Architect made a mistake, trying to get it fixed on her insurance

mavenmim

We own a smallholding, and are having a garage-size building built in our garden under permitted development where the old outhouse used to be. The architectural designer we used to draw up the plans knew that the domestic curtilage only included the house, garden and driveway - not the wider land around them - and she knew that we did not want to do any work that would involve the planning department (as they have been very difficult to negotiate with about an extension to our house, and other matters on our site).

The rules state that a garden building does not require planning permission within various conditions about its size, height and what it will be used for. We obviously wanted to comply with all of these. However, the architectural designer messed up. She drew a pitched roof with a height under the 4m threshold, even though it sits right at the edge of the garden, forgetting that any building within 2m of the curtilage cannot be taller than 2.5m. Unfortunately, by the time we were aware of the error we had built the building to the point the tiles were about to go onto the roof, including paying a stupidly large amount of money for the central RSJ, which had to be lifted in by crane.

The architectural designer is a nice person, and she held her hands up straight away when we discovered the mistake, initially saying she would pay personally for the changes required, until we saw the scale of expense involved. I feel a bit sorry for her, as there is a £5k excess on her insurance which is more than we paid for all the work she has done for us, and she is a single mum who has only recently started a solo practice without the error-catching advantage of a team of colleagues around her. But on the other hand, we need the building to be fixed, if this ends up being a cheaper, flat-roofed design without the big RSJ we would have paid less for that than we have already paid our builder for the work he has done to date. And we have ended up with a massive extra bill for the time the scaffolding stood unused whilst the project paused.

Her insurance has in principle accepted liability and asked for a quote to rectify the issues from our builder. He got ProQuant to quote the work involved in remedying the roof, and it came out at £35k. Her insurance refused this quite bluntly. They say that his quote is too high, not itemised enough, and also want him to provide full itemised quotations of the original and final design (which seems reasonable, but he says will cost him at least £500 more than the £500 he has already paid ProQuant, which he doesn't think the insurance will repay). So he is not sure he wants the insurance work - though he would not do other work on a building that was worked on by another firm, as he does not want to end up accountable for any issues that arise after the fact if the insurance use shoddy workmen.

Oh, and whilst I have home insurance with legal cover, it only included legal advice up until August, not full legal cover, so there is a risk that they will say that the problem arose before the renewal - even though I was not aware of any issue in the design until after the new policy was active.

So my questions are:

- do I get any say in this, or is this between the architect's insurance and the builder?

- does my home insurance protect me in this scenario, or do I need to get some kind of service to represent me (loss assessor? lawyer?)

- can I insist the whole building work is done by the same company so that we have later accountability if something goes wrong?

- if the building I get in the end is worth less than I've paid, can I get the difference back on her insurance?

- is it possible to claim the costs related to the delay, like the extra cost of the scaffolding?

Sandtree

You are the claimant against the architect/their insurers and so you have a say in the matter

You insurance is unlikely to cover you as the issue arises pre-inception of the policy. To be honest I am not a fan of Legal Expenses on Home insurance anyway for actually making a claim.

You cannot force the insurer to pay the full price of your builder; however they can settle the claim in cash to you and you then add your own funds to it to cover the peace of mind of having your expensive builder.

In terms of the value.... how much have you paid so far -v- how much would it have cost if you had gone for the flat roof design from day 1? If you’ve spent £35,000 towards a £60,000 building but the flat roof version would have cost you £40,000 on day one then certainly there is nothing to be claimed, indeed there is an argument that you should pay the extra £5k to get to the total cost. If you’ve spent £55,000 then a reasonable argument for the £15k return. Their only possible counterargument would be not to look at the build cost but the property value afterwards (effectively the secondhand value) but in a build to commission type scenario this doesnt feel very reasonable.

Scaffolding, assuming it cannot be reasonably removed or removing it and putting it up again is more costly would be included in the costs above. Warranties for a number of reasons would be hard to argue.

mavenmim

Thanks for your advice.

I guess I'm wondering how I get to have my say in the matter, as nobody has contacted me (except the architectural designer verbally, and the builder copying me in on some emails) and it appears the current proposal is for the architect's insurance to pay the builder directly. I have emailed the architect to ask her to raise the issue of the total cost of the building I get being built, versus the cost I will end up paying if I just end up paying the builder's costs again after the insurance work is finished, but I have never had a response from her insurer about that.

It is a good idea for me to have the 3 quotes the insurer wants, and to see how much I have paid to date. I will also check whether the builder will be happy with us just paying the amount remaining to reach the total quote for the new design, and ensuring the insurance pays the rest. But I got the impression that the insurance is arguing even about payin the builder the cost to change from where we are to the new design and hasn't considered that this will leave me with a total expenditure greater than building the flat roof design from scratch.

mavenmim

BTW: Do I need to inform my house insurance company?

Sandtree

You have no insured loss in relation to home insurance so no need to mention it to them 

eddddy

I'd be amazed if nobody had thought of this already - but is it worth applying for planning consent for the 4m tall building?

If your local planning authority refuse consent (maybe because you are right and they have a vendetta against you) - you can appeal, and it will be decided by Planning Inspectors who aren't connected to your local planning authority.


FWIW, my local planning authority seems to be more lenient with people who have made genuine mistakes. For example, somebody's (dodgy) builder made a mistake with ground levels and built a house too tall. The planning authority suggested that they might not have given consent for the taller house originally, but felt it disproportionate to make them demolish the house and start again - so they grudgingly gave consent.


Edit to add...
I guess there's also the option of building it 4m tall - and hope that nobody notices/complains for 4 years. (Is it in a secluded area, not visible from the road?) After 4 years has passed, the council can't take enforcement action. And then you can apply for a Certificate of Lawful Development.  But obviously, that's risky.

mavenmim

We considered applying for retrospective permission, but TLDR: we've had such negative experiences of the local planning department I really didn't want to try it. 

After several years of trying to deal with them I feel utterly worn down by the way they have absolutely zero desire or ability to advise or collaborate or discuss anything in a way that leads to mutually agreeable outcomes. I say that as someone that believes in the importance of the planning system, has never had problems with works requiring planning in any other location we have lived, and genuinely wants a property that fits in with the setting and local vernacular.

eddddy

mavenmim said:

We considered applying for retrospective permission, but TLDR: we've had such negative past experiences I really didn't want to try it.

OK - but you're asking the insurers to pay out maybe £35k.

I suspect at some stage they're going to say that you must try to mitigate your losses by applying for planning consent (and appealing, if required) possibly using a planning consultant - because the cost of that might be £2k to £5k, rather than £35k.

And if that's going to take 6 months, maybe it's better to get the ball rolling sooner rather than later,

And if you instruct a planning consultant, you just sit back and leave them to it. You don't have to engage with the council planning department.

mavenmim

That's true, but delay has a cost too. We might lose our RHI claim, or have to exclude this building from the (20 years) of claim, if the work is not complete by the March deadline. And that's before the planners start slapping conditions that add extra delay and/or cost to the build process (let alone trying to interfere in everything else we are doing on site, like the repairs to our agricultural barn).

To be honest, the thought of having planning disputes and building work running an extra 6-12 months makes me want to cry, when we've been mired in that world for 4 years already.

I really need a subject expert to speak to about all of this, and to represent me at the table, as at the moment I'm only getting snatches of the conversation between insurer and builder and not being involved in the conversation. I just don't know who that would be.

Sandtree

Then you can hire a lawyer or loss assessor who will present and manage your claim for you but do so on the assumption that you’ll be paying for their time.

mavenmim

Thanks Sandtree and eddddy. Maybe I will try to get some advice from the legal advice line, or make an initial call to a loss assessor to try to understand my options.

But you are right. We could just finish the thing too tall, and apply for retrospective permission (or leave it for 4 years, as it is out of sight from the road). Or we could tell them now, and see whether they will permit it to be finished, given the mistake. Or we could reach an agreement with the architect's insurer to fix it to the lower height so the planners don't need to be involved at all.