A contract document is a binding agreement between two or more persons which creates mutual rights and duties, and which is enforceable at law (Chappell and Willis 2006). Under section 3 (5) of the Building Control Act of 1990, there is an obligation that buildings should be designed and constructed in accordance with the requirements of the building regulations (Building Control Act, 1990). Architects and Clients are bound by this legal obligation. This paper aims to describe the roles and responsibilities of both client and architect in a new standard form of agreement between the Client and the Architect from the Royal Institute of Architects in Ireland (RIAI). It seeks to define their statutory duties in terms of Health and Safety and Building Control and will describe the opportunities for building a professional relationship that will be flexible for both parties.
1. INTRODUCTION
The RIAI standard form agreements between the Client and the Architect are frequently used in the Irish construction industry. It is the duty of the architects to help their clients to understand fully the terms of the client-architect agreement and the general conditions of the contract for the building construction. The client is responsible for making sure that the buildings are carried out in accordance with the requirements of the building regulations (RIAI – Client Guidance Note 2016).
This paper initially defines what it means to be a Client, and what it means to be an Architect. The paper will attempt to describe the roles and responsibilities of both the Client and Architect in a new 2017 standard form of agreement between the Client and the Architect from the RIAI. The paper will define their statutory duties under the terms of Health and Safety and under Building Control Regulations.
2. DEFINITION OF A CLIENT
The Client is the person who has commission or paid for the works and who has legal entitlement to have such works carried out on their behalf (RIAI Client Guidance Note 2016). The HSA defines a Client as “a person for whom a project is carried out, in the course or furtherance of a trade, business or undertaking, or who undertakes a project directly in the course or furtherance of such trade, business or undertaking (HSA, 2009). The Safety, Health and Welfare at Work (Construction) Regulations 2013 define a Client as a person for whom a project is carried out (SHWWCR 2013).
3. DEFINITION OF AN ARCHITECT
In short, an architect is someone who designs and models a building structure. In order for the Architect to bring this structure to a successful project, he uses a wide variety of information including technology, science, and art. An architect, as a designer, is expected to have a “reasonable” working knowledge of the legislation which affects him in the discharge of his duties as an architect (Kelvin Chia Partnership, 2004). McMahon states that an Architect is an individual who carry out design work for a construction project, including the design of temporary works which involves the specifications of that project (McMahon, 2002).
4. STATUTORY DUTIES OF THE CLIENT
4.1 Under the Building Control (Amendments) Regulations 2014 (BCAR)
With reference to the new 2017 Client – Architect agreement, the client has an obligation to appoint a competent registered professional as a Design Certifier that is if that particular project comes under the Building Control (Amendment) Regulations (BCAR) 2014. A written undertaking on a statutory form should be submitted to the Building Control Authority showing compliance. A Design Certifier must be a registered Architect, chartered engineer or a registered building surveyor and must be competent to perform the duties for that specific project (RIAI – Client Guidance Note 2016).
Where Statutory Instrument (S.I) No. 9 of 2014 of the Building Control (Amendment) Regulations applies, the client is obligated to make a separate appointment for the Assigned Certifier and comply with the requirements of the Building Control Act and Regulations as they apply to the clients which includes for the giving notices and the appointment of a suitable competent persons to design, construct and certify the works (RIAI Client/ Architect Agreement 2017). A written undertaking on a statutory form should be submitted to the Building Control Authority showing compliance.
The Assigned Certifier is appointed to inspect and certify the building works and to coordinate the certification by others including the builder. Their role does not include responsibility for the supervision of the builder (RIAI – Client Guidance Note 2016).
The client should ensure to have a replacement of the Assigned Certifier, where the Assigned Certifier withdraws from the project for whatever reason. Where this happens, the client is required under the Building Control Regulations to give notice to the Building Control Authority (BCA) of the new assignment (RIAI – Client Guidance Note 2016).
The client should provide the architect with all the information necessary to enable the design to be prepared (RIAI Client/ Architect Agreement 2017). He needs to ensure that adequate resources are made available to design, construct, inspect and certify the building project (RIAI – Client Guidance Note 2016).
The client should appoint a competent builder who agrees to comply with the requirements of S.I No. 9 of 2014 (if applicable) under a separate agreement to undertake building or other works (RIAI Client/ Architect Agreement 2017). A written undertaking on a statutory form should be submitted to the BCA showing compliance.
The client should ensure that a Fire Safety Certificate (FSC) and a Disability Access Certificate (DAC) are obtained where required (DHPCLG 2016). It is a requirement of Article 8 of these regulations that a certificate of compliance with respect to requirements under Part M of the Second Schedule of the Building Regulations (referred to as a Disability Access Certificate) shall be required in respect of all works or a building to which Part III of the Building Control Regulations 1997 applies i.e. all buildings currently requiring a Fire Safety Certificate (DLRCOCO 2017). An application for a DAC and FSC shall be made to the BCA on the prescribed form (DHPCLG 2016). See appendix 2 – Sample application forms for DAC and FSC from DLRCOCO.
The client should sign a commencement notice (or 7-day notice) that is lodged (DHPCLG 2016). The client is obligated to submit a commencement notice to the BCA at least not more than 28 days and not less than 14 days before the commencement of works. Once the commencement notice is approved by the BCA, works must commence on site within the 28 day period. Any works which doesn’t require a FSC are exempted from the requirement of a commencement notice.
4.2 Under the Health, Safety and Welfare at Work (Construction) Regulations
2013
The client has a statutory role to appoint, in writing before design work starts, a PSDP under the Health, Safety and Welfare at Work (Construction) (amendment) Regulations 2013, where appropriate, who has adequate training, knowledge, experience, and resources, and shall obtain a written confirmation of acceptance. This appointment will ensure that safety has been taken into account for the whole project. The PSDP’s responsibility is to prepare a Health and Safety Plan, in accordance with regulation 12 of the Safety, Health and Welfare at Work (Construction) Regulations, 2006.
The Client has a statutory role to provide a copy of the safety and health plan prepared by the PSDP, under Regulation 12, to every person tendering for the project (HSA 2006). The main function of the Safety and Health Plan is to identify any anticipated risks associated with the building project. The plan identifies hazards, which have been established during the design process, it gives an indication but does not offer a full account of the hazards associated with the construction stage. All foreseeable risks should be designed out as far as is reasonably practicable, during the design process. Residual risks are identified in this preliminary Health and Safety Plan.
Under regulation 8, the Client has a statutory role to keep a safety file for inspection by any person who may need information in the file for the purpose of compliance by that person with any duties imposed under the relevant statutory provisions (HSA 2006). The safety file is a document produced during construction but it is intended mainly for the safety of end users of the building or those who will maintain the building in the future.
The client has a statutory role to appoint, in writing before construction begins, a PSCS who has adequate training, knowledge, experience, and resources, and shall obtain a written confirmation of acceptance (HSA, 2006). The appointment will last until all work is complete on site. The PSCS fulfils a safety role under the legislation and is responsible for coordinating safety during the construction of a project. The responsibilities include the implementation of safe working procedures outlined in the Safety and Health Plans and coordinating construction work so as to be carried out with due attention to the safety of all site workers and members of the public whose safety and health may be directly affected by the construction activities (HSA 2009).
Regulation 6 of the Construction regulations 2006 exempts the client from the need to appoint in writing the PSDP and the PSCS if the project is for construction work such as renovations, repairs or modification, or the construction of their own domestic dwelling or any construction work that is not for the purpose of trade, business, or undertaking after the completion, although all safety and health arrangements should be put in place for the project.
The client should notify the Health and Safety Authority (HSA) about the project at design stage and then the PSCS should notify the HSA if the construction will likely take more than 500 person days or 30 working days (HSA 2006). See figure 1 below.
Figure 1 – Notification to the Health and Safety Authority required? (HSA 2006)
The Client has a duty to cooperate with the PSDP and PSCS in providing relevant safety information for a construction project. This information should be provided at the start of the design process. This information can then be assessed and considered during the design process and issued to tenderers prior to assessment and appointment of the PSCS and Contractor (HSA 2005).
5 STATUTORY DUTIES OF THE ARCHITECT
The RIAI – Architects Code of Conduct, 2013 states that Architects, when undertaking an architectural commission shall, as soon as is reasonably practicable, confirm in writing to the client (RIAI – Architects Code of Conduct, 2013):
• The scope of the professional services to be provided.
• The fee or the method of calculating fees.
• Description and allocation of the responsibilities of client, architect and other consultants.
• Any limitations of responsibilities.
• Payments stages and terms of payment.
• Provisions for termination.
• Any special or unusual factors.
• Information on dispute resolution procedures.
• Projected timescales for delivery of stages of the service.
• The target or other cost limit for the project, work or services.
• The essential requirements of the project and any special circumstances and conditions relevant to the commission.
It is the duty of the architect to tell the clients what they need to hear, whether or not clients want to hear or decide to follow such advice. Fisher, 2010, suggest that the architects role is not only to advice the client what its budget will likely allow but also to show how the client might achieve as much as possible, making more for less (Fisher, 2010).
5.1 Under the Building Control (Amendments) Regulations 2014 (BCAR)
The architect will exercise reasonable skill and care on the project in accordance with the normal standards of the architect's profession, and will provide the client with the services agreed (DHPCLG 2016).
It is the Architects duty to advise the client on the need to appoint a Design Certifier and an Assigned Certifier under the Building Control Act (for projects to which S.I. No.9 of 2014 of Building Control (Amendment) Regulations applies) if appropriate (DHPCLG 2016). The RIAI recommends that the appointment of an Assigned Certifier should always be an appointment separate from that as Architect and with a separate fee.
It is the Architects duty to advise the client on the 'opt-out' provisions of S.I.365 of the Building Control (Amendment) (No.2) Regulations 2015. It is a requirement that all building projects should comply with the building regulations. But there are some limited exceptions where S.I 365 is used. This was introduced by the Irish Government as a supplementary Statutory Instrument (S.I 365). These are single domestic extensions with not more than 40sqm floor area and certain alterations or refurbishments for which fire certificate is not required. S.I. 365 allows clients to opt out of S.I. 9 using Statutory Certificate, for one off houses or domestic extension greater than 40sqm (RIAI Client Guidance Note 2016).
The Architect should work with the client to establish the brief for the project, to include discussion of client's wishes as to accommodation, quality, cost and time. McDonnell and Lloyd (2014) suggest that during the design process, aside from formal meetings between architects, clients and other stakeholders, it is common in some architectural practices for architects to spend time with building users in the environments they currently use. They go on to quote Penoyre and Prasad Architects who describe this as their routine part of their design process.
The Architect should discuss with the client the scope of services, charges and content of Client-Architect agreement (RIAI – Architects Code of Conduct, 2013). It is important for the Architects to educate the clients early in order to make them understand the architect's roles and responsibilities on a construction project. The responsibility for affording what a client wants lies with the client and not with the Architect (Fisher 2010).
The Architect should agree communication methods, and person authorised to give client instructions to the architect. Norouzi et al. (2015) suggest that even though the client is pivotal in the design process they often do not understand design processes and are unaware of what information they need to pass on to the design team.
The Architect should administer the building contract as the client's agent, while acting impartially between the client and builder.
5.2 Under the Health, Safety and Welfare at Work (Construction) Regulations
2013
According to HSA (2013), the Architect should take into account the general principles of prevention as per schedule shown in Appendix 1 of the Safety, Health and Welfare at Work (Construction) Regulations 2013, and any relevant safety and health plan, and safety file when preparing the design.
The Architect should provide in writing to the PSDP all relevant information necessary for the project supervisor to carry out the project supervisor’s duties under these Regulations (SHWWCR 2013).
The Architect should co-operate with the project supervisor for the design process or the project supervisor for the construction stage, as appropriate, to enable that project supervisor to comply with these Regulations (SHWWCR 2013).
The Architect should co-operate with other designers, as appropriate, to enable them to comply with these Regulations in relation to the project.
6.0 OPPORTUNITIES FOR BUILDING A PROFESSIONAL RELATIONSHIP THAT WILL BE FLEXIBLE FOR BOTH PARTIES.
The client briefing at the start of the project is the most important as this will let the client know that they now have legal duties and that they could have an action taken against them if they fail to comply with their duties. Arranging meetings between the Architect and the client are one way of building a professional relationship at each stage in the design process and will help to quickly find solutions to any problems that may arise during the construction period. These meetings allow the architect and the client to collaborate as equals and all decisions made will satisfy all parties. Selldorf (2017) outlined that one of the most rewarding aspects of being an architect is the collaborative nature of the work. People who have their own ideas and are interested in exchange and dialogue usually make the best clients (Selldorf, 2017).
Another opportunity to build a professional relationship between the architect and the client is to understand each other’s agendas. Lewis (1998) suggests that for a client-architect marriage to last, both client and architect must work hard not only to understand each other's agendas, but also to merge them. Without shared purpose and vision, the collaboration is unlikely to produce exemplary architecture, no matter how talented the architect (Lewis, 1998).
Most of the times clients experience project difficulties due to the complexity of the design and sometimes due to their lack of understanding of construction issues. Siva and London (2012) suggest that a successful architect-client relationships are characterised by client learning, and that over the course of the relationships, architects supported clients to learn new skills, helping them overcome difficulties faced on projects. During the construction period the clients will gradually familiarise themselves with the construction processes and their knowledge will increase. Siva and London (2012) states that ‘the education of the client is a fundamental component of the successful client-architect relationship’ (Siva & London, 2012).
7.0 CONCLUSIONS
This paper have described the roles and responsibilities of both client and architect in a new 2017 standard form of agreement between the Client and the Architect from the RIAI. Then, it attempted to define their statutory duties in terms of Health and Safety and Building Control. Furthermore this paper has described the opportunities for building a professional relationship that will be flexible for both the architect and the client.
The roles and responsibilities of both client and architect in a new 2017 standard form of agreement between the Client and the Architect will facilitate the flow of information and knowledge between clients and architects, which will either bridge or exploit the gap between the architect and the client and consequently improve the construction industry. In this context the roles of the architect and the client have a strong effect on developing the project from conception stage to completion stage.
This paper has also identified the opportunities for building a professional relationship that will be flexible for both the architect and the client. Understanding of each other’s agenda should be dealt with at the beginning of the project. Frequent meetings between the Architect and the client should be facilitated at each stage in the design process. This will help to quickly find solutions to any problems that may arise during the construction period.