# Architects specifying brands



## seantheman (23 Feb 2011)

I've noticed on a lot of house plans lately,that architects are specifying certain brands eg Xtratherm, Kooltherm without adding (or similar rated product) I feel that this leaves the plan design element open to corruption.Thoughts please


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## Mommah (23 Feb 2011)

Well in order to compare prices fairly I presume these things need to be standardised.
Sometimes the builder has a cheaper perhaps lower quality product in mind but the architect has a particular qaulity that s/he is happy with.

I'm sure once the tenders are in the builder can make suggestions on cheaper products that might work out fine.


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## Docarch (23 Feb 2011)

seantheman said:


> I feel that this leaves the plan design element open to corruption.


 
In what way?


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## seantheman (23 Feb 2011)

Docarch said:


> In what way?


 
In it's simplest form, Here's €1000 if you specify our brand on your next 5 drawings


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## Docarch (23 Feb 2011)

seantheman said:


> In it's simplest form, Here's €1000 if you secify our brand on your next 5 drawings


 
I wish!


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## Shane007 (23 Feb 2011)

seantheman said:


> I've noticed on a lot of house plans lately,that architects are specifying certain brands eg Xtratherm, Kooltherm without adding (or similar rated product) I feel that this leaves the plan design element open to corruption.Thoughts please


 
I would have thought they are specifying particular brands because of their known quality and performance, rather than for personal gain. They should usually state a particular brand "or similar". This way the client is getting a known performance and not leaving it to the builder/installer to install the cheapest, which is normally not best.

In your example of Xtratherm & Kooltherm, they are both well established brands with tried and tested results for both reliability and quality. I am sure you can find alternative cheaper brands on the market that may or may not have the same results, but these will be good benchmarks to work from. 

You will also find that the brands that are specified may have Irish Agrément Certification, whilst many others may not. This certification gives an independent review and test of the product under given parameters and ensures the product will do as it says on the tin, sort of speak.


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## onq (24 Feb 2011)

+1 what Shane007 has posted.

I agree with the OP in that it is a far cry from the more circumspect specification writing of yore and you're wonder "Why is that?"

One reason may be to copperfasten client or end use commitment to a standard.
A particular high performance board may come with proprietary details and the archtiect has budgeted for thsi level of support at tender stage and goign to site.

Doing all the details from scratch would be an extra cost and looking for once off elements to return around window opes will cost more.

One downside of including too much detail in a package is that it may affect value for money review for the client, to his detriment.

Another is that unless you build exactly what's called up, technically you could be in breach of the planning permission.

ONQ.

  [broken link removed]

  All advice on AAM is remote from the situation and cannot be relied          upon    as a defence or support - in and of itself - should legal      action     be    taken.
  Competent legal and building professionals should be asked to advise  in            Real Life with rights to inspect and issue reports on the      matters    at     hand.


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## seantheman (24 Feb 2011)

Shane007 said:


> They should usually state a particular brand "or similar".


 
This is my gripe.I have no problem with Brand x (or similar rated product) being used. It's when a particular brand name is specified.Take for example if Kooltherm K3 50mm floorboard is spec'd, You could lay TF70 100mm for the same price and end up with far greater thermal qualities


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## Superman (24 Feb 2011)

> This is my gripe.I have no problem with Brand x (or similar rated product) being used. It's when a particular brand name is specified.Take for example if Kooltherm K3 50mm floorboard is spec'd, You could lay TF70 100mm for the same price and end up with far greater thermal qualities


The "or similar" is generally written as "or similar and approved" - it is not for the builder to wander off and say "ah sure this is good enough, they'll never notice the difference". As a term, it would be implied in any case. There needs to be a single point of responsibility for this type of thing because the reason it was specified in the first place may not be the usual reason for installing it.
(e.g. in the example above if the architect specifically wanted 50mm of insulation for some reason - due to height constraints for example)

The government form of contracts for example do not allow specification of brands - (because of EU procurement law). Nevertheless people do this - try specifying a "reasonably good quality carpet" or door handles or a heating system without referring to a brand.  It can literally run to hundreds of words and gets very tedious for everyone (even the person trying to figure out the various dimensions, standards etc. that would be used to describe the standards a given product reaches.



> Another is that unless you build exactly what's called up, technically you could be in breach of the planning permission.


That's not true - there have been obiter dicta by some judges on this point, I think they are mentioned in Keane's book.  Planning Law doesn't concern itself with minutiae. 

The only thing I have ever seen an architect getting out of specifying a given product are some pens, scale rulers and back in the heady days of mid 2000's the annual trip to the factory/showroom along with a meal afterwards.


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## onq (24 Feb 2011)

Superman said:


> That's not true - there have been obiter dicta by some judges on this point, I think they are mentioned in Keane's book.  Planning Law doesn't concern itself with minutiae.
> 
> The only thing I have ever seen an architect getting out of specifying a given product are some pens, scale rulers and back in the heady days of mid 2000's the annual trip to the factory/showroom along with a meal afterwards.



I posted:

_"...technically you could be in breach of the planning permission."_
I used the term "could be" - not "would be" or "are" or other statement of fact.
What I posted therefore cannot be true or untrue.

The phrase you are relying on to suggest this is De Minimis Non Curat Lex and it has been interpreted as "the law does not concern itself with trifles". 

This may be poor advice to give in relation to any matter in Irish law, where people argue over the position of a fence and appeals have been taken for nothing more than the fact that someone could.
Regrdess of that fact, the planning drawings, together with other statutory approval documentation are the basis for any legal contract to build - failure to allow sufficient flexibility is possibly a fatal flaw.
Obviously it holds its attraction for the weaker characters in professional practice who are simply ignorant or incapable of defending their choice of construction or material, but this lessens how flexible you could be for a reasonable client who wants to vary something.


In general therefore, specifying anything more than the materials necessary to achieve a valid permission should be avoided, in order to allow flexibility in addressing matters or constuction under the Building Control Act and professional construction advices including the use of new csontruction details, disciplines and materials.
Specifications in planning law will normally relate to the finishes of the building and may go into great detail in relation to RAL colours for finished surface for example - these are issues affecting the public domain.
It is unwise in my opinion, even to call up construction details of main structural elements unless reqested by the planning officer in the public interest for for hsi own purposes because they are more properly dealt with under the Building Regulations or engineering or building phisics solutions that are normally beyond the remit of the planning acts.

ONQ.

  [broken link removed]

  All advice on AAM is remote from the situation and cannot be relied           upon    as a defence or support - in and of itself - should legal       action     be    taken.
  Competent legal and building professionals should be asked to advise   in            Real Life with rights to inspect and issue reports on the       matters    at     hand


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## Superman (24 Feb 2011)

onq said:


> The phrase you are relying on to suggest this is ...


No, I am relying on obiter dicta by Barron J in the Supreme Court decision of Smyth v Colgan [1999] 1 IR 548.



> This may be poor advice to give in relation to any matter in Irish law, where people argue over the position of a fence and appeals have been taken for nothing more than the fact that someone could.


You should tell that to the honourable judge.


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## onq (24 Feb 2011)

Cannot seem to find it on Google

http://www.bailii.org/ie/cases/IESC/1999/
[broken link removed]

Could you point to the case? Sometimes these cases are awkward to find in full

Also anything you might have or could point to regarding a case called Horne vs Freeney.

Ir that latter regard the honourable Judge might want to re-read some seminal work which  suggests the permission is a matter that is whole and indivisable.

_"In Horne v Freeney(1982/60MCA) the court took the view that planning  permission is indivisible, that it authorises the carrying out of the  totality of the works for which approval has been granted and not some  of them only, and that a developer cannot at his election implement a  part only of the approved plans as no approval is given for the part as  distinct from the whole. This is of course is perfectlly logical and  results in complete transparency as to what is the 'permitted  development'.   "_ - anon

Ergo if you do vary something you have specified in your permission you could be in breach of the permission.
This applies to interstitial materials involved in the contruction as much as to materials visually apparent from the public domain.
During the last two decades, certainly in the Dublin region permissions became increasingly more specific in relation to colours, brickwork and fenestration

While I accept the "De Minimis" argument in principle, MY principle is that too much information in planning drawings which form the basis of compliant works are a shackle that can be done without.
The logical inference of including something in a drawing is that it is intended to be built that way, and while I accept a court may EVENTUALLY find in favour of the De Minimis argument, it could be a very expensive vindication, whereas an act of omission of unnecessary information deals with the matter simply.
Normally the issue would not have arisen even five years ago, but nowadays clients are far more technically savvy in relation to particular forms of insulation, and theire selection of materials may not be solely informed by their u-value, but also their method of construction, longevity in use, fall off in performance, off-gassing, carbon footprint, cradle to cradle history, etc.

ONQ.

   [broken link removed]

   All advice on AAM is remote from the situation and cannot be relied            upon    as a defence or support - in and of itself - should  legal       action     be    taken.
   Competent legal and building professionals should be asked to advise    in            Real Life with rights to inspect and issue reports on the        matters    at     hand


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## Superman (24 Feb 2011)

It is available on justis.com - You need a subscription.
I suspect it is also available on lexis nexis.



> Ir that latter regard the honourable Judge might want to re-read some seminal work which suggests the permission is a matter that is whole and indivisable.
> 
> "In Horne v Freeney(1982/60MCA) the court took the view that planning permission is indivisible, that it authorises the carrying out of the totality of the works for which approval has been granted and not some of them only, and that a developer cannot at his election implement a part only of the approved plans as no approval is given for the part as distinct from the whole. This is of course is perfectlly logical and results in complete transparency as to what is the 'permitted development'. " - anon
> 
> ...


Barron J was in the Supreme Court, Murphy J (in Horne v Freeney) was speaking from the High Court.

In any case, it appears that the respondent in Horne v Freeney decided to put what had been permitted on the ground floor of his premises on the first floor, to omit a toilet and to install office cells instead of open plan on the ground floor. This weakens the authority of the decision regarding specification of materials in a drawing for Permission.

I would also note that that decision was made before the introduction of the Building Regulations and the the Building Control Act - which I would argue was at least one of the reasons for Murphy J to be wary in this instance (in that the Building Control Act gives a degree of control to the authorities that the Planning Act does not).

This issue regarding materials should also be distinguished from the issue of a particular local authority requiring highly specific information for materials  - necessitated due to conservation concerns or due to particular sensitive planning concerns (e.g. the exact finishing material for a large skyscraper).


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## onq (24 Feb 2011)

Print the cases in full if you are in a position to do so Superman.
Others reading this will no doubt benefit from reading pertinent precedent.
Otherwise we could stop referring to them and simply argue from certain knowledge.

With this in mind I offer the following comment.

=====================

The judges were speaking on two different cases, on separate points of planning law at different times.

Murphy J in relation to regulation could have made any order of the  court that was not arbitrary and unreasonable - he didn't need to  bolster planning law.

Planning use is granted for a particular location and cannot be relocated - shops cannot appear at roof level.
Murphy J couldn't ignore Section 4 (1) (g) of the Act, which allowed for internal changes but not relocation of use AFAIK.
Murphy J was aware of the Building Bye Laws, which operated in Dublin  and Dun Laoghaire at that time and had done since the 1940's.
Murphy J would also have been mindful of the Fire Services Act 1981  which operated throughout the jurisdiction in the aftermath of the  Stardust Disaster.
He would certainly have been aware of the the increasingly visible public role of the Fire  Officers against cavalier landlords and developers carrying out unauthorssed development.

=====================

My relatively straightforward point is this:

If something is called up on  the drawings or included in the documentation lodged in support of a planning  application, it is a statement of intent - it is what you intend to build.

This intention is what is referred to in the standard Condition One wording:

"1. The Development is to be carried out in accordance with the plans  and particulars lodged with the application, save as may be amended by  the requirements of the conditions as set out hereunder."

Or words to that effect.

It you elect to construct a part of a permission and not do other parts you cannot claim compliance.
Whether or not a Supreme Court Judge decides to ignore it, you are in breach of the planning permission.

It is incumbent on the applicant to seek a revised application, regularising matters under the planning and development Acts.
Inconvenient though this may be to some clients, it is not good practice  to ignore such breaches when issuing Opinions of Compliance.

ONQ.

    [broken link removed]

    All advice on AAM is remote from the situation and cannot be relied             upon    as a defence or support - in and of itself - should   legal       action     be    taken.
    Competent legal and building professionals should be asked to advise     in            Real Life with rights to inspect and issue reports on  the        matters    at     hand


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## seantheman (24 Feb 2011)

When you two are finished comparing the size of your d**** maybe we could get back on track here.


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## onq (24 Feb 2011)

I very seldom get the chance to ask someone as knowledgeable as SUperman about Planning Law.
Its one of the perks of posting to AAM that I get to ask the occassional question myself.

In this thread we've traversed


 Branding
 Case Law
 Corruption
 Compliance
 Maybe I should charge for my services, that way you'd appreciate it more. 


ONQ.

    [broken link removed]

    All advice on AAM is remote from the situation and cannot be relied              upon    as a defence or support - in and of itself - should    legal       action     be    taken.
    Competent legal and building professionals should be asked to advise      in            Real Life with rights to inspect and issue reports on   the        matters    at     hand


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## Bronte (25 Feb 2011)

For the life of me I cannot figure out how a simple post ended up with two people debating case law.  


If I had plans and it recommended a particular product I wouldn't have a problem with that.  That way I could ask what is it, is it the best, the most cost effective, the most efficient, if I pay more will I get a better product.  I presume the products referred to are some kind of insulation and most people wouldn't know the name of the products but could with those names ask their plumber/builder/builder's providers.  At least with a product name you have a definite starting point.  Can't see where naming a product on the plans would lead to corruption.


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## Sconhome (25 Feb 2011)

seantheman said:


> I've noticed on a lot of house plans lately,that architects are specifying certain brands eg Xtratherm, Kooltherm without adding (or similar rated product) I feel that this leaves the plan design element open to corruption.Thoughts please



Architects have to identify some level of minimum standards on drawings in order to even out the tendering process.

If it simply states "floor insulation" you could end up with a wildly varying tender result. By identifying the ideal standard it leaves the builder the option of qualifying a cheaper product or suggesting an alternative thickness etc of a better product.

If a builder wins the contract on price and rocks up with ACME insulation when Xtratherm was specified then there is a case of building sub standard and the architect can enforce the minimum standards.

ONQ & Superman can have their own thread which could be interesting reading come bedtime for some


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## Superman (25 Feb 2011)

onq said:


> The judges were speaking on two different cases, on separate points of planning law at different time.


Indeed - and Murphy J was referring to relatively substantial changes to a permission in an environment where Building Regulations did not exist. Reducing the relevance of the authority.


> Murphy J in relation to regulation could have made any order of the  court that was not arbitrary and unreasonable - he didn't need to  bolster planning law.
> 
> Planning use is granted for a particular location and cannot be relocated - shops cannot appear at roof level.
> Murphy J couldn't ignore Section 4 (1) (g) of the Act, which allowed for internal changes but not relocation of use AFAIK.
> ...


I don't see the relevance of this.



> It you elect to construct a part of a permission and not do other parts you cannot claim compliance.
> Whether or not a Supreme Court Judge decides to ignore it, you are in breach of the planning permission.


You don't see to grasp that Barron J has given the most relevant interpretation of law on the matter available - effectively he makes the law (google judge made law). If he says "meh" - then "meh" is the correct attitude to take.

In any case, most architects only sign off on "substantial" compliance.

(I'll avoid adding more on this thread as this is now fully off topic and the OP has been answered).


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## Bronte (25 Feb 2011)

Sconhome said:


> ONQ & Superman can have their own thread which could be interesting reading come bedtime for some


 
Unfortunately it looks like they are going to do just that


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