Greater duties of care
Beware an environmental duty of care
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Beware of extending the duty of care
audacity.org opposes the attempt by the Royal Institute of British Architects to promote an environmental duty of care based on the Bruntland definition of sustainability.
In 1987 the World Commission on Environment and Development published 'Our Common Future' through the Oxford University Press. It became known as the Bruntland report after the chair, the Norwegian Labour Party president Gro Harlem Brundtland. Sustainability came to mean "...development which meets the needs of the present without compromising the ability of future generations to meet their needs."
The RIBA has promoted sustainability since David Rock's presidency in 1997, when 'Meeting the Challenge - RIBA strategy for architecture and architects 1999-2003' was published. One challenge was "…the need for sustainability in buildings and the environment - buildings contribute half the UK's carbon dioxide emissions in their production and use, architects have a responsibility to reduce this figure in the way they design and specify." Another was "…the need to limit risk - in an increasingly litigious and regulated world, clients need to know they are protected as far as possible from expensive disputes and legal actions..." The legal and regulatory implications of professing sustainable design were not explored in the document, but are a concern for audacity.org.
Succeeding
Rock as President in 1999, Marco Goldschmied publicly and repeatedly raised the
moral of an environmental duty of care to future generations to design
sustainable development. This assertion of a duty of care for architects was
not, as far as we are aware, intended to contain legal meaning. It was a phrase
that captured the moral tone of Goldschmied's presidency, and was not
theoretically developed. However architects do have a legal duty of care to
avoid injuring someone, damaging their property, or causing financial loss due
to inadequate expert advice. In the law of the tort of negligence liability
arises from acts or omissions breaching that duty of care, but the
environmental qualification added a twist. The only established legal
expression of an environmental duty of care was that in the Environmental
Protection Act, 1990, and the Environmental Protection (Duty of Care)
Regulations, 1991. These legal statutes are concerned with the handling and
disposal of waste, and Parliament never intended the environmental duty of care
they establish to have wider application to professional practice. Whereas the
inherent flexibility of the law of tort means that the duty of care may be
extended by case law in ways that Goldschmied had never thought
through.
This turn of events bothered us, and we wanted to find out what the RIBA meant by promoting an environmental duty of care. Before his election as President of the RIBA in 2001 Paul Hyett spoke at Building Audacity, the conference organised by audacity.org in July 2000. Hyett argued that ..."Marco cannot, certainly not yet, establish any direct obligation on architects through the RIBA Code of Conduct beyond a moral duty. The reasons are both political, in the sense of the politics of our profession and our members interests, and practical. By that I mean unenforceable in law." We do not believe that the law will have nothing to say on this, and that the RIBA can simply assert a moral claim without the legal profession taking them at their word. Indeed, what would it say about the architectural profession if the law did not take claims of an environmental duty of care from the leading institute seriously?
A moral duty toward the well-being of future generations could find legal expression. Professionals might be expected to avoid designing and building unsustainable development, as defined by environmental interest groups given standing in the courts. That would require the courts to stretch the test of reasonable foresight to the verge of clairvoyance, and to explode the test of close proximity. Tests that are necessarily elastic.
As Daniel Lloyd explores in 'The Popular Legal Fiction', his chapter in 'Sustaining Architecture in the Anti-Machine Age', such an uncertain legal future might follow the promotion of an environmental duty of care. It would only require the law to retreat from reason.
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