Cross-leases covenants and planning controls

AAS conditions of engagement require that “The Client agrees to provide the Architect with a Brief and a Budget, which clearly defines: ….. (d) all information reasonably available to the Client that relates to the Site and is reasonably necessary for the Architect to perform the Agreed Services in accordance with this Agreement.”

In many projects, the client relies on the architect to source that information. Moreover, a recent UK legal case has indicated that the architect may have a duty to review and check client-provided information rather than rely on it as provided: if the client says the fence line is the boundary, and the position is relevant to the design, then formal confirmation is necessary.

The NZRAB case:

This highlights the need for the architect to become aware of and alert the client to the potential for “issues” to arise if the boundaries are uncertain and require to be confirmed by pegging out on the site, or if cross-leases, unit titles, easements, covenants, building line restrictions or resource management controls may affect the project design. An architect is not expected to be an expert in such things, but is expected to be alert to them and provide written notice to the client requiring them to seek independent legal, surveying, or planning advice.

Achieving the impossible:

We have had recent claims where the clients insisted that the design not incur resource consent requirements, and yet their design demands make that inevitable. We suggest that if, after a preliminary or concept design confirms this is a potential sticking point, you make it very clear in writing that they either accept the restrictions and compromise their demands as necessary, or accept the risk and costs of testing their demands against the proper resource consent processes. It is not your job, as an architect, to second-guess or predict the outcome of a resource consent application, nor the costs of achieving it.