Design & build contracts spell bad news, most of all for the poor blighters who buy what’s built. Design should be left to designers

Tony Bingham

Placing a contract with a builder to design and build is daft. Forever have I said so. Before I took the bar I worked with a chap called Dick Humphries. Dick was a builder: huge experience, never (well, hardly ever) did he do a duff building. He didn’t like architects very much. Too fancy by half, he said. Always coming up with new rules and reglations for doing this or that work. Oh, he obeyed these architectural specifications; shrugged, tutted but obeyed. If Dick had had his way, he would have built things as we always did; blow all these fancy ideas. Look, if he had designed and built the buildings, they would be beautifully built and completely in breach of the Defective Premises Act, unfit for habitation and Dick would have been very upset if a judge told him that. And, when over all these years in this super world of construction any one tells me that design & build contracts are the bee’s knees, I cringe. Design then build, I applaud. Builders should build. Architects should design - alongside the engineers with all those letters after their name. And if you think that the great gurus of our time, such as Latham and Banwell and Emmerson gave the thumbs-up to putting design in the hands of builders, they got it wrong. Better building is “design then build”.

The builder who takes on design has to have all the skills of an architect. Damn it, it takes seven years of training and testing before a man can call himself an architect

Come with me and look at two new blocks of flats in Concord Street, Leeds. Take a shufti on Google street map. They were marketed as “high quality apartments”, sold off plan; 171 of them. When the purchasers moved into their apartments, they were taken aback by what they found. Even the builder said they looked like council flats. Then they found problems galore. In the litigation that followed the claim was to re-build the external envelope and internal defects. That came to £14m. Snag is, the contract was between the umpteen owners and the developer. Snag, because by now that firm, City Wall Corporation Limited, was in administration. So the owners sued the builder outside of the contract under the Defective Premises Act. The design and some of the build made the apartments “unfit for human habitation”. Let me give you more background.

At the outset when the developer received the tenders for the “high quality apartments”, the price was too high for their financial resources. Another builder approached the developer with a bright idea: he would build the 171 apartments for a price that was within the developer’s budget. The process, said the builder, was that he would have a “fairly free hand to make the necessary changes to the specification”. And so it was.

So now I will tell you what the design complaints were. Remember this is the builder who is being sued for wrongful design. The complaints: inadequate insulation of the walls giving cold spots; mould on the ceilings and walls; inadequate design of partition walls; of door frames;wrongful design of party walls; cold bridging on balcony supports; wrong design of drainage to walkways; wrongful design of roof and glazing; wrongful design of leaky glazing; wrongful design to basement car park; dampness, ponding; unsafe fire escapes; unsafe mansafe system on the roof.

Don’t think for one moment that all this was cheapjack jerry-building. The use of words such as inadequate or wrongful or notions that the work was not up to snuff is always to be tested by asking who sets the standards? If it were Dick Humphries’ world, he would have happily built to design standards that he had been brought up with. In the litigation, that argument was run. But the judge said: “It is no answer to say that buildings constructed in a previous era and much sought after as dwellings were built to different standards and therefore such standards should be regarded as acceptable.” He added: “Time marches on: so do industrial and professional standards.”

That’s the nail I want to hit on the head. The builder who takes on design has to design as would a professional designer. And that means he has to have all the skills of an architect, a structural engineer, an M&E engineer and more. Get the idea? Damn it, it takes seven years to make it through the training and testing of a pupil-architect before he can call himself an architect. It’s not enough to say: “Well, I have been a builder all my life so I can design.” Stop it. Builders take on design-build contracts out of the need to get work. Then, some get an architect on board to design this bit or that bit. Subcontractors mostly do the design; they think they know what’s what because it is their specialist territory. Scrape away a little and you often find no true qualifications at all.

Ask architects and engineers if they like “mucking in” with a builder under a design-build contract and they will say no. These qualified people are and ought to be tethered to the client, and doing the specification, doing the drawings and getting the script written with no gaps before any bids are invited. And ask the builders if they like “mucking in” with the design and they will say no. Cobbler stick to thy last.

Architects design; builders build. Write the script, then perform the play.

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple