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Giving in to planners can get you into serious trouble

A claim for negligence against a design and build contractor resulted in a substantial payment by its pi insurers last week. It provides a sobering lesson for us all.

The Yorkshire-based defendant had been appointed by a housing association for new-build sheltered housing for the elderly. The site, within a village, had once been much- disputed regarding its redevelopment.

After something of a struggle, the design received planning consent and, following routine building-regulation procedures, the defendant commenced construction.

Approval had been based on drawings from the contractor which included plans showing the new scheme together with the buildings on adjoining sites: on the one side, tea rooms; on the other, the village post office.

One local resident took a particular interest in the building work. During an evening walk with her dog, she noted that the front facade of the new building was being constructed some 500mm forward of the building line of the adjoining post office. Aware that on the planning application the facade of the new building had been shown in line with the post office, the resident brought the matter to the attention of the planning officer. A letter was duly issued requesting that work should stop, pending resolution of the 'difficulty'.

The defendant contractor responded to the local authority, saying that in its view the development had proceeded in accordance with the 'approved' design, albeit it admitted the drawing error. Perhaps naively, the firm sought to regularise matters by issuing a replacement plan showing the relationship with the adjoining building corrected (ie the new facade set 500mm forward of the post office). The contractor claimed that the adjoining building had been shown in the planning application for 'indicative purposes only', that it had not formed part of the application. And heck, claimed the contractor: the irregular building line was more in keeping with the village vernacular.

The planners nevertheless requested a further planning application with respect to this issue, a request which was complied with. In the meantime, and pending a decision at the next available committee meeting, work on the development was 'voluntarily' suspended. The planners' subsequent report recommended consent, but the planning committee unexpectedly refused permission. A horrible impasse had thus been reached.

To cut a long story short, construction halted for some eight months pending legal action which culminated in the council issuing a certificate of lawful development. Work recommenced, but following completion of the development the housing association sued the contractor for the losses arising from the contract overrun.

It alleged negligence on four counts: inadequate survey work; misleading/in- accurate drawings with respect to the planning application; inadequate site supervision; and, most seriously, inappropriate advice following the council's 'request' to stop work. However, the ensuing litigation dealt principally with the events following the issue of the council's 'request' to stop work.

Besides carrying out an accurate survey and issuing reliable drawings, the contractor probably should have: (a) recommended that building work be continued and (b) notified the council that until and unless a formal stop notice was issued, progress on site would be maintained. Under such circumstances, the council may then have been held responsible for the errant issue of a stop notice. Even so, if a certificate of lawful development had not been obtained, the defendant would have again found itself in the firing line.

Although this case relates to a d & b contract, it offers lessons to architects working under conventional appointments. Firstly, make sure your planning applications contain accurate information and that the builder proceeds in accordance with the terms of the consent. Secondly, don't let planners impede progress once a consent has been granted. If they do, be sure they can be held responsible for the consequential costs of any delay if they have acted outside their authority.

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