepare a snagging list. He identified that there was a disparity in height between the ceiling of the new extension and the original building of 160mm. The width of the extension had also been reduced by 4.4% to comply with building regulations. The snagging list identified over 100 issues, although it is accepted that some of these were of a minor nature.
6. It is further alleged that because of the nature of outstanding issues, City of Edinburgh Council was unable to issue a Certificate of Completion under the Building Warrant.
7. Finally, as a further example of poor workmanship that the Respondent is alleged to have failed to identify, it is alleged that the boiler, when tested by British Gas, was found to be producing an unacceptably high level of carbon monoxide.
8. The Complainant alleges that the remedial works are estimated to cost £45,000.
9. Allegations 1 and 2 are denied. Allegation 3 is admitted. It is further denied that if any factual allegations are found proved, such failings amount to UPC or SPI.
10. In reaching its decisions, the Committee has carefully considered the live evidence of the Complainant, Mr McKeen, the Respondent and Mr Baillie, together with the documentary evidence presented to it in the Report of the Board’s Solicitor, the 64 pages of documents exhibited to it, and a 101 page bundle of documents supplied by the respondent after the case went part heard in September 2015.
11. The Committee has accepted the legal advice given by the Clerk. 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/SPI is a matter for the Committee’s independent judgment to which no burden of proof applies.
12. The Committee makes the following finding of facts:
13. The committee finds the facts proved for the following reasons:
14. The Board relies on the evidence of the Complainant, together with that of Mr McKeen of DAG who produced a copy of his report into alleged defects in the building work and deviations from the contractual drawings. It is agreed evidence between the parties that the Respondent acted as the contract administrator.
15. The Complainant said that, when she was able to access the upper floor of the extension, she immediately noticed that the ceiling height was lower than that of the original building. She was adamant that she never agreed to this. She says that she raised her concerns with the respondent in an email sent by her husband dated 4 December 2013. At a meeting held the day after with the Respondent and Mr Baillie, she again voiced her concerns that the ceiling height had been reduced to an unacceptable level that did not meet her needs. However, having spoken with the respondent and Mr Baillie, it was apparent that the costs of remedying the defect would be unacceptably high and that, in effect, at the time, she had no choice but to accept the reduced ceiling height. However, she remained adamant that she had no prior knowledge that the ceiling height would be lower than as indicated by the plans until the property was physically opened up to allow her access to the room in question. Despite extensive cross examination from the respondent as to whether she agreed to this variation from what was shown in the contract drawings, her evidence remained consistent and, in the Committee’s view, credible for the following reasons:
15.1 Her responses were consistent with the email highlighting the difference in ceiling heights on the 4thDecember in which she stated that, “We haven’t approached Bill about this yet but….We just noticed that the upstairs ceiling height on the new build is lower than that of the existing build by about half a foot. Our expectation was that everything would be of a uniform height”; and
15.2 Her subsequent actions were also consistent with dissatisfaction with the reduced height. She had instructed solicitors, contacted DAG to prepare a report, sought remedies through arbitration, and had invested approximately £20,000 of her own money in remedying the defect. The Committee considers that these steps are consistent with the Complainant not having given approval for a reduced ceiling height. Such behaviour is inconsistent with her being genuinely satisfied with the work undertaken.
16. The evidence of the Respondent, that the Complainant agreed to the reduced ceiling height, was less credible. In questioning the Complainant in September, his case was put on the basis that she agreed to the ceiling height being reduced at the meeting on 5 December 29013. The Complainant stated that she had not been able to make an informed choice, having been advised of the cost of remedial work. The Respondent accepted that the ceiling height of the extension was lower than that of the rest of the upper floor of the building but that he had not been made aware of the issue prior to the Complainant’s email the day before. However, he put his case on the basis that the complainant, having initially been angry, accepted this situation at the meeting of the 5 December, when the cost of remediating the defect was discussed. The Complainant had stated that, in practice, she had no choice other than to accept what had happened and that she had not freely given consent to the variation.
17. However, after the hearing went part-heard for lack of time in September, and prior to the hearing resuming, the Respondent provided a statement of Mr Baillie dated 24 April 2015. In it, he states that the Complainant had been made aware of, and had agreed to, the ceiling height being reduced, prior to the meeting on the 5 December. He stated that it was the only way to complete the works quickly, without the Complainant and her family having to leave the property while the works were ongoing. He confirmed this position in his live evidence.
18. The Committee, in reaching the conclusion that the evidence of the respondent and Mr Baillie was less credible than that of the Complainant, bore the following in mind:
18.1 It was at odds with the basis of the Respondent’s position put forward in September;
18.2 It was at odds with the Respondent’s response to the Complainant’s solicitor on 14 April 2014 in which he stated, “Where there have been deviations from the Contract drawings these have been discussed with the client during our regular weekly site meetings and approved by the client”;
18.3 That this evidence carried less weight because, given the lateness at which Mr Baillie’s evidence was produced, the basis of that evidence could not now be put to the complainant for her to comment upon. As such, Ms Watt and the Committee had not had the opportunity to question the Complainant about what was now being asserted;
18.4 Mr Baillie accepted that, even though he says he had spoken to the Complainant about what was being suggested, he accepted that the Complainant may not have fully understood what was being proposed. He accepted that the Complainant may not have realised what was being said to her;
18.5 The fact that the Complainant had given the builders a small Christmas bonus and a bottle of whiskey, was not sufficiently persuasive such that the Committee could conclude on the balance of probabilities, that she was accepting a reduced ceiling height, leaving the room unsuitable for her family needs.
19. In the circumstances, the Committee is satisfied to the required standard that the Complainant had not given prior consent to the deviation from the contract in respect of the ceiling height.
20. Mr McKeen had identified a number of defects in the build quality. His list included 25 items where construction had not been as per the drawings or specification He concluded that the work carried out was of a “very poor standard”. Whilst the Board accepts that some of the issues were minor snagging matters, some were not, most notably, the height of the upper floor ceiling in the extension which he considered to be “a major deviation from the drawings and is not easily remediable. This would involve a significant amount of reconstruction to bring the extension ceiling to the correct level that it should be”. This conclusion is consistent with the evidence of both the Respondent and Mr Baillie who both indicated that the cost of rectifying the reduced ceiling height would be high.
21. It is a moot point as to whether all those variations were discussed with the Complainant and whether she gave prior approval for all of them. However, the seriousness of the allegations against the Respondent emanate from the changes to the ceiling height. To the extent that allegation 1 relates to that issue, the Committee finds that the Respondent failed to ensure that the works were completed in accordance with the contract drawings and that he agreed deviations from the contract without the client’s prior approval.
22. As such, the committee finds allegation 1 proved.
23. 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.
6.2 You should carry out your professional work without undue delay and, so far is reasonably practicable, in accordance with any time-scale and cost limits agreed with your client.
6.3 You are expected to keep your client informed of the progress of work undertaken on their behalf and of any issue which may significantly affect its quality or cost.”
24. By reason of the facts found proved, the committee finds that the respondent acted in breach of Standards 6.1 and 6.3 of the Code.
25. The Committee finds the facts proved for the following reasons:
26. The Committee has had sight of DAG’s snagging list which identifies over 100 items which Mr McKeen stated were completed to an unsatisfactory standard. The Respondent maintained that Practical Completion had been achieved and that the building works would meet the requirements of City of Edinburgh Building Control Department. However, the Committee has had sight of the Building Control Department’s letter dated 23 April 2014, rejecting the Completion Certificate. That letter states that:
“In accordance with….Regulations that attached list indicates the reasons for possible rejection, however, provided you are in agreement it has been decided to permit a period of 60 days….in which to resolve these issues…..
A further inspection of the premises will be required….
POINTS REFERRED TO IN THE ABOVE LETTER
5 An amendment of warrant should be submitted for all deviations from the approved drawings/documents. This should include structural alterations to the roof structure, for which amended engineers (sic) drawings and certification will be required.
27. Whilst it is accepted by the Board that many items on DAG’s snagging list were minor in nature, the work required to rectify the issues with the lowered ceiling height was substantial.
28. It was the Respondent’s position that the work was carried out to a satisfactory standard. In response to correspondence received from solicitors instructed by the Complainant, the Respondent stated:
“We are the Contract Administrators….We confirm that in our opinion, the Contract works have been carried out generally in accordance with the Contract documents, to a good general building standard, sufficient to meet the requirements of City of Edinburgh Building Control Department – which would be the standard that we would expect these works to achieve. There is no greater onus on quality or finishes or building works either implied or implicit within the Building Contract.”
29. The Respondent accepts that he was contract administrator and that he was responsible for ensuring that works were carried out to a satisfactory standard. He further accepted that he was not aware of the reduced ceiling height until 4 December 2013 despite attending the site weekly. The Committee accepts that the Building Standards Surveyor in his letter of 23 April 2014 grants the respondent a 60 day period to rectify any shortcomings, which includes submitting an amended warrant. It may well be that, having done so, a Completion Certificate may have been forthcoming. However, to the extent that the reduced ceiling height was not fit for the Complainant’s family needs (for example, the Complainant could not fit her children’s bunk beds in the room), the Committee finds that the Respondent failed to ensure the building works were carried out to a satisfactory standard.
30. It is further alleged that when the Complainant’s boiler was inspected by a British Gas engineer on 15 May 2014, he identified that the boiler was producing an excessive amount of carbon dioxide which had to be reduced to a safe level. The Committee has had sight of the engineer’s checklist confirming the position. The builder had removed the original carbon monoxide detector but had not replaced it as no provision for doing so had been included in the contract. However, the Committee recognises that the Respondent is not a suitably qualified gas engineer and this work would not come within his remit as the architect. The Committee does not therefore find this allegation proved to the extent that it relates to defects with the boiler.
31. However, as otherwise set out above, the Committee finds the facts alleged, proved.
32. Standard 2 of the Code states:
“2.1 You are expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work you should ensure that they are competent and adequately supervised.”
33. In the circumstances, the committee finds that by failing to act as alleged, the Respondent has acted in breach of standards 2 and 6 of the Code.
34. The Committee finds the facts proved by reason of the Respondent’s admission.
35. Furthermore, in its letter of 23 April 2014, The City of Edinburgh Council rejected the Completion Certificate for the reasons set out in its letter. It therefore follows that the Respondent failed to act as alleged.
36. In the circumstances, the Committee finds that by failing to act as alleged, the Respondent has acted in breach of standards 2 and 6 of the Code.
37. Having found the allegations proved, the Committee went on to consider whether the Respondent’s conduct amounts to UPC and/or SPI. UPC is defined as conduct which falls short of the standard required of a registered person. SPI is defined as a serious failure to meet the required standard of skill expected of a member of the profession undertaking a similar kind of work at the same time.
38. 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 clerk. 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. Similarly, so far as SPI is concerned, it can relate to something that an architect has or has not done, but an unexpected or unsatisfactory outcome is not in itself proof that an architect has been seriously incompetent.
39. The Committee has considered the authority of 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”.
40. In considering where incompetence becomes serious incompetence, the committee has borne in mind that the following features make it more likely that incompetence may be viewed as serious:
· when the consequences are, or could have been, particularly serious;
· where the architect’s standard of competence falls significantly below that expected;
· where a number of failings, while not serious individually, together demonstrate a pattern of incompetence;
· where a pattern of incompetence suggests an architect may not act competently in the future.
41. It is the Committee’s finding that the facts found proved in respect of allegations 1 and 2, 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. As the architect and contract administrator, the respondent failed to ensure that the building works were completed satisfactorily in circumstances where:
· the client had not given prior approval for deviations from the contract, and
· the complainant initially had to accept the changes imposed on her due to the high cost of rectification to comply with the contract drawings
represents conduct falling substantially below the standard expected of a registered Architect. Such failings can quite properly be categorised as unacceptable professional conduct. The Committee does not therefore make a finding of SPI.
42. The Committee therefore finds that in respect of allegations 1 and 2, the Respondent’s conduct does amount to unacceptable professional conduct.
43. However, notwithstanding the admission made to factual allegation 3, the Committee makes no finding of either UPC or SPI in respect of that allegation. The Committee notes that the Council’s letter of 23 April 2014 does not state that a Completion Certificate will not be forthcoming, but that a period of 60 days is being granted for amended documentation to be provided. It is not uncommon practice for a completion certificate to be sought in circumstances where works have been completed that do not comply with the Building Warrant on the basis that if remedial action is required, this can be undertaken. In the circumstances, the committee does not consider it appropriate to make a finding of either UPC or SPI as the failing found proved is not sufficiently serious such that it amounts to UPC or SPI.
44. Mr Holstead then addressed the Committee in mitigation. 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 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 a punitive 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.
45. The Committee has identified the following mitigating factors:
45.1 that he has no adverse regulatory history in his 25 year career;
45.2 he has fully engaged in the regulatory process;
45.3 he made an admission at the start of this hearing in respect of allegation 3;
45.4 this was an isolated incident;
45.5.he has not gained, either financially or otherwise from his failings;
45.6he says he has taken some steps to remediate his failings by changing his working practices, for example by keeping better records of on-site meetings;
45.7he has provided positive testimonials attesting to his character and professionalism.
46. The Committee has identified the following aggravating factors:
46.1 the Respondent has demonstrated limited insight into his professional relationship with his client, nor has he expressed any remorse for his actions, save for the fact that he was not given the opportunity to complete the project. He has remained adamant that the Complainant’s suggestions are “ridiculous”, he considers her to be dishonest and “totally set on nothing less than the total destruction of two good men…..She is willing to lie, distort, manipulate and rip apart her house to prove her point”;
46.2 his failings have put the Complainant to substantial cost and inconvenience.
47. The Committee notes that the matters found proved are serious to the extent that Mr Holstead’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.
48. The Committee first considered whether to impose a reprimand. The fact that the Respondent has demonstrated limited insight into his failings leads the Committee to conclude that there remains a real risk of repetition of his failings, posing an ongoing risk to members of the public and the reputation of the profession, notwithstanding his assurance that his failings will not be repeated. The Committee therefore similarly considered the Respondent’s failings too serious for such a sanction to be either appropriate or proportionate.
49. The Committee then considered whether to impose a penalty order but discounted this an appropriate sanction for the same reasons.
50. The Committee then considered whether to impose a suspension order. Notwithstanding the ongoing risk of repetition identified, the committee does not consider his 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 such a sanction is required to protect the public and the reputation of the profession. The Committee gave consideration to an erasure order given the respondent’s persistent and ongoing lack of insight, but decided against such a sanction given the suitability of a suspension order as such a sanction, the Committee considered, would be unduly punitive.
51. The Committee therefore imposes a suspension order for 6 months which the Committee considers to be an appropriate period to reflect the seriousness of the Respondent’s failings.
52. That concludes this determination.