Ms Paula Butterfield
THE ARCHITECTS REGISTRATION BOARD
PROFESSIONAL CONDUCT COMMITTEE
In the matter of
Ms Paula Butterfield (061480G)
Held on 24 and 25 October 2016
8 Weymouth Street
Mr Paul Housego (Chair)
Ms Judy Carr (PCC Architect Member)
Mr Martin Pike (PCC Lay Member)
Mr Stephen Battersby (Clerk)
Mr Jonathan Goodwin of Jonathan Goodwin Solicitor Advocate appeared on behalf of the Board
Ms Butterfield attended the hearing and was represented by Mr Scott Brady QC
1. Ms Butterfield appears before the Professional Conduct Committee (“the Committee”) of the Architects Registration Board )”the ARB”) to respond to an allegation that she is guilty of unacceptable professional conduct (“upc”) or serious professional incompetence (“spi”). The ARB allege that:
“she failed to carry out her work faithfully, conscientiously and with skill and care in that:
1. she failed adequately, or at all, to carry out an accurate survey, and/or
2. she produced drawings which were inadequate and misleading, and/or
3. she failed adequately, or at all, to comply with her clients’ instructions and/or expectations that the extension to her clients’ property was to extend so that it was level with next door’s property.”
2. The Architects Act 1997 and the Architects Code: Standards of Conduct and Practice 2010 (“the Code”) apply.
3. The relevant provisions of the Code are:-
Standard 2 Competence
1 You are expected to be competent to carry out the professional work you undertake to do, and if you engage others to do that work you should ensure that they are competent and adequately supervised.
You should carry out your professional work faithfully and conscientiously and with due regard to relevant technical and professional standards
1 You are expected to carry out your work promptly and with skill and care and in accordance with the terms of your engagement.
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.
4. Ms Butterfield was retained to design a rear extension to a semi detached house. The property it adjoined had already been extended. The plans drawn by Ms Butterfield were for a rear extension of 3m, that being the planning guideline for such an extension. The plan showed the proposed extension being level with the existing next door extension. When the construction started the client noticed that the next door extension was larger, at 4.42m. The drawings showed that the patio doors would be at ground level, but the ground dropped away such that the patio outside the extension was substantially lower than the exit door planned.
5. The ARB brings the allegation following a complaint by the Complainants, made when Ms Butterfield told them that she would not engage with them further after the Complainants indicated to her that they would look to her to make good the losses the correction to the plans caused them.
Burden and standard of proof
6. 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 Ms Butterfield to prove anything. The Committee has in mind throughout its deliberations that the right to practise a profession is involved in these proceedings and proceeds upon the basis that the Human Rights Act 1998 will apply. In particular Ms Butterfield has the right to a fair hearing and to respect for her 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 or spi 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 serious, and for spi the lack of competence has to be serious.
7. Ms Butterfield denied that she was guilty of spi or upc. She admitted some of the facts, with qualifications.
8. As to 1: (survey) Ms Butterfield denied this allegation but admitted that the survey failed to meet the Trafford Council Application Checklist in respect of the ground levels, and incorrectly showed the neighbour’s extension at 3 metres.
9. As to 2: (inadequate and misleading drawings) Ms Butterfield admitted this, but only to the extent that the drawings were misleading as they showed the neighbour’s extension at three metres and to be flush with the proposed extension, as well as not showing the slope in the ground.
10. As to 3; (failure to comply with clients instructions / expectations) Ms Butterfield denied this allegation that the clients had ever communicated such an instruction or expectation (because initially various options for different sized extensions were produced). It was accepted that the Complainants may reasonably have expected their extension to be flush with the neighbour’s as the plans so showed.
11. As to upc or spi, Ms Butterfield denied both. In respect of 1 and 2 she asserted that the plans were adequate for obtaining planning permission, which was the reason they were prepared. In respect of 3, she said that the Complainants’ expectation must have been modified by the party wall notice drawings which correctly showed their proposed extension as shorter than that of the neighbour’s, the Complainants having commented on the party wall plans without mentioning this difference.
12. The Committee perused the report of the Board’s solicitor with accompanying documents running to 342 pages. The Board called oral evidence from Dr AB, and from Mr JG, the Complainants, and Ms Butterfield gave evidence. The witnesses were cross examined, and the Committee asked each some questions.
13. The ARB’s solicitor outlined the circumstances of the case. He submitted that actions of the respondent were seriously unprofessional, and incompetent, to the level of seriousness required for a finding of spi.
Submissions on behalf of Ms Butterfield
14. Mr Brady QC made very lengthy submissions which are not repeated here. While accepting that there had been some errors, it was denied that there had been specific and repeated insistence on the extension being level with the neighbour’s. He stressed that there had been misunderstanding over the use of the word “flush”.
Findings of fact
15. The Complainants bought a semi-detached house that was not in good condition. They wished to renovate it and extend it to the rear. The next door property already had a single storey extension next to the common boundary. The one dispute of fact is whether the Complainants instructed Ms Butterfield that they wanted the extension they approved to be the same length as that of the next door property, or alternatively that she knew that was their expectation.
16. There was an element of misunderstanding about the word “flush”. The Complainants meant level with next door: Ms Butterfield that the extension would be a straight line across the rear of their own.
17. There was an initial discussion in the garden of the property. The next door extension was discussed, and it was agreed that the roof pitch of the Complainant’s extension could mirror that of the neighbour. The Complainants stated that they wanted the extension to be the same length as that of the neighbour.
18. Dr AB is conversant with plans. Mr JG is not.
19. It was some considerable time later that Ms Butterfield produced her contract documentation and brief, because the initial discussion had taken place before the Complainants had purchased the house.
20. Ms Butterfield then prepared a series of options for the Complainants to consider, some showing the rear extension the same length as that of the neighbour, and some not.
21. The Complainants settled on the design submitted for planning for three reasons. First, it was 3m back from the existing structure, and that was within planning guidelines, and so would be passed quickly. Secondly, it was level with where they thought the neighbour’s extension ended. Third, it was within the budget that they had in mind, as at the time they were not certain that they would be living in the house.
22. Someone in Ms Butterfield’s office prepared a survey of the house. There was no measurement of the adjoining property’s extension, and the 3m dimension used was thought to be scaled up from an OS plan or from Google Earth. The neighbour’s extension is in fact 4.42m. The planning application drawings prepared by Ms Butterfield clearly show the extension at 3m, and the neighbour’s extension, closely abutting it, also at 3m. Mr JG had specifically requested a 3D drawing, and Ms Butterfield procured that for him. It clearly shows the ground floor extension level with that of the neighbour.
23. In her communications with the Board and in oral evidence Ms Butterfield accepted that this would have raised the expectation in the Complainants that this was how it would be built.
24. Because this part of the extension was very close to the extension of the neighbour there had to be Party Wall Act drawings prepared for a Party Wall Notice.
25. Ms Butterfield prepared those personally, and when she did so it was apparent to her that the adjoining property’s extension was longer than 3m. She drew the Party Wall Act drawings correctly. She sent these plans to the Complainants, but without mentioning this change. The Complainants did not look for, and did not notice (and could not be expected to notice), that the neighbour’s extension (only shown on those plans to the extent of its external wall) was longer than 3m.
26. As Ms Butterfield had predicted, planning consent had been swiftly obtained, and work commenced after the Party Wall matter had been concluded without difficulty. On Saturday 23 May 2015 Dr AB and Mr JG went to site and saw the foundations being dug. It was obvious that the foundations were far short of the neighbour’s extension. The Complainants immediately called a halt to work and asked for Ms Butterfield’s observations.
27. Her position consistently is and has been that the Complainants got exactly what they wanted. They got an internal design that met all their requirements, by having it limited to 3m they got their planning consent swiftly, and the scale of the extension meant that it was within their budget.
28. Two matters are immediately apparent. First, when Ms Butterfield saw that the neighbour’s extension was longer than 3m this was a fact which, when the Complainants’ extension was built, would be obvious. Secondly, the Complainants’ reaction upon finding this out clearly establishes that this was a very important point for them. Ms Butterfield accepted that the Complainants would have had the expectation that their extension would be level with the neighbour’s by reason of their discussions, the planning drawings and in particular the 3D drawing.
29. There was an additional problem with the drawings prepared by Ms Butterfield for planning. At the rear of the extension was a patio door. The drawings, and a 3D drawing, prepared by Ms Butterfield showed this patio door level with the ground. In fact the ground slopes away and downwards so that, when the extension was built (at 4.42 m) there is a drop from the patio doors to the ground of over 600 mm.
30. Ms Butterfield’s letter setting out her position on these various allegations stated that the Complainants “must” have modified their expectation on receipt of the Party Wall Act drawings. The Committee does not agree. The drawings were not understood by the Complainants to show the neighbour’s extension as longer than 3m – and they would not be looking to check that -, and Ms Butterfield did not tell them that the neighbour’s extension was not as the Complainants thought.
31. It was accepted by Ms Butterfield that the survey failed to meet the Trafford Council Application Validation Checklist in respect of ground levels and incorrectly showed the neighbour’s extension at 3m. The factual allegation was denied, on the basis that the plan was adequate for the purpose for which it was prepared; a planning application. While this is technically correct, in that the planning consent was granted on the basis of those plans, the plans were not correct for the planning application because they should have shown the adjoining extension correctly. The Council did not check the plans and so the consent was granted. This allegation is found factually proved.
32. The second factual allegation was admitted on the basis that the planning drawings were misleading by showing the extension at 3m and level with the proposed extension, and not showing the slope on the ground. The Committee finds these inadequate and misleading.
33. The third allegation was failure to comply adequately or at all with client instructions and/or expectations that their extension would be level with next door’s extension.
34. There was a conflict of evidence on this point. Plainly the Complainants and Ms Butterfield viewed matters somewhat differently. What is certain is that they developed a common understanding that the extension proposed to be built, and for which planning consent was obtained, was to have a single story extension adjacent to that of the neighbour, and level with it. Mr JG was particular about the need for a 3D plan, which was provided, and which very clearly shows this to be the case.
35. Insofar as the defence is that there were a variety of different options, this was correct, at the early stage, but the Complainants settled on their original thought which was to have the ground floor extension level with that of the neighbour. This was a clear expectation and understanding of the Complainants, as Ms Butterfield now accepts. Their reaction to the footings being dug clearly demonstrated how important it was to the Complainants. It is also clear that Ms Butterfield did not appreciate at the time how important this was to the Complainants.
36. The Committee next has to consider whether the matters found proved constitute unacceptable professional conduct or serious professional incompetence.
37. Unacceptable professional conduct connotes moral blameworthiness. The Committee considers these matters of competence rather than professional conduct. Accordingly the allegation of unacceptable professional conduct is found not proved.
38. The allegation is framed in the alternative, the alternative being serious professional incompetence. Not every mistake is a matter of spi. Accumulation of small mistakes could be spi, or one large mistake may amount to spi.
39. The mistake in the planning drawings of itself was a matter of competence, but on its own would not be regarded by this Committee as serious to the extent required to found an allegation before this Committee. Failure to provide adequate representation of the ground levels on the plans falls into the same category. Cumulatively they are more serious than singly, but would still not reach the threshold of seriousness required for a finding of spi.
40. The real mischief in this case arose when Ms Butterfield prepared the Party Wall drawings. She drew the Party Wall drawings correctly showing the neighbour’s extension longer than that to be built for the Complainants. She should have known that the Complainants had the expectation that their extension would be level with that of the neighbour’s. She sent the Party Wall drawings to the Complainants, without written explanation. She did not attend the meeting with the Complainants and the neighbour to explain and discuss those drawings. She discussed them on the telephone with the Complainants, but did not mention her discovery that the neighbour’s extension was longer than the one to be built for them. It is not certain who measured the neighbour’s extension, but at the latest Ms Butterfield knew of this when she drew the plans. She agrees that she noticed the difference.
41. It was seriously incompetent for Ms Butterfield not to know of the client expectation, and in any event it was not competent architectural practice for Ms Butterfield not to raise this matter with the Complainants, and to assume that they would not mind. The argument that they should have noticed the change for themselves, when viewing the plans, is not an attractive one.
42. When added to the other two matters this most serious of the three means that the Committee finds Ms Butterfield guilty of serious professional incompetence.
43. The primary purpose of sanctions is not to be punitive (though this may be their effect) but to protect members of the public, to maintain the collective reputation of the profession (and the ARB as its regulator), and to declare and uphold proper standards of conduct and competence. Sanctions also help ensure that the profession better understands the importance of professional standards.
44. The Committee has considered the Indicative Sanctions Guidance. Appearance before this Committee is in itself salutary. The Act does not require the Committee to impose a sanction in every case where a guilty finding is reached, so the Committee may choose to make no disciplinary order. If it decides to impose a sanction, the Committee commences at the lowest sanction, and only if it decides that sanction is not appropriate does it move to the next level of sanction. Having arrived at a sanction that it is minded to impose the Committee then reviews the next sanction above so as to satisfy itself that this would be too severe a sanction before arriving at a final conclusion. If the Committee decides on a fine, it is limited by the Architects Act 1997 to £2500.
45. In this case the Committee does not consider that there is risk of repetition. The working practices of Ms Butterfield have changed. Ms Butterfield has 20 years with no previous appearance. The finding of spi is itself to declare and uphold proper professional standards. The purpose of sanction is not to be punitive and there is no other reason in this case to impose a sanction. The major failing in this matter was very much an unintentional omission, related to interaction with the client and not technical incompetence. Accordingly the Committee could see no reason to impose a sanction in this case.