The Persons concerned in a building contract (Case study - 001 - (26.05.22))

Updated: Jul 24


So often we are asked for what the Architects role is? I have therefore created case studies as a series of guides written by Keating Chambers from Keating on Building Contracts (7th edition) a timeless classic.

I would like to thank all the associated staff for detailing the roles of persons concerned in a building contract and especially to Stephen Furst Q.C., LL.B. (Hons) of Middle Temple, Vivian Ramsey, Q.C., M.A. (Oxon) of Middle Temple , Chartered Engineer, Member of the Institute of Civil Engineers, Special Professor, Department of Civil Engineering, University of Nottingham. Also exceptional credit must be given to Adrian Williamson, M.A, Professor John Uff, Q.C., B.Sc.(Eng.), Ph.D., C.Eng.,F.I.C.E., F.C.I.Arb. of Grays Inn, Nash professor of Engineering Law, Kings College, London and Donald Keating, Q.C.,B.A., F.C.I.Arb. of Lincoln's Inn.

I would also like to thank Sweet and Maxwell for bringing us both timeless and contemporary and critical books to enhance the scope of the building profession.


The function and roles of each profession have been given to aid the employer/client and more importantly not to confuse gaining planning permission with a guarantee of planning permission from the Architect.


The architect simply cannot guarantee planning permission as this decision ALONE, rests with the local planning authority.


The other question we are also most often asked is:-

"What are my chances of gaining planning permission?" the definitive answer is "50/50."


Well again here we may refer to how long is a piece of string and I have come across many pieces of strings and beads for that matter at www.beadsjar.co.uk especially the strings and threads sections I have found useful,

See https://www.beadsjar.co.uk/beading-thread.

The fireline beading threads are especially amazing and can also be used for fishing.....Ok folks lets get back to the Case study :)


The Employer and the contractor


The employer whose benefit the work is carried out and the contractor who must carry out the work are the principle parties to a building contract. In addition to the parties to the contract, there are usually in a large contract several other persons involved. These may include the architect or engineer, the quantity surveyor and other consultants. Although they are not parties, they may materially affect the legal relationship between the contractor and the employer. There is no requirement of the law that there shall be such persons employed in a building contract and many smaller contracts are entered into and completed without their employment.

(Keating on Building Contracts 7th edition p2 (1-03)


The Architect


The person who is engaged by the employer to carry out the duties of an architect. In the broadest sense his duties are to prepare plans and specifications and supervise the execution of the works on behalf of the employer so that they may be completed in accordance with the contract. He is therefore the agent of the employer and owes him a contractual duty of professional care, notwithstanding that the employer and contractor ordinarily contract on the understanding that many matters may arise under the contract where the architect has to make a decision in a fair and unbiased manner. A surveyor or some other person may carry out the duties and occupy the position of an architect in a building contract.

(Sutcliffe v. Thackrah) 1974. A.C. 727, HL (Keating on Building Contracts 7th edition p2/p3 (1-04)


The Engineer


In an Engineering contract the person who carries out the duties and occupies a position similar to that of an architect in a building contract is normally termed the engineer.

Note that surveyors, engineers and others may not term themselves architects unless registered under the Architects Act 1997. (Keating on Building Contracts 7th edition p2/p3 (1-05)


The quantity surveyor


The quantity surveyor is employed by or on behalf of the employer to estimate the quantities of the proposed works and set them out in the form of bills of quantities for the purposes of tender. He/she may also be employed to measure and value variations and to do such other works of measurement and valuation as the architect may require. In some cases the architect takes out his own quantities and does his own measuring of the works.

Architects Act 1997. (Keating on Building Contracts 7th edition p3/p3 (1-06)


A quantity surveyor's duties in a building contract include, "taking out in detail the measurement's and quantities from plans prepared by an architect, for the purpose of enabling builders to calculate the amount for which they would execute the plans"

Morris. J. in Taylor v. Hall (1870) I.R. 4 C.L 467 at 476. Note that the reference was to a "building surveyor", but obviously referred to a "quantity surveyor" as that term is generally understood.


His duties may also include other works of measurement such as taking measurements for the purpose of certificates and preparing a bill of variations. He is normally employed by the employer to whom he owes a duty of care.

See the implied duty in relation to the performance of other consultants considered arguable in Chesham Properties v. Bucknall Austin (1996) 82 B.L.R. 92.


The extent of his authority, which can be given in a number of ways, may derive from or be limited by the express terms of the building contract.

See John Laing v. County and district properties (1982) 23 B.L.R 1 at 13.


In some cases a quantity surveyor may be employed by the contract as, for example, where he is engaged by the contractor to take out quantities for the purposes of tender where quantities do not form part of the contract. The building contract may show that in regard to some matters he is intended to exercise his judgement fairly and professionally as between the parties.

See Sutcliffe v. Thackrah (1974) A.C. 727, HL.


Qualification or registration is not required by law before a person can practise as a quantity surveyor, but there are certain well-known professional bodies to one of which most quantity surveyors belong.


Consultants


In large building contracts, consultants other than the architect and quantity surveyor are often engaged by the employer for special purposes. There may, for instance, be a structural engineer, a mechanical and electrical engineer, an acoustics consultant or others. Their roles are often imprecisely defined in the contract, but generally their functions are more limited than those of the architect and confined to the design and supervision of those parts of the works within their special expertise.

(Keating on Building Contracts 7th edition p2/p3 (1-07)


Project manager


In some large building contracts, the employer may engage a project manager in addition to the architect and some or all of the consultants mentioned above. A project managers role is organisational, but his exact relationship with the architect, consultants, contractor and sub-contractors varies from one contract to another. Contractors also sometimes employ a person whom they call the project manager.


Clerk of works


In large building contracts, the employer may also employ a clerk of works whose functions have been described as being "the eyes and ears of the employer" on the site. Sometimes the role of the clerk of works is prescribed by the contract.


Employer's agent or representative


Where the employer chooses a contract which does not provide for an architect or engineer, the employer often appoints an agent or representative who carries out certain administrative functions and is often a qualified construction professional. The extent of the authority of the person appointed will, generally, depend on each contract.



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