Hotel development — Builders contracting to architects’ firm for design — Failure to take adequate site specifications — Building not able to fit site — Defendant hotelier suffering loss — Whether architects liable — Whether builders contributorily negligent — Architects liable in damages to plaintiffs for owner’s loss
The plaintiffs were builders, the defendant was an hotelier and the third party practised as a firm of unqualified architects. The dispute concerned the Royal Oak public house, in Charing, Kent, bought by the defendant, T, in 1989. The plaintiffs undertook to design an extension to the property to bring it up to “4 crown standard” on a “no success/no fee” basis, in that they took the risk of seeking and possibly not obtaining planning permission and that they would be given the building contract if successful. They subcontracted the design to the third party on the same basis.
Planning permission was granted in March 1990 on application by the third party, as agent for the plaintiffs, and the defendant obtained an advance of £450,000 from the bank. There was an agreement for £154,516, payable monthly for the work and the design fees were £6,759. The third party did not have a supervisory duties. The work was to begin in November 1990. After planning permission was granted site measurements were taken for the purpose of applying for building regulations and it was then discovered that the building would not fit on the site. That resulted in delay and the need to reapply for planning permission which when granted meant that the hotel would not meet 4 crown standard. The defendant’s bank eventually issued a warrant for possession and a forced sale followed. The plaintiffs claimed against the defendant the sum of £90,226.06 for work undone; the defendant’s counterclaim related to defects in design and workmanship.
Held Damages were awarded for the defendant.
1. The responsibility of the architects was the same whether they were qualified or unqualified.
2. The court accepted the evidence that no reasonable architects should have presented drawings for planning approval without accurate site information. The delay caused by the failure to take a survey was caused by the negligence of the third party, who were in breach of contract with the plaintiffs and the plaintiffs were in breach of contract with the defendant.
3. In addition to the delay, it was impossible for the defendant to have obtained 4 crown grading because of the need to reduce the floorarea to fit the site.
4. Failure to obtain 4 crown grading would inevitably affect the profitability of the proposed hotel, but the defendant was not warned of that fact and the planning permission, which had been reapplied for, was not suitable for that grading. There was no duty on the defendant to check a builder’s or architect’s plans at every stage. If one undertook an obligation to pay for plans to a certain specification, then one was entitled to expect that those plans were made to that specification.
5. Vis-a-vis the plaintiffs: the third party claimed that they had been contributorily negligent in that they ought to have checked that a survey had been made; it was common ground that the plaintiffs had the ability to make a survey. However, the plaintiffs did not owe any duty in contract or tort to the third party to ensure that the third party complied with their duty to the plaintiffs.
Stephen Powles (instructed by Church & Church) appeared for the plaintiffs; the defendant, Edward Vye Taylor, appeared in person; Fiona Sinclair (instructed by Fishburn Boxer) appeared for the third party architects.
