Mr Stefan Peter Horowskyj
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Mr Stefan Peter Horowskyj 049886F
Held on 2-5 December 2019
International Dispute Resolution Centre
70 Fleet Street
Paul Housego (Chair)
David Kann (PCC Architect Member)
Jules Griffiths (PCC Lay Member)
In this case, the Board is represented by Mr Mark Millins from Kingsley Napley
Mr Stefan Peter Horowskyj has attended this hearing and is legally represented by Mr Leon Smith of DAC Beachcroft LLP.
The PCC found Mr Stefan Peter Horowskyj guilty of unacceptable professional conduct (“UPC”) in that he:
- Failed to provide adequate terms of engagement contrary to standard 4.4 of the Architects Code;
and that by doing so, he acted in breach of Standard 4.4 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”).
The sanction imposed is a reprimand.
- Mr Horowskyj (“the Respondent”) appears before the Professional Conduct Committee (“the Committee”) of the Architects Registration Board (“the ARB”) to respond to an allegation of unacceptable professional conduct (“UPC”) following a complaint made by Mr A (“the Complainant”). The ARB alleges that some or all of the following amounts to UPC:
1. The Respondent did not provide adequate terms of engagement contrary to Standard 4.4 of the Architects Code;
2. The Respondent did not carry out an adequate measuring survey in respect of any and/or all of the following areas:
a. he did not survey the cellar during the original survey and/or take appropriate steps if access was not available;
b. he did not survey the second floor during the original survey and/or take appropriate steps if access was not available;
c. he did not provide levels in the original survey;
d. he did not indicate the size of the beams on the original survey;
e. the survey was carried out in a piecemeal fashion.
3. The Respondent did not adequately deal with the design and revised scheme in respect of any and/or all of the following areas:
a. levels and access;
b. internal height/headroom;
c. sloping first floor;
- In connection with allegation 1 the Respondent is alleged to have breached Standard 4.4 of the Architects Code: Standards of Conduct and Practice 2010 (“the Code”). In respect of allegations 2 and 3 the ARB relies on Standards 2.1 and 6.1. There is now a 2017 version of the Code. Nothing turns on the difference between the two Codes.
- The Respondent admits that he did not provide terms of engagement to the Complainant, and denies all the other particulars asserted.
The relevant provisions of the Code state:-
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. Standard 4 Competent management of your businessYou are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:
- the contracting parties;
- the scope of the work:
- the fee or method of calculating it;
- who will be responsible for what;
- any constraints or limitations on the responsibilities of the parties
- the provisions for suspension or termination of the agreement;
- a statement that you have adequate and appropriate insurance cover as specified by the Board;
- your complaints-handling procedure (see Standard 10), including details of any special arrangements for resolving disputes (e.g. arbitration)
Any agreed variations to the written agreement should be recorded in writing.
You are expected to ensure that your client agreements record that you are registered with the Architects Registration Board and that you are subject to this Code; and that the client can refer a complaint to the Board if your conduct or competence appears to fall short of the standards in the Code.
You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.
- In 2011 the Respondent was instructed by the Complainant concerning an historic pub, which was bought by the Complainant before auction as a speculative investment. The Complainant wanted to convert it to business premises, ideally for an optician’s practice, or as a coffee shop, or for other retail use, and to let it. With a partner he ran an optician’s practice in the same town, and the lease of that premises was coming to an end. This relocation did not prove possible. In 2018 the Complainant lodged a complaint against the Respondent arising from the events of 2011 – 2013, including the survey drawings, planning and listed building applications, and the ARB allege that they were substandard to the level required to be UPC.
Burden and standard of proof
- The ARB is required to prove the allegations to the civil standard; that it is more likely than not that any event occurred. That is a single unwavering standard of proof, though the more unlikely an allegation the more cogent the evidence required to prove it. There is no requirement for the Respondent to prove anything. The Committee has in mind throughout its deliberations that the right to practice a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 applies. In particular the Respondent has the right to a fair trial and to respect for his private and family life under Articles 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as incorporated within UK law by that Act. The question of whether or not any facts found proved amount to UPC is a matter for the Committee’s judgment, and there is no burden of proof. A finding of unacceptable professional conduct requires the Committee to judge that conduct to be a serious falling short of proper professional standards.
- Mr Smith applied to adduce more documents. This was very late in the day, but Mr Millin accepted that the documents had some relevance, albeit, he said, peripheral. He said that he was not disadvantaged or prejudiced by their late production. In these circumstances the Committee agreed to the introduction of those papers.
- The Respondent says that he did all that was asked of him, and in good time. His instructions had been piecemeal, and he should not properly be criticised as he was: he or his colleague had prepared drawings of what they could inspect and clearly marked what they could not. It was the Complainant who was driving matters, and the Respondent said that he really could not be blamed for the difficulty in converting and letting the building: his remit had never been to undertake that as a project. He accepted that the lack of terms of engagement contributed to what he said was the Complainant’s misunderstanding of what he expected of him. He was being unfairly blamed in these circumstances.
- The Committee perused the report of the Board’s solicitor with accompanying documents running to several hundred pages. The Board called oral evidence from the Complainant and from the ARB’s Inquirer, whose report was in the ARB’s bundle.
- The Respondent gave evidence to the Committee. He provided a defence statement and other documents casting light on the Complainant’s approach to the former pub.
- The Committee found the evidence of the Complainant difficult to follow. He saw the building as a way to provide an income in retirement, and he was prepared to take the risk of buying the building without a survey or much other professional help. He drove the project throughout, having employed a commercial agent, and did not want the franchisor (or any other potential tenant) to deal direct with the Respondent. His intention was to develop and let the building, but the response from the franchisor and the letting agent would dictate to whom he could let it. He did not focus on the issues relevant to the matters before the Committee. The Inquirer prepared his report without the advantage of hearing from the Complainant as the Committee did. The Inquirer was prepared to reevaluate his opinions on the basis of the evidence provided and did so. The progress of the project was somewhat disjointed, because the Complainant had no specific type of conversion in mind, wishing to keep all options open. The Respondent gave evidence in a straightforward credible and professional way.
- The solicitors for the ARB and the Respondent both made lengthy submissions, which the Committee considered carefully.
Findings of fact
- The Respondent admits not providing terms and conditions of engagement and that fact is found proved on that admission.
- On 3 September 2011 the Complainant bought a public house “the building” before auction. It is a Grade II listed building. The Complainant walked round the building with the Respondent before buying it. The Respondent had previously visited the building with the conservation officer in July 2011. No complaint is made about that walk through and the advice then offered. The Complainant’s acquisition was speculative, with a view to redevelopment and letting to provide an income in retirement, which he was intending should be in the near future. He arranged for the pub tenant to leave, and so the building was empty when, or soon after, he acquired it.
- The Complainant had an optical practice in the same town. It was a franchise. He and a partner each owned half the shares in the limited company which traded there. The franchisor leased the premises from which they traded. The lease was coming to an end. The practice had grown, and there was also a wish to extend services into audiology. The Complainant hoped that he might achieve two ends: to relocate the practice and to let the building to the franchisor. He bought it without knowing whether it could be converted to an optical practice, or if it could be so converted, whether the franchisor would take a lease of it. He bought it anyway, to convert and to let to a commercial tenant.
- The Respondent has a colleague, who is an architectural technologist. In mid-August 2011, that colleague made a measured survey of the ground floor and first floor. He could not get access to a cellar, which was locked, nor to the second floor, which was full of furniture and other things: it was not in use and things had been stored there. He later returned to survey the second floor, and it is included on the plans drawn. The cellar was also surveyed, and its outline shown on the ground floor plan. The Complainant never intended to use the cellar for commercial use, and ultimately it was filled with hard core. It was relevant to practical issues such as whether (and how) the ground floor could be lowered, and for structural support of things to be built above it.
- Plans were drawn, as existing. Photographs of the exterior were provided with vertical dimensions marked on them. No cross sections were provided initially. The plans did not mark ceiling heights on them, but changes in levels were marked, and all the data required to provide any drawing or cross section (save for the cellar) had been captured by the Respondent’s colleague. The ARB accepts that “a tremendous amount” of data had been captured, and the ARB did not contest the Respondent’s assertion that from the data recorded by his colleague any plan or cross section of the building could be drawn, and was drawn when required.
- The Complainant tried to induce the franchisor to take the building, by asserting that national chain coffee shops were interested in it. He was seeking such interest, but there was at that time none, and his aim in saying so was to try to get the franchisor to sign up. He instructed estate agents to seek out a tenant, including coffee shops. He was going to convert and let the building, one way or another.
- The Complainant bought the building on 3 September 2011, prior to auction, and without a structural survey. The measured survey that was carried out by the Respondent’s colleague before that, on 1 August 2011, was necessarily limited as the building was then in operation as a public house. The first drawings were provided to the Complainant on 6 September 2011.
- After the pub had ceased trading the Complainant had the premises stripped. No timeframe is available to show when this had occurred. The Respondent’s colleague returned to the building and took measured drawings of the second floor, now accessible, and marked the position of the cellar, also now available, on the ground floor drawing.
- It was the Complainant who dealt with the franchisor, and not the Respondent. The Complainant wished it so. On 17 September 2011 the Complainant forwarded an email from the franchisor with a list of their requirements: a survey, a structural survey and an asbestos survey, and advice from planners about a change to retail use, a rear extension and an increase in size to front windows, and confirmation of level access. There was no requirement as to ceiling height.
- On 11 October 2011 the Respondent and his colleague met the conservation officer on site, with the Complainant. She had several points which she regarded as important. They were the historic beams in the front rooms of the ground floor, the windows to the front and the staircase to the first floor. This was towards the front of the building, and so impacted adversely on the Zone A retail area. The discussion was about use as an optician and as a coffee shop. On 12 October 2011 the Complainant requested the Respondent to concentrate on plans for a coffee shop. On 13 October 2011 the measurements were completed, and on 18 October 2011 revised proposals for the optician’s scheme were forwarded to the Complainant. As an alternative the Complainant continued to push his agent to seek a commercial tenant such as a coffee shop.
- The franchisor has a property department and an architect, based in Jersey. The franchisor was to attend a meeting originally planned for 26 October 2011 but this was delayed until 22 November 2011 when two representatives of the franchisor attended, a property person and a business development person. The Complainant, the Respondent and his colleague were also present.
- In the meantime the Complainant wanted to proceed also with alternative plans for a coffee shop.
- On 28 November 2011 planning and listed building consent applications were sent to the local authority. They were granted on 3 and 6 February 2012. They did not involve removal of the staircase, which was not sought, because the conservation officer said she would oppose the application if it did.
- The Respondent’s colleague then went to the existing franchise operated by the Complainant to measure the display racks. With the signage above them they would not fit the ground floor of the building. This could partly have been solved by remedying the sloping first floor. The building had been altered over time, with adverse effect on the level of the first floor. Levelling it to its original position would gain some height below, in areas where it had dropped. There was never a proposal to raise it. The ground floor could be lowered, but that would require increased ramped access down from the street.
- By 28 June 2012 the franchisor had indicated that it was looking at a rent of £19,500 a year. The Complainant had been working on the basis that it would be about double that. The rentals achievable in towns such as this, and in locations such as this, had dropped substantially since the 2008 crash.
- Following further discussions the Respondent returned to the conservation officer, to put an economic argument for the removal of the staircase (to enable the Complainant to seek a higher rent because this would increase the Zone A area). This succeeded, with the conservation officer agreeing to the removal of the staircase with the condition that the staircase was moved to another location in the building. The windows could also be enlarged, as they had been reduced to their present size, so that the enlargement was properly to be seen as reinstatement as built. The revised listed building application was submitted on 7 August 2012, and approved on 5 November 2012, and it permitted the relocation of the staircase.
- Matters continued and on 29 April 2013 the Complainant asked for internal levels to be lowered, which was agreed by the conservation officer on 13 September 2013.
- The conservation officer has a superior. He left that post, and the conservation officer who had been dealing with the Respondent was appointed to succeed him. There was therefore no possibility of seeking to persuade the new conservation officer, as her decisions would need the approval of her superior, who was the original conservation officer.
- The Respondent knew that the Complainant was talking to other architects, and his involvement came to an end at this point. Subsequently a revised scheme was prepared by those other architects. It was a scheme that the franchisor found acceptable. It was not built, because even with the staircase removed the rental which the franchisor would pay was insufficient to make the project economically viable.
- Ultimately the building was converted to a restaurant, which commenced trading in 2018. The staircase was left in situ.
- The length of time before the complaint was made is because it was made subsequent to litigation brought by the Complainant against the Respondent’s company, seeking a substantial claim. That matter never came to trial, and the Complainant lodged the complaint with ARB subsequent to a mediation meeting, the outcome of which was (rightly) not disclosed to the Committee.
- Allegation one is proved on admission. The Respondent’s initial task was to make a measured survey of the building prior to its purchase. It would have been simple to prepare terms and conditions so stating, and to add to them as further instructions were received. This is a breach of Standard 4.4, which is absolutely clear. The Committee has always considered a failure to provide terms and conditions to a client to amount to UPC. This was eight years ago, when perhaps the requirement was not as well-known as it is now, but the Code came into effect in 2010, and this was well into 2011. Professionals should know their professional obligations towards clients. The Committee decides that this allegation is, as charged, UPC.
- Allegation two alleges that the Respondent did not carry out an adequate measured survey, and then gives particular reasons why it is said to have been inadequate, and specifies areas of the building said not to be have been adequately measured or surveyed.
- In the bundle of papers provided to the Committee are the measurements taken by the Respondent’s colleague. These are shown on graph paper, clearly annotated with all dimensions. Photographs of the exterior were taken and extensively annotated with all possible dimensions. Levels were taken throughout the exterior and interior, and one particular datum level, F, is a level threshold, so that exterior and interior levels are linked. The measurements clearly show heights. The ARB accepts that “a tremendous amount” of data was collected on the first visit and subsequently. This charge cannot be found proved, as all necessary measurements were taken.
- The allegation then moves to 5 separate asserted failures. No application was made to amend the allegation to refer to inadequate plans, as opposed to inadequate measurement. The Committee does not consider that this could have assisted the ARB, but for completeness deals with the asserted failings.
- The cellar was not available to the Respondent’s colleague on his first visit to the building (which was before the Complainant bought it and when it was operating as a public house). The cellar was locked. There can be no criticism for not surveying a part of the property to which access could not be obtained. The fact that the cellar was there was noted on the original drawing. The allegation then asserts that there was a failure to take appropriate steps. On a subsequent visit the cellar was surveyed, and its position clearly shown by dotted lines on the ground floor plan. This was entirely appropriate. The Complainant never had any wish to do anything with the cellar. While perhaps there could have been another drawing showing the cellar’s dimensions, that would only have been to replicate the delineation on the ground floor plan, and would not have been useful as to the Complainant had no wish to do anything with that cellar.
- The second part of allegation two refers to the second floor. The Respondent’s colleague could not gain access to it when he first went. There can be no criticism for not surveying something to which access could not be obtained. The Complainant was interested in converting the ground floor, and the first. The second floor was not of any significant commercial use to him. The plans initially provided clearly stated that they were of the ground floor, only. They did not purport to be of the whole building. The second floor has windows. Looking at the front of the building there are clearly three storeys. The Complainant could not possibly have been misled. When the building was stripped the second floor was measured and the drawing of it added. The Committee does not see any justified criticism of the way this was done.
- The third element is that levels were said not to be provided. The levels were recorded on the plans, as where there are steps up the amount of the step was shown, so levels could be calculated. The Inquirer felt strongly that all data should be visible on the plan, and not have to be calculated. The Committee agrees that this is best practice, and disagrees with the Respondent on the point. That the Complainant might have preferred a simple plan was not as important as providing a plan that leaves no questions, and the franchisor did have to ask. It is not a point that, however framed, the Committee would consider serious enough to be UPC.
- The fourth is that it is said that beam dimensions were not shown. The dimensions of the two important beams were clearly and precisely shown. That others may not have been may or may not be a justified criticism, but cannot (alone or cumulatively) amount to UPC.
- The fifth is that the survey was said to be carried out “in a piecemeal fashion”. The Committee was unable to discern, despite making considerable efforts to do so with the witnesses and the advocate, why carrying out a survey in stages, doing at the start only the parts of the building that were accessible, and filling in the gaps later, was anything other than sensible.
- For these reasons, even if the allegation had been framed differently it would have been found not proved.
- Allegation three is that the Respondent did not adequately deal with the design and revised scheme in four specified ways. The allegation is clearly pleaded, as was accepted, conjunctively – that is the whole scheme to be judged.
- The first particular refers to levels and access. The levels are sufficiently recorded in the data obtained by the Respondent’s colleague, and indicated on the plans. There is confusion in the drawings for the revised scheme, in revisions B and C. The natural assumption is that each revision supersedes its predecessor. Revision C did not have access ramps and dealt with the removal of the staircase. The Committee accepted the Respondent’s explanation that Revision C was produced for the Complainant to show the franchisor the space within which they would be working for shop-fitting, shop-fitting naturally including the provision of ramps down into a lowered ground floor. It would have been better for Revision C to have had a new drawing number or title, which would make such confusion impossible. It is not possible to regard that as serious enough to UPC, whether singly or cumulatively with other matters referred to in this decision.
- The internal height/headroom is the second alleged failing. The Respondent’s view was that the head heights were adequate for retail, could be provided for any given location from the measurements taken, and need not be shown on the drawings. The Committee agrees with the Inquirer that a plan of a building is of a three-dimensional object, and that room heights should be shown on the plan so that it accurately reflects all three dimensions of the building. However it is not that the heights were not measured, and every time the Respondent was asked to produce a cross-sectional drawing it was produced from the data taken from the measured survey. There is no failing here sufficient to amount to UPC. The mischief said to result was that the building did not have ceiling heights high enough to cope with the franchisor’s display units. It is unfair to blame the Respondent for this. The franchisor is a national company of some considerable size. Its representatives visited the building on 22 November 2011. They made no point about ceiling heights. The franchisor’s architect saw the plans and did not specify minimum heights. The Complainant had run a franchise for that franchisor for 15 years. In fact he had no fewer than four such franchises. While he is not a property developer, he was a businessman, engaging in a speculative building development in the hope of relocating his existing franchise business to the new building. The Committee accepted the Respondent’s evidence that he had never set foot in the Complainant’s existing practice. It was not until 16 April 2012 that the Complainant forwarded to the Respondent revised layouts from the franchisor based on 2.6 metre clear height in the retail area. If the Complainant or the franchisor had a minimum height requirement it really was for them to say.
- While as a matter of best practice perhaps the Respondent should have asked whether there was a minimum height requirement, the Committee also accepted the Respondent’s evidence that there was no reason for him to be on notice of this for three reasons. First one would expect the franchisor or Complainant to say if there was a minimum requirement (especially as the franchisor not only sent two people to look at the building but also had its own architect look at the plans, and she specifically asked for (and was given) ceiling heights). Secondly, the Respondent’s own optician trades from premises with a low ceiling height so it was not obvious to him. Thirdly, the town has many old buildings with low ceiling heights successfully converted to retail. This, whether singly or cumulatively, cannot be UPC.
- The third asserted failure related to the sloping first floor. The statement of case of the ARB does not deal with this in any detail. The Inquirer states that this should have been done earlier in the process than it was. That was not the allegation, which was that it was not done adequately at all. It is clear that it was. Insofar as there is reference to raising floors, it is a misnomer: to level the floor certainly involves raising the parts which have dropped, but it is not to be regarded as raising the floor, which has a different planning context. A structural engineer was involved to ensure that the structure would be sound.
- The fourth asserted failure relates to the staircase. The thrust of the criticism was that the staircase rising from the ground floor was not eighteenth century but, at least at its lower levels, mid twentieth century. Once the stone steps down to the cellar were examined it was said that it should have been clear that its position was not entirely original. Even if it was covered in cladding, once that was removed it should have been apparent that the timber was not eighteenth century. If there was doubt then (even if it was prohibitively expensive) the ARB says that Complainant should have been told that wood analysis would reveal its age.
- This allegation cannot be found proved, because the second application had the staircase removed, on economic grounds. The critique for the first application is also not justified, because the conservation officer was clear that it was the position of the staircase that was important to the visual appearance of the old building rather than how old the staircase itself was. The conservation officer was not relying upon its age. At the beginning the Respondent did assume that it was 18th century, and he did not seek to argue that its importance was less because it was not in fact ancient. Given the clear view of the conservation officer as to the importance of its position there would have been little point in doing so. Nor would there have been any point when there was a new conservation officer, because the previous one had been promoted to supervise the person who replaced her. Overall, the conservation officer had three points important to her: beams, windows and staircase. The beams were accommodated, and the windows shown not to be original and so permission given to enlarge them as sought, and permission was given for the stairs to be moved.
- It was a Grade II listed building, so it is only safe to have assumed that the stairs were 18th century before seeing them uncovered. It is not UPC not to assert later that they were younger. It is clear from the Inquirer’s report that the conservation officer was very keen on keeping stairs (of whatever age) in the same location, and only with the greatest of reluctance agreed to them being moved on economic grounds, fully knowing and accepting that they were not 18th Only by submitting a new economic basis was permission obtained for them to be removed. It follows that whatever the Respondent had put forward on architectural or conservation grounds could not have prevailed. This was not a failure to advance his client’s case: it was advanced when there were grounds to put forward. This was not a failing.
- Accordingly the Committee finds UPC proved in respect of allegation one, and finds allegations two and three not proved.
- There are no aggravating factors in relation to the failure to provide terms of engagement. The project started with a measured survey, but the building was bought without it being prepared, and the involvement of the Respondent continued and evolved. He should have issued terms of engagement for the task of the survey and then kept the matter under review and did not. The Respondent clearly accepts the need for terms of engagement to be provided (as much for his protection as for that of the client). There is no reason for the Committee to depart from the usual sanction when such an allegation is found proved.
- The Committee reprimands the Respondent.