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Mr Stephen Algar

THE ARCHITECTS REGISTRATION BOARD

PROFESSIONAL CONDUCT COMMITTEE

In the matter of

Mr Stephen Algar (049267A)

Held on 16, 17, 24 and 25 August 2016

 

At

ARB

8 Weymouth Street

London

W1W 5BU

———-

Present

Mr Julian Weinberg (Chair)

Mr Roger Wilson (PCC Architect Member)

Mr Stephen Neale (PCC Lay Member)

Mr Stephen Battersby (Clerk to the PCC)

———–

 

 

1.       The Board is represented by Mr Jonathan Goodwin. Mr Algar has attended this hearing but is not legally represented. Mr Algar faces a charge of unacceptable professional conduct (“UPC”) and/or serious professional incompetence (“SPI”) based on two allegations in that he:

 

1.1.        Failed to act with integrity and avoid any action or situations which were inconsistent with his professional obligations in that;

 

1.1.1.            He misled Lambeth Council Building Control by submitting a Building Notice dated 21 January 2003 which failed to refer to a material change of use and his intention to create a self-contained flat;

1.1.2.            He failed to submit a compliant Building Regulations Application for a material change of use.

 

1.2.    He failed to carry out his work faithfully, conscientiously and with due regard to relevant technical and professional standards in that;

 

1.2.1.            He failed adequately, or at all, to comply with the terms, and implementation, of a planning permission to the basement Ground floor flat;

1.2.2.       He failed adequately, or at all, to ensure that the original works were correctly completed to the standards required for a residential conversion;

1.2.3.             He failed adequately, or at all, to supervise the contractor on site.

 

and that by doing so, the repsondent acted in breach of Standards 1, 4 and 5 of the Architects Code: Standards of Conduct and Practice 2002 (“the Code”). UPC alone is alleged in relation to allegation 1.1. and UPC or SPI are alleged in relation to allegation 1.2.

 

Background:

 

2.       This case arises out of a complaint made by Mr EC (“the complainant”) in respect of the professional services carried out by the respondent who, at the material time, was trading under the name, Add Design Limited, whose company name has subsequently been changed to Algar Design Limited. The complainant had not directly engaged the services of the respondent, but was a third party purchaser of the premises.

 

3.       The background to the allegations is that the complainant is the leaseholder of the garden flat in question. He purchased the property from a third party in 2010, who had in turn bought the property from Algar Design Limited in 2008. The respondent remains the freeholder of the property. Following his purchase, the complainant discovered water egress in the corner of the bedroom towards the end of 2010 and queried with the respondent whether the damp caused was as a result of poor design or construction of the conversion. A dispute developed and it is alleged that the property was constructed in breach of planning permission and building regulations. The conversion work was deficient.

 

4.       The complainant provided a report from C Services Ltd, Structural Engineers which details a number of defects in the conversion. On 28 July 2015, Mr Robert Morrissey, an Inquirer appointed by the Investigation Panel of the ARB, produced an interim report in which he identified a number of errors in the respondent’s work. A final report dated 4 September 2015 was also produced.

 

5.       Save for allegation 1.2.1 which is admitted, all the allegations are denied. It is further denied that if any factual allegations are found proved, such failings amount to UPC or SPI.

 

6.       In reaching its decisions, the Committee has carefully considered the live evidence of the complainant, Mr Morrissey, and the respondent together with the documentary evidence presented to it in the Report of the Board’s Solicitor and the 453 pages of documents exhibited to it. The respondent has also provided a defence document.

 

7.       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.

 

Findings of fact:

 

8.       The Committee makes the following finding of facts:

 

Allegation 1.1:

 

Allegation 1.1.1

 

9.       The Committee finds the facts not proved for the following reasons:

 

10.   It is agreed between the parties that:

 

·         The respondent had applied for, and been granted planning permission in December 2002, for the “Conversion of the basement to form a self-contained 1 bedroom flat creating 5 self-contained flats in total involving a basement rear extension, formation of a vehicle crossover, an off-street parking space and associated alterations”;

·         On 21 January 2013, the respondent submitted a Building Notice application to Lambeth Council Building Control. The notice refers to the present use as “storage” and the planned use as “residential”;

·         The site address is on the application form is referred to as “Basement Flat”;

·         The proposed works are stated on the application form as referring to the building of a new solid floor to basement, new internal walls, new drainage and a new single storey extension, and;

·         The application was signed by the respondent as Architect.

 

11.   Mr Morrissey gave clear and consistent evidence, which the Committee accepts, that the application should have fully complied with regulations 12 and 13 of The Building Regulations 2000, a copy of which was provided to the Committee. He stated that the application should specifically have referred to a ‘material change of use’ in that the intention was to create a self-contained flat in the basement. He stated that, as an architect, the respondent should have been aware of that requirement, yet no such reference to these requirements was made.

 

12.   Having considered the Regulations, the Committee finds that the respondent was under an obligation to refer to a material change of use, but did not do so. By reason of the respondent’s application for planning permission for a self-contained flat, the Committee has no difficulty in finding that the respondent had an intention to create a self-contained flat.

 

13.   Having found those elements of the allegation proved, the Committee then considered whether, by submitting that form, he misled Lambeth Council Building Control. In reaching its decision as to whether that was more likely than not to have occurred, the Committee has considered the totality of the evidence in the round.

 

14.   The Board relies on a letter of 27 January 2014 from the Council Building Control Officer to the respondent’s solicitors. The letter refers to the proposed works as set out on the application and confirms that a completion certificate was provided only on the basis of the works referred to in the application. It further states:

 

It more recently came to our attention that the basement area has been used as a flat….The description of work with the original Building Notice does not specify the formation of a self-contained flat and Mr B… (the relevant Building Control Officer at the time) has confirmed that he did not consider the application to include the formation of a self-contained flat. I understand that Mr Algar believes that the BN application covered the conversion to a flat, on the basis that the application form suggested the proposed use to be ‘residential’. This argument however is not one that is accepted by The Council. The fact remains that the work was completed over 8 years ago and the Council’s powers of enforcement have now elapsed”.

 

15.   The Committee notes that neither party has called Mr B as a witness, nor has he provided a statement. Given the hearsay nature of the evidence about whether Mr B was misled, the Committee has given less weight to the contents of the letter than it would have, had Mr B attended this hearing and given live evidence. The respondent stated that he had no intention to deceive the Council. The respondent also stated that, given the terms of the planning permission granted, and the contents of the form, it was clear that a change of use was being sought, and that the Council should have been aware of it. He stated that he referred to the four areas of work detailed as they were the areas most of concern to him. He stated that the Mr B, on behalf of the Council, was not misled because:

 

·         He had had numerous meetings with Mr B on site over the period of the building works and he was well aware from his conversations with him and from seeing what was taking place, that a self-contained flat was being constructed;

·         Despite having repeatedly viewed the works on site and having clearly seen what was taking place, he nevertheless signed off the works as complete;

·         That no objection was raised at any stage to the works being in breach of the Building Notice and that the Council’s letter of 27 January 2014 was the first time the Council had taken any issue with it.

 

16.   The Committee has also considered the contents of paragraph 23 of Mr Morrissey’s statement. Whilst confirming that the Building Notice application was defective, he concluded that there was no clear evidence that the respondent intended to deceive. He considered that “It may have been that the two parties….had a misunderstanding and were working at cross purposes but….this is not clear”.

 

17.   The Committee considers, having taken all the evidence into account, that, had the Council been misled, they would undoubtedly have raised the issue at the time, following one of the many inspections, and in any event, before signing off the works. Given that they would have been aware of what was being constructed, and given that no issue was raised at the time, the Committee cannot be satisfied to the required standard that the Council was misled.

 

18.   In the circumstances, the Committee finds this allegation not proved.

 

Allegation 1.1.2:

 

19.   The Committee finds the facts proved for the following reasons:

 

20.   Mr Morrissey stated that, having spoken to the Building Inspector at Lambeth Borough Council, the inspector had stated “that if the extension covered by the works in hand were to form part of a new dwelling, then there would need to be an appropriate notice submitted to him at a later date.  He also stated that the Building Control Manager had stated that the form should have stated “material change of use” in the description of the proposed works. He stated that the Manager had identified a number of items of additional information that would have been required if an application was being made for a new flat.

 

21.   Mr Morrissey concluded that “It is clear that the Building Notice submitted by Mr Algar was defective and that, in effect, Mr Algar failed to submit a Building Notice or Application for the formation of a new dwelling”. In reaching that conclusion, he relied on breaches of the Building Regulations 2000 referred to above.

 

22.   The respondent denies the allegation. He stated that he had identified the address of the intended works on the submitted Building notice as “Basement Flat….” and that the Notice clearly stated the intended use as being residential. He had requested a site visit with the Building Inspector to discuss the full scope of the proposed works and had given him a full set of drawings which would have included  a copy of the approved planning drawings.

 

23.   So far as allegation 1.1.2 is concerned, the respondent states that he had had regular meetings with the Building Inspector who never suggested that the documentation was not in order and that, having monitored the site activities, he issued a Completion Certificate.

 

24.   However, the Committee accepts the evidence of Mr Morrissey that the Building Notice application was defective for the reasons set out in its reasoning in respect of allegation 1.1.1 above. The Committee has also taken into account the contents of the letter from Lambeth Building Control to the complainant dated 31 March 2015 confirming that there is no Building Regulations approval for the flat as :The current layout does not meet the regulations”.

 

25.   In the circumstances, the Committee finds that the respondent failed to submit a compliant Building Regulations Application for a material change of use.

 

26.   The Committee then considered whether, by failing to act as alleged, the respondent failed to act with integrity and avoid any action or situation which is inconsistent with his professional obligations. The Committee has had regard to the case of Scott v Solicitors Regulation Authority [2016] EWHC 1256. It has borne in mind that it is open to the Committee to make a finding of a lack of integrity even though an allegation of dishonesty is not alleged. However, bearing in mind the evidence, taken at its highest, including Mr Morrissey’s conclusions about the parties having a misunderstanding and talking at cross purposes and that there was no evidence that the respondent intended to deceive the Council, the Committee does not find that the facts proved amount to a lack of integrity on the respondent’s part.

 

27.   However, the Committee does consider that that it is incumbent on the respondent, as an architect, to submit a compliant Building Regulations Application and that not to do so, is inconsistent with his professional obligations.

 

28.   Standard 1 of the Code states:

 

Architects should at all times act with integrity and avoid any action or situations which are inconsistent with their professional obligations.

1   Architects should not make, support or collaborate in any statement, written or otherwise, which is contrary to their professional opinion, or which they know to be misleading, or unfair to others, or otherwise discreditable to the profession.

 

29.   As such, the Committee finds allegation 1.1.2 proved. In submitting a non-compliant application, the Committee finds that the respondent failed to avoid any action or situation which was inconsistent with his professional obligations. By doing so, the Committee finds that the respondent acted in breach of Standard 1 of the Code.

 

Allegation 1.2:

 

Allegation 1.2.1

 

30.   By reason of the respondent’s admission, the Committee finds the facts proved.

 

31.   Details of the planning permission granted are referred to above in this determination. The Committee has borne in mind that the respondent’s admission to this factual allegation relates to the provision of car parking space. However, it is additionally the Board’s case that the premises was being used as a two bedroomed flat in breach of the planning permission granted.

 

32.   The respondent stated that he did not build a second bedroom, but rather a dining room / study. Whilst initially denying the allegation, the respondent, in response to questions put to him by Mr Goodwin, reluctantly accepted that the flat was used as a 2 bedroomed flat and admitted the factual allegation. He accepted in evidence that he was aware that, from a few months after the flat was let in April 2004, it was being used as a 2 bedroomed flat. The Committee has also had regard to the contents of the respondent’s letter dated 12 February 2008 to his solicitors responding to enquires from the purchasers solicitors that “We confirm our property has been used as a two bedroom flat since planning consent was granted in 2002 and occupied in 2003. Mr O’Sullivan stated that we could apply for an Established Use Certificate. This would be a formality as we have been using this room as a bedroom for over four years…”. Furthermore, in response to the Investigation panel’s preliminary decision, the respondent accepted that, having rented the flat to a couple after the conversion, he became aware that “they did use this room as a second bedroom”.

 

33.   In all the circumstances, the Committee therefore finds the facts of this allegation proved both in respect of the car parking requirements but also in respect of a breach of the planning permission by permitting the premises to be used as a two bedroom flat and in respect of its layout.

 

34.   Standard 4 of the Code states:

 

“Architects should carry out their professional work faithfully and conscientiously and with due regard to relevant technical and professional standards.

 

1         …..

2         Architects should perform their work with due skill, care and diligence”.

 

35.   Standard 5 of the Code states:

 

“In carrying out or agreeing to carry out professional work, Architects should pay due regard to the interests of anyone who may reasonably be expected to use or enjoy the products of their own work.”

 

36.   By reason of the facts found proved, the Committee therefore finds that the respondent acted in breach of standards 4 and 5 of the Code.

 

Allegation 1.2.2

 

37.   The Committee finds this allegation proved for the following reasons.

 

38.   The Building Notice submitted by the respondent particularised the works to be undertaken. However, Mr Morrissey identified “significant areas of non-compliance” with Building Regulations as did C Services Ltd. It is sufficient to summarise areas of concern in that they related to:

 

·         Structure;

·         fire safety;

·         resistance to passage of moisture;

·         ventilation;

·         thermal and sound regulations.

 

39.   Mr Morrissey concluded that the works to the flat “fell far short of the requirements of the Building Regulations current at the time the flat was formed”.

 

40.   The respondent did not dispute that there were defects in construction, but stated that they were as a result of misplaced trust in his builder. He accepted in his representations to the Board dated 24 August 2015 that “The flat was not built in strict accordance with the Planning Permission…..”.

 

41.   In all the circumstances, the Committee finds that the respondent failed adequately, or at all, to ensure that the original works were correctly completed to the standards required for a residential conversion.

 

42.   By reason of the facts found proved, the Committee finds that the respondent acted in breach of Standards 4 and 5 of the Code.

 

Allegation 1.2.3

 

43.   The Committee finds the facts proved for the following reasons.

 

44.   The respondent states that the contractor was well known to him. He had had regular meetings with him to review critical stages of the works. He stated that it was “very difficult to supervise work, which is then covered over”. His initial position was that he did adequately supervise the contractor’s work. In his email to the Board dated 11 June 2014, he stated that “I strongly reiterate, the original works were carried out properly, to the best of my knowledge and I conscientiously and diligently oversaw the works both independently, and with the building inspector….on a very regular basis as they progressed on site”.

 

45.   However, in his representations to the Board dated 24 August 2015, he accepted that “any omissions or deficiency in the built works would be construed as a level of poor site supervision, and/or, poor specification of intended works, on my part, for which I accept and take full responsibility”.

 

46.   In his letter to the Board dated 13 November 2015, he stated: “However, it is clear that I gave too much trust in my builder, and my site supervision of this contractor should have been more involved than is usually required, although I was unaware of this at the time….I should have been supervising the Contractor far more closely, for this lack of judgment, I apologise”.

 

47.   In response to questions put to him by Mr Goodwin, the respondent accepted that whilst he did not accept that he did not supervise the contractor at all, he did accept that he failed to adequately supervise the contractor on site, and accepted culpability on that basis.

 

48.   In the circumstances, the Committee finds the facts of this allegation proved.

 

Finding on Unacceptable Professional Conduct / Serious Professional Incompetence

 

49.   Having found allegations 1.1.2, 1.2.1, 1.2.2 and 1.2.3 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.

 

50.   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.

 

51.   The Committee has considered the authority of Spencer v General Osteopathic Council [2012] EWHC 3147 (Admin).It has borne in mind in reaching its decision that for a finding of unacceptable professional conduct to be made, “a degree of moral blameworthiness on the part of the registrant likely to convey a degree of opprobrium to the ordinary intelligent citizen” was required. Any failing should be serious. The Committee accepts that “mere negligence does not constitute misconduct” and that “a single negligent act or omission is less likely to cross the threshold of misconduct than multiple acts or omissions….a single instance of negligent treatment unless very serious indeed, would be unlikely to constitute deficient professional performance”.

 

52.   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.

 

53.   It is the Committee’s finding that the facts found proved, whilst relating to a single project, are serious failings. Mr Morrissey considered, and the Committee accepts, that “The extent and multiplicity of non-compliance in this case is serious and well short of good practice. It is a serious failing”. Similarly, the Committee considers that as an architect, knowingly allowing the premises to be occupied in breach of the granted planning permission is a serious failing that undermines public confidence, as is constructing the property in breach of building regulations. There is undoubtedly an element of crossover of conduct capable of amounting to both UPC and SPI. However, the Committee finds that, so far as the allegations found proved and the corresponding breaches of the Code are concerned, both individually and collectively, the respondent’s failings are serious and adversely impact both on the reputation of the architect and the profession generally. Such failings can quite properly be categorised as UPC.

 

54.   The Committee therefore finds that the Respondent’s conduct does amount to unacceptable professional conduct.

 

55.   The respondent then addressed the Committee in mitigation and his wife gave supporting evidence in mitigation, affirming her husband’s commitment to the profession. The Committee then considered whether to impose a sanction, and if so, which one. The Committee has had regard to the public interest, which includes the need to protect the public, to maintain confidence in the profession and the Board and to declare and uphold proper standards of conduct, behaviour and competence. The Committee has carefully considered all the evidence and submissions made during the course of this hearing. It has heard and accepted the advice of the 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.

 

56.   Having taken into account the respondent’s submissions, the Committee has identified the following mitigating factors:

 

·         he has fully engaged in the regulatory process;

·         he made limited admissions in respect of allegation 1.1.2 and had previously accepted in correspondence that his supervision of the contractor had been inadequate;

·         he has expressed contrition for his failings, apologising for his conduct to the Board and to the complainant;

·         he has stated that he has taken corrective action to address his failings, for example by outsourcing the determination of Building Regulation applications to external agencies, using Design and Build contractors, and by making increased use of computerisation. However, the Committee notes that he still undertakes responsibility for Building Regulation / Notice applications and the further steps taken do not specifically address the shortcomings found proved.

 

 

 

57.   The Committee has identified the following aggravating factors:

 

·         the respondent has demonstrated limited insight into his failings to the extent that he has not demonstrated any recognition of the impact of his failings in allowing the premises to remain occupied in breach of planning permission and Building Regulations, which posed a clear risk to the health and safety of occupants of this flat and others, for example because of the lack of adequate ventilation and the fire risk identified;

·         having identified the fact that the premises were being used as a two bedroomed flat in breach of the planning permission granted, he nevertheless allowed the breach to continue, even though he was aware of other remedial steps that could be taken that would not involve requiring the occupants to vacate the premises (eg applying for retrospective planning permission, applying for an Established Use Certificate or applying for regularisation of the works under Building Regulations), yet he chose not to take such steps;

·         his failings have put the complainant to substantial cost and inconvenience;

·         notwithstanding the planning and Building Regulation breaches identified, the respondent has made a substantial financial gain in selling the leasehold interest in the flat;

·         his failing as found proved in respect of allegation 1.1.2 demonstrates a significant failing in his understanding of Building Notice applications.

 

58.   The Committee has noted that the respondent has a previous adverse finding recorded against him for failure to maintain professional indemnity insurance. The Committee, whilst taking the fact of this finding into account, has nevertheless borne in mind that the previous finding is in relation to an unrelated matter and the facts giving rise to the findings of this Committee do not post-date the previous finding of the PCC.

 

59.   Taking all these factors into account, the Committee considers the risk of repetition of his failings to be moderate.

 

60.   The Committee notes that the extent and breadth of the matters found proved are serious to the extent that Mr Algar’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.

 

61.   The Committee first considered whether to impose a reprimand. Given the seriousness of the UPC found proved, the Committee considered the respondent’s failings too serious for such a sanction to be either appropriate or proportionate.

 

62.   The Committee then considered whether to impose a penalty order but discounted this as an appropriate sanction for the same reasons.

 

63.   The Committee then considered whether to impose a suspension order. 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 which posed a clear risk to third parties. As such, the Committee considers that a suspension order is the appropriate and proportionate sanction to impose to protect the public and the reputation of the profession and to declare and uphold professional standards of behaviour and conduct.

 

64.   The Committee gave consideration to an erasure order, but decided against such a sanction given the suitability of a suspension order. Given the absence of a finding of a lack of integrity, the fact that the UPC found proved is not fundamentally incompatible with continuing to being an architect and is capable of being remedied, the Committee considered that an erasure order would be unduly punitive and disproportionate.

 

65.   The Committee therefore imposes a suspension order for 18 months which the Committee considers to be an appropriate period to reflect the seriousness of the respondent’s failings.

 

66.   That concludes this determination.

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