Architects might be naive but they're not powerless when it comes to novation

If there’s one issue that causes difficulty again and again in the complex relationship between architects and developers it’s the possibility of not being novated on to a design-and-build contract after planning consent is granted.

It’s a problem that goes deep into the business of delivering property. How, architects ask, can it possibly work that a project created and nurtured through feasibility and planning by one practice – in close collaboration with their client – is delivered by another under a design-and-build contract with a completely different client – the contractor that is often appointed well after a scheme is conceived and designed?

The process causes problems for everyone involved. For the architect, other than the disappointment that comes with not seeing the project they conceived through to completion, they are typically losing up to 75% of their original fee proposal. And if their client wants to retain their name as author, it is often on a building that they don’t even recognise as the one they originally designed. For the developer the certainty that a fixed-price design-and-build contract offers is offset by the loss of continuity on the delivery of the scheme and technical control over the delivery architect – whose client becomes the contractor. On many occasions I have worked on projects where the original architect is retained on a contract by the developer as a design guardian to “oversee” the work of a delivery architect working for the contractor – at a cost to the developer.

Architects have resorted to whistleblowing to planning officers when they think a contractor is not sticking to the original consent

Even if an architect is novated on to the design-and-build contract that can have its own issues. A new client means a new relationship to build, on a project that was conceived with someone else. Technically, the duty of care is to the contractor client. But which architect, having been through the conception and birthing process, is not going to feel some kind of emotional duty of care to their original developer client, putting them in an awkward position if the brief to delivery diverges? I have listened to stories from architects who have had to resort to anonymous whistleblowing to planning officers when they think a contractor is not sticking to the letter of the planning consent that was granted to the original developer client.

It seems that the power to do anything about this is all in the hands of the developer and contractor. That architects are just powerless participants at the mercy of their clients’ hiring and firing decisions. It’s possible that architects have been naïve in this, in not arguing a strong enough case for the value they add at every stage of the design and delivery process – not just up to planning – and allowing the distinction between design and delivery architects to become entrenched (with all the consequences that Mark Middleton outlined recently on these pages).

I believe that architects have the power to speak up and change the conversation. To explain the process. To argue that continuity is essential to delivering the scheme that was originally conceived by the developer and granted consent by the local authority. To argue that changes to a scheme through delivery that undermine the original design will do nothing but negatively affect its value. I wrote recently elsewhere that architects should perhaps try to meet their clients halfway, by reforming fee structures to meet client and contractor expectations head on – show that there are some elements of delivery (technical drawings for instance) that could be priced more competitively. Howls of protest from my architect friends greeted that suggestion.

One architect demands 10% of their fee as a payment in the event of them not being novated

But the tide is changing and other players are joining the battle. A well-known architect told me this week that there is a S106 condition in the planning consent on a scheme they have designed, inserted by the local authority, that designates a fee, agreed between the architect and the planning officer, should they not be novated on to the design-and-build contract.  Applause required here for the foresight and commitment to the cause of that planning officer. This tells me that there must be an argument for a clearer conversation between architect, developer and planner in the run-up to the structuring of a design-and-build contract to find ways in which all three parties, plus the contractor, can work together to maintain the quality of delivery of a scheme.

Another architect told me that they demand 10% of their proposed fee on any scheme as a payment in the event of them not being novated. As compensation and as a hedge that it might make it unprofitable for the developer and contractor not to novate them.

In the end, the developer needs to get their priorities right, to challenge consultant project managers whose very existence is justified by cutting costs and to argue that retaining an architect throughout a project is the only way to deliver a scheme as it was originally conceived. But architects are not powerless in this process. Confidence, collaboration and clear argument can effect change.