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Appealing to the middle ground

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Is mediation the best way forward for planning disputes, and can architects avoid conflicts of interest in novated works?

Planning applications often involve an assessment of conflicting interests, but the process is controlled by the statutory planning system which tends to be rigid, and the participants often find it hard to reach compromises. Mediation could improve the present system, which often leaves a bad feeling either for the refused applicant or the over-ruled objector.

The recent Planning Green Paper refers to mediation as a 'simple, constructive and user-friendly form of dispute resolution'. There is a feeling that many planning disputes should never have entered the appeals system and could be resolved if an alternative means of resolving them was available. The DTLR has just let a second research contract to the same team which aims to show how this might be achieved.

The new strict timetabling procedures introduced by the Inspectorate in August 2001 seem to be a victim of their own success. Appeal decisions began to be made quicker than decisions by some local planning authorities. Applicants seem to have responded by seeking hearings where previously they would have used the written procedure, with the result that demands on inspectors have now slowed things down a bit. Mediation, it seems, might reduce the demand for appeals, reduce the workload of planning officers and introduce a demand for professional mediators, which might lead to employment possibilities for some architects.

Partnering contracts On a separate matter, a determining issue in the success of Jonathan Ball in the case of Jonathan Ball v Eden Trust, was the conflict of interest undertaken by one of the solicitors involved. This part of the story has an important lesson for all practising architects.

'Can confidential information truly be protected when solicitors act against a former client? It's a question fraught with hazards, ' said Duncan Curley in The Times law report of 16 April 2002, on which I rely here.Curley is a solicitor in the London office of McDermott, Will & Emery and represented Jonathan Ball in his action against D&A.

Ball is the Cornish architect who co-founded the Eden Project. At an early stage in its life, Ball retained a London firm of solicitors, D&A, to help to set things up so that funding could be received from the Millennium Commission. On Ball's behalf it formed the Eden Trust, which was the eventual recipient of the grant.

Once the trustees and funding were in place, Ball was removed from the project. He sued the Eden Trust, on the grounds that he had not been properly compensated for his several years' work. D&A was instructed by the Eden Trust despite protests from Ball about the firm's possible conflict of interest. A High Court injunction followed and D&A was prevented from continuing to act for the Eden Trust against Ball, on the grounds that there was a theoretical risk that confidential information on its files could be used in the case and might be passed to his opponents.

The question of when a professional adviser can accept an instruction to act against a former client is a frequent one in the practices of solicitors, barristers, accountants and other professionals. There are at least two potentially conflicting duties that can give rise to a conflict of interest in these circumstances:

the first is that client confidences must always be preserved, even after the work done by the professional has been completed. On the other hand, a professional adviser is ordinarily duty-bound to keep a client informed about anything that may affect the client's decisions. In this way, an adviser can be caught in an impossible situation.

One way to get around the problem is to put in place office procedures which maintain a separation of information flows between conflicting departments. But are Chinese walls adequate to safeguard client confidences? This question was considered by the House of Lords, which concluded that each case had to be decided on its own merits, which means there is no cast-iron certainty that any particular safeguards will be up to judicial high standards.Within weeks of its solicitor being barred from acting for it, Eden Trust settled with Ball.

We do not customarily find ourselves instructed to act against former clients, but we are frequently presented with the proposition that, having developed a brief and a design and specification for a building owner, we should go on to take our instructions from a contractor with whom the same owner is entering into a contract for the same building.

As a council member and director of the ACA, which has published the very successful partnering form of contract PPC2000, I have every sympathy with the spirit of 'partnering'.

But a contract is a contract and is in place to protect the different and potentially conflicting interests of the contracting parties. It is simply selfdeluding for a building owner to assume, as they must when the prospect of novation arises, that 'my architect will go on protecting my interest; after all, he understands it better than anyone else'.

In my view, it is equally selfserving for an architect to accept such a potential conflict of interest. I am surprised that firms which agree to be 'novated' are allowed to retain their licence to practice. A number of partners in D&A have lost theirs. Be warned!

Brian Waters is principal of The Boisot Waters Cohen Partnership, tel 020 7828 6555, e-mail: brian@bwcp. co. uk, www. bwcp. co. uk

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