Architects too can be held criminally liable for participating in an urban development offence

In a recent decision dated 15 September 2015, the Court of Cassation dismissed a cassation appeal against a decision of the correctional division of the Court of Appeal in Ghent of 10 June 2014 in which an architect was held criminally liable for participation in an urban development offence.

On the basis of article 6.1.1, first paragraph, 1° of the Flemish Spatial Planning Codex, violations of the urban development permit are curbed under the criminal law and a penalty aggravation applies for professionals in the construction sector.

In the above-mentioned decision, the Court of Cassation decided that an architect exposes himself to criminal-law sanctions if he neglects to point out to the principal that works are being carried out that violate the urban development permit. The Court specifies in particular that "the architect, through his culpable neglect, granted such assistance to the commission of the offence that, without his assistance, it could not have been committed." For this reason, the architect too was held liable under the criminal law as an accomplice.

The above decision is yet another confirmation that architects must exercise the necessary caution in supervising the execution of the works and the conformity with the authorised construction plans and any conditions included in the permit. Moreover, one must also keep in mind that (the consequences of) criminal-law violations are not covered by the professional liability insurance.

For more information on this topic, you can consult Maarten Somers (the author) and Kristof Hectors (head of spatial planning unit).