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There is no doubt that setting out can cause problems, writes Kim Franklin. There is seldom a single point of responsibility for the production of setting out drawings. Instead, the process is collaborative, involving the various designers responsible for the building, the landscaping, the roads and drains.

There is also no clear boundary between the design and the physical process of locating the building on the ground. The designers work with the contractors to resolve queries as the building is set out.

A mistake of a few centimetres can have consequences out of all proportion to the error, such as an action for trespass, a hurried application to the planners, feverish negotiations with potential tenants and, if all else fails, demolition. Once the dust has settled, the task of finding where the buck stops begins.

Standard forms of contract tend to be silent on the question of setting out. Instead, attempts to point the finger at those responsible for mistakes rely on various contractual phrases along the lines of 'the designers will satisfy themselves as to the accuracy of any survey information' or 'drawings issued for construction should be checked by the contractor'.

The number of potential culprits, the complexity of the process and the size of the financial loss when something goes wrong make up a recipe for litigation - as architect Graham Whitehouse Practice (GWP) found in the case of Hodson Developments Limited v GTA Civils (Judgment 13.07.05).

GWP was engaged by the claimant developer for a housing development near Aylesbury. The planners were concerned about the layout of one particular property in a dominant position. They imposed a condition that it be set back further from the road. GWP's drawings, which complied with the planning conditions, were subsequently changed by the defendant civil engineer, who moved the location of the house to improve access.

Crucially, the engineers did not notify anyone of the change and it was not until the house was constructed to wall-plate level that the planners spotted it. They described it as 'a strident and oppressive feature, overdominant in the street scene' and issued an enforcement notice requiring its demolition.

After an unsuccessful appeal the house was demolished and rebuilt in the right place.

The developer claimed losses of more than £100,000.

One of the various issues for the court to rule on was whether the architects ought to have checked the engineers' drawings and spotted the change of position. The judge held that GWP was under no contractual duty to examine the drawings in detail and was entitled to expect that the engineers would merge its drawings without changing them. While it was obliged to make a cursory examination for glaring errors, the change of location would not have been readily apparent.

The engineers were ruled to be liable for the developer's losses.

While it may not be unreasonable for designers to be held responsible for their own mistakes, as setting out involves various disciplines, you may want to be make sure your contract makes it clear that you will not be responsible for the mistakes of others.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.

crownofficechambers. com

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