Kellie & Anor v Wheatley & Lloyd Architects Ltd

An architect must exercise the reasonable skill, care and diligence expected of an ordinary competent and skilled architect. Professional judgment remains permissible, particularly where design choices involve planning policy, site context, hierarchy of buildings and client priorities. A client’s tentative preference does not necessarily constitute a firm instruction requiring a particular design to be pursued.

Where alleged loss depends on the decision of an independent third party, causation requires proof of a real or substantial chance of that decision; the assessment of its value belongs to quantification. An architect’s continuing duty to review a design arises where circumstances give a reasonably competent architect good reason to do so, but it is not an automatic obligation to reconsider every completed aspect of a design.

The claimants engaged the defendant architects in 2004 in connection with works at Middleton Barn, including conversion of an existing garage into an annexe and construction of a new garage, car port and workshop.

The claimants alleged that the defendant negligently advised that a new building in the Border Oak style, with a pitched roof, would not obtain planning permission. They contended that the defendant should have considered permitted development rights and alternative designs, and claimed loss based on property value and construction cost.

The defendant denied breach, causation and loss, and pleaded limitation. The central issues were whether the alleged instruction had been given, whether the design advice fell below the professional standard, whether the alleged alternatives would have obtained permission and caused loss, and whether the claim was statute-barred.

1. Claim dismissed. The court found as a fact that the claimants had mentioned the Border Oak style in connection with an extension to the Barn, not the Garage. Any contrary mention concerning the Garage would have been tentative and provisional, rather than a firm instruction.
2. The applicable standard was the reasonable skill, care and diligence of an ordinary competent and skilled architect. The defendant was entitled, and required, to exercise professional judgment about design. Its advice reflected the planning officer’s views and the relevant concern that an ancillary building should remain subordinate to the principal dwelling.
3. Permitted development rights did not make planning permission for the proposed design inevitable. Engineering works were themselves subject to planning permission, and that application would properly be assessed by reference to the substantive planning merits of the development as a whole. The Garage’s size, height, position, relationship to the Barn, visual impact and effect on the orchard were material.
4. Even if a preference for the Border Oak style had been expressed, the evidence did not establish that a reasonably competent architect would have been negligent in rejecting or not pursuing that option. Aesthetic disagreement, without evidence that the design fell outside competent professional practice, was insufficient.
5. The court would also have rejected the alleged loss. The claimants had not established a sound like-for-like alternative design or reliable comparative costing. A Border Oak-style building had not been shown to enhance the Property’s value or to cost less.
6. Following Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 W.L.R. 1602, where loss depends on an independent third party, the claimant must prove a real or substantial chance of the relevant act, with the value of that chance assessed as damages. The chance of permission for the proposed design was speculative.
7. The limitation defence would have failed. Applying the continuing-duty reasoning in New Islington and Hackney Housing Association Ltd v Pollard Thomas and Edwards Ltd [2000] EWHC 43 (TCC), [2001] Lloyd’s Rep PN 243, the defendant remained under a duty to review its design while it was being developed and incorporated into the works. The claim was therefore capable of including negligent advice after the initial 2004 discussion.

First-instance decision. The court directed that outstanding matters concerning the order be considered at a further hearing and extended the time for applying for permission to appeal.