a place for the law in architectural studies

A place for the law in architectural studies

John Cooke, School of Architecture, University of New South Wales,

Sydney 2052, Australia

Some exposure to a system which regards consistent methods of reasoning

as important is potentially beneficial in its own right to architecture

students. In addition, at least one design programme which requires a

considered response to municipal design controls is a useful preparation for

practice in which architects' designs are routinely required to withstand

scrutiny in design review procedures. (~ 1997 Elsevier Science Ltd.

Keywords: law, aesthetics, architectural design, design education

1 Abstracted in GropJus, W The New Architecture and the Bauhaus (transl. P Morton Shand) Faber and Faber, Lon- don, UK (1935) Lop 35ff 2 Huxley, A Antic hay Chatto & Windus, London, UK (1!)23) 3 Ibid pp 28-29 4 wo~, T From Bauhaus to our house Farrar Straus Gimux, New York (1981) p31

'

ELSEVIER

I n 1923, the year in which Walter Gropius published an essay entitled

'Idee und Aufbau des Staatlichen Bauhauses' (The conception and

realisation of the Bauhaus) 1 Aldous Huxley's Antic hay 2 appeared.

Huxley's architect character, Gumbril Senior, complains of the need for

the 'horrible jostling with clients and builders and contractors and people,

before one can get anything done'. He contrasts the sometimes distasteful

necessities of architectural practice with his friend Porteous's line of

business (the translation of Latin poetry) which 'can be carried on by

oneself, without collaboration. There's no need to appeal to any one

outside oneself, or to have dealings with other people at all if one doesn't

want to'. His business is architecture, he says, not dealing with people 3.

Gumbril Senior's escape from the horrors of architectural practice is to an

upper room which, in a well ordered house should have been the best

bedroom. There, consoling himself with the thought that his talent and

imagination remain, he works on his vast collection of architectural

models. Working in a make-believe architectural world is, ironically, an

antidote to Gumbril's daytime work, then the design of model cottages for

workmen at Bletchley, supposedly a rewarding activity for an early

modernist, as exemplified by the housing colony of working-class dwell-

ings at Dessau and the Weissenhofsiedlung at Stuttgart (1927), part of the second exposition of the Deutscher Werkbund described by Tom Wolfe as a 'world's fair of worker housing '4.

Practising architects are in the business of dealing with people. Conse-

0142-694X/97 $17.00 Design Studies 18 (1997) 101-112 PII: S0142-694X(96)00014-2 101 (~) 1997 Elsevier Science Ltd Printed in Great Britain All rights reserved

quently, they need to be aware of the legal framework in which practice

takes place in order to protect their clients' interests and, by so doing, to

reduce their own legal risks. Those risks have certainly not diminished

since Aldous Huxley wrote Antic hay z. The teaching of legal aspects of

practice to architecture students can, therefore, be justified as forming

part of a base of knowledge on which postgraduates will be able to build

when preparing themselves for their professional examinations and the

harsh realities of practice in a world of potential litigants and their

ingenious lawyers. But it can do more than that. A major practice issue

for the Gumbril of today is the extent to which the design process is

dominated by the prospect of design review by consent authorities, and

government appointed inspectors (England), review boards (USA), and

planning appeal courts and tribunals (Australia). Inevitably, a good deal

of the jostling of the architects of today, who may like to think that their

business is architecture, is a result of design review. How horrible this is

depends partly on the willingness of architects to come to terms with

design review procedures.

In view of the importance of design review as a determinant of architectu-

ral design there is a strong case for the inclusion of some grounding in the

legal basis of design review in architectural courses, either in its own right

or as background to a design studio project in which the programme

requires students to deal with the whole gamut of statutory controls for a

site, including design review based on an evaluation of stylistic character

and the harmony of design proposals with streetscapes or landscapes. In

the present writer's view the studio should encourage a design process

based on a positive response to the realities of municipal control by lay

committees rather than a posture of defensive post hoc justification of

designs which makes little attempt to accommodate the realities of design

review. The design studio can provide a forum in which students may

begin to develop methodical design processes, an approach to architectu-

ral and urban design which balances respect for precedent with innova-

tion, and hence the ability to defend design decisions against attack in the

sometimes hostile environment of design review.

1 Precedents in law and urban design Lawyers are trained to pursue their clients' objectives within a framework

of law and to argue a case by reference to a body of statutes and case-law precedents. An argument for or against a particular point of view follows

paths familiar to all lawyers: applicable statutes and case-law are found;

then the application of the law to the facts at issue is considered. The meaning of words is determined in accordance with accepted rules. In

cases of statutory interpretation the meaning is determined by reference

102 Design Studies Vol 18 No 1 January 1997

5 Allen, C K Law in ~'e making Clarendon Press, Oxford, UK (1964) p 307 6 Ibid 7 Frampton, K 'The generic street as a continuous I:,uiR form', in S Anderson On streets, MIT Press, Cambridge, MA (1978) p335 8 Panerai, P, Depaule, J C, De- morgon, M and Veyrs,nche, M. Eldments d'Analyse Umaine Arc- hives d'Architecture Moderne, Brussels, Belgium (198,:)) p 12 9 Norburg.,Schulz, C Architec- ture: meaning and platte Electa/ Rizzoli, New York, NY (1988) p17 10 Groplus, W op. cit. n 1 p 80

to previous judicial pronouncements on the point, with decisions of

superior courts binding on lower courts.

As far as case-law is concerned, a lawyer preparing a case for trial will

search for relevant precedents. If no precedent exactly fits, the accepted

legal techniques are to show by analogy with precedents how the case

should be decided, or to distinguish between the facts of the case in

question and the facts of the case being considered as a possible precedent

to show why the putative precedent does not apply. If no precedent

applies the argument will be based on general legal principles distilled

from case-law.

Thorough case preparation includes paying proper attention to the task of

predicting and countering, if possible, the opposing arguments. A well

advised client will be aware of the strengths and weaknesses of a case, and

accordingly whether to mount a defence, to make a counter-claim against

the plaintiff or to join another party in the proceedings as a cross-

defendant.

Lawyers have a common language and litigation lawyers construct their

pleadings from a given body of knowledge using agreed techniques of

construction and reasoning. The evolution of the common law occurs

through a process in which a judge applies a precedent or precedents to

the facts of a case, or in a case of 'first impression' Where no precedent

applies, reaches a decision not on precedent but on principle 5. In Allen's

words in Law in the making,

The difference [between a case in which the judge applies a precedent and a case of

first impression] is that in the one case he is applying a principle illustrated by

previous examples, in the other case he is applying a principle not previously

formulated, but consonant with the whole doctrine of law and justice 6 .

In contrast, the early modernist architects advocated a tabula rasa

approach to architecture and urban planning 7-9. The public, by example,

was to be taught to see the benefits of an architecture freed from the

trappings of bourgeois historicism. Every design was to be, in effect,

treated as a case of first impression. In The New Architecture and the

Bauhaus 1 Gropius stated that the New Architecture was 'nowhere and in

no sense in opposition to "Tradition" properly so-called'. But 'Respect for

Tradition' meant

The preservation of essentials in the process of striving to get at what lies at the

back of all materials and every technique, by giving semblance to the one with the

intelligent aid of the other m.

Law in architectural studies 103

11 Ibid p 18 12 Venturl, R Complexity and contradiction in architecture The Museum of Modern Art, New York, NY (1966) p 13 13 Groplus, W Rebuilding our communities Paul Theobold, Chi- cago, IL (1945) p 50 14 Gropius, W Apollo in the democracy McGraw-Hill, New York (1968) pp 81-82 15 Brolln, BC The failure of modem architecture Van Nos- trend Reinhold, New York (1976) 16 Krler, R Architectural COm- position, Rizzoli, New York, NY (1988) 17 Ash, M The crisis in planning Town and Country Planning Association, London, UK (1977) 18 Ventud, R op. cit. n 10 p 15

In pursuing this line, modern architects did not merely apply design

principles which were consonant with a whole body of accepted

architectural and urban design solutions. Modernism set out to establish a

new context by which future work would be judged. To the architects of

the modern movement, historical references to surrounding buildings

were irrelevant. This was to be an architecture based on logic, not on

stylistic whim. Harmonious surroundings would come from a wholesale

replacement of existing buildings with buildings of the New Architecture.

To Gropius it was inevitable that this would occur

It is now becoming widely recognised that although the outward forms of the New

Architecture differ fundamentally in an organic sense from those of the old, they

are not the personal whims of a handful of architects avid for innovation at all cost,

but Simply the inevitable logical product of the intellectual, social and technical

conditions of our age l~.

Perhaps the most extreme manifestation of the tabula rasa attitude to

urban design was Le Corbusier's drastic Plan Voisin urban regeneration

scheme for Paris which required the demolition and replacement with

cruciform glass towers of a large part of the old city north of the Seine. Le

Corbusier's scheme was never realized. Instead, in most major cities

demolition of urban fabric and rebuilding in international style brought, in

the words of Vincent Scully in his introduction to Venturi 's Complexity

and contradiction in architecture 12

the cataclysmic purism of contemporary urban renewal which has presently brought

so many cities to the brink of catastrophe, and in which Le Corbusier's ideas have

now found terrifying vulgarisation.

Gropius admitted, in a lecture in 1945, that developing new community

structures within the old cities presented difficulties. The experience

gained from the planning of neighbourhood units in the open country -

' the initial process of reconstruction' - would bear on the problem, he

said 13. Later, he conceded that 'significant and venerable landmarks

should, of course, be incorporated into the growing city pattern as far as

possible '14. The failings of modernism have been well documented 15-17

and the point will not be laboured here. Suffice it to say that, with the

benefit of hindsight, it is clear that the products of modernism and the

international style tended to lack the subtlety of response to human needs

experienced in successful townscapes. In his introduction to Venturi 's

Complexity and contradiction in architecture, Scully wrote of ' the more

academic-minded of the Bauhaus generation - with its utter lack of irony,

its spinsterish disdain for the popular culture but shaky grasp on any

other, its incapacity to deal with monumental scale, its lip-service to

technology, and its preoccupation with a rather prissy purist aesthetic '18.


At least the theories of the modern movement gave strong guidance to

architects. Postmodernism, on the other hand, lacked the clear, if

simplistic, theoretical base of Bauhaus modernism but, with its emphasis

on contextualism 19, allowed direct or indirect historical references under-

stood by the initiated as ironic or tongue-in-cheek, not part of an organic

development of a body of precedents. Nonetheless, the postmodernism of

Venturi, for example, while perhaps not what Collins had in mind when

he suggested in Architectural judgement that 'legal attempts to achieve a

balance between preservation and innovation might profitably be applied

to judgments concerning changes in our architectural environment '2°, is

one approach to the use of precedent (the third of four suggested by Rapoport21).

Rapoport's four categories of use of precedent are: history may be

ignored; its existence may be acknowledged; precedents may provide a

'quarry or mine for forms and elements (as in so-called "postmodernism"

and the like)'; or 'one can learn from evidence by deriving lessons through the application of various models, concepts or principles '22. Each of these

approaches to precedent has played a part in 20th century western

architecture and urban design.

The early modernists chose to ignore stylistic, structural and construction-

al precedents. In Britain, garden city neo-Georgian and Queen Anne

revival architecture frankly acknowledged its historical roots. Postmod-

ernism made use of classical precedents and, at least in some of its

manifestations, quarried classical elements, and the fourth approach to precedent can be seen in the work of Alexander 23'24.

19 Punter, J V 'Design review and conservation in Britain: historical development and contemporary relationship' Proceedings, International Symposiurn on De- sign Review, University of Cincin- nati (1992) p 431 20 Collins, P Architectural judgement Faber anti Faber, London, UK (1971) p 144 21 Rapoport, A Hisl'ory and precedent in environmental design Plenum Press, New York (1990) p 2 22 Ibid pp 2, 29, 31 23 Alexander, C, Ishikewa, S end Sllverstetn, M A pattern language Oxford Universily Press, New York (1977) 24 Alexander, C The timeless way of building Oxford University Press, New York (1979) 25 (1948) 17 LGR (NSW) 9

The rejection of precedents by the modern movement in architecture (as

in Rapoport 's first model) was part of a deliberate policy of wiping the

slate clean, rather than the product of confusion as to which precedent to

follow. In Australia the argument in favour of a rejection of architectural

precedents succeeded in the landmark case of Farley v Warringah Shire

Council (1948) 25. At issue was the design of a house for a northern

beach-side suburb of Sydney by the architect, Sydney Ancher, which

flouted the local council's rule prohibiting the use of flat roofs on domestic

buildings.

Sydney Ancher argued for a flat roofed house in a locality of pitched roofs

by quoting from a work of Gropius (then Professor of Architecture at Harvard) in support of his argument for an uncontextual approach to

urban design by which the proposed design would itself set a precedent


26 Ibid at 12 27 Id 28 Seellg, J and Seellg, M 'The new physical planning: linking in- tuition and limits' Journal of Architectural and Planning Re- search Vol 3 No 1 (1987) p 5 29 Frank, J Law and the modem mind Brentano's, New York (1930) p 148

We want to create a clear organic architecture, whose inner logic will be radiant

and naked, unencumbered by facades and trickeries; we want an architecture

adapted to the world of machines, radios and fast cars, an architecture whose

function is clearly recognisable in the relation of its forms. With the increasing

firmness and density of modern materials - steel, concrete, glass - and with the

boldness of engineering, the ponderousness of the old method of building is giving

way to a lightness and airiness. A new aesthetic of the horizontal is beginning to

develop which endeavours to counteract the effect of gravity 26.

The judge in the Farley case summarized Ancher 's evidence on this point

as follows

the attractiveness of this type of building is not tied to particular sites or to freedom

from surrounding buildings of different design. With other buildings around, it

would still look attractive, although perhaps different. And he thinks that in any

case the architecture of new buildings in the vicinity might be influenced so that

they would harmonise 27.

Ancher ' s client, Farley, won the case on the basis that architects of repute

should be allowed to try out architectural ideas which had gained

acceptance in Europe and the Uni ted States of America. This is an

argument that is unlikely to succeed in the current climate of design

review.

The fourth approach to precedent referred to by Rapoport , that is

'[learning] from evidence by deriving lessons through the application of

various models, concepts or principles' most closely corresponds to the

doctrine of precedent in legal reasoning. Seelig and Seelig 2s drew a similar

analogy to that of Collins between legal precedents and precedents in

urban design. They identified ' the limits of precedent, context, order, and

values, as well as planners ' self-imposed constraints of hierarchy and

m e t h o d o l o g y . . , as positive stimuli to good urban planning '

A consideration of precedent is second nature to the lawyer . . . . It should be

equally automatic for planners and designers to consider precedent and past

successes in their work 28.

The doctrine of precedent in law, in the hands of progressive judges, is

remarkably adaptable to social change, to such an extent in some cases as

to raise the suspicion that mere lip-service is being paid to the doctrine of

precedent. Frank e9 has argued that this is so in all cases. In his view all

lawyers and judges merely 'purport to make large use of precedents ' and

that '[w]hat the courts in fact do is to manipulate the language of former

decisions'. In a similar vein Justice Cardozo wrote in The nature of the judicial process, before his elevation to the bench of the Uni ted States


30 Cardozo, B N The nature of the judicial process Yale Uni- versity Press, New H~tvan, CT (1968 (first published 1921)), p160 31 Pound, R The spirit of the common law Marshall Jonas Company, Boston, MA (1921) p182 32 Reproduced in Brown, H J J 'Planning permission on appeal' [1958] JPL 251 at 253

Supreme Court, of 'a spirit and a tendency to subordinate precedent to

justice' in the United States courts 3°.

When drawing an analogy between the status of precedents in law and the

use of precedents in architecture it is not necessary to agree or disagree

with Frank. His view does not diminish the importance of precedents in

maintaining a coherent body of legal theory to which due deference is paid

by judges in their decisions and by lawyers in their advice to clients.

Pound 31 has referred to a 'process of inclusion and exclusion' and the use

of 'principles reached inductively from the judicial experience of the past,

not by deduction from rules established arbitrarily'. It is this lack of

arbitrariness in legal decision-making (whether contrived through disin-

genous reference to precedents as Frank suggests, or not) which has the

most relevance to architects and urban designers. Designs which pay a

similar deference to precedent appear to offer the best chance of surviving

the design review process without resorting to mere mimicry of historical

examples. To find time in the design studio for students to develop a

theoretical base for their work which draws on this approach to precedent

would seem to be time well spent.

The consideration of the question of what, if any, precedents should apply

in urban design is not merely an appropriate issue for the design studio; it

pervades all design endeavour and criticism. Whatever the approach to

precedent adopted in resolving a particular design programme, the

evaluation of the solution in practice, and in the design studio (even in

cases where precedent is not explicitly mentioned either in the programme

or in studio critiques) involves a stance on issues of precedent. All design

review, both in the design studio and in practice by consent authorities

and review tribunals, is inescapably concerned with the evaluation of

building design proposals in context.

The following pronouncement on design merit from the British Ministry Bulletin VIII, No 11 is typical

The merits of an architectural design must always be a matter of opinion, and

refusal of planning permission for the erection of buildings on grounds of design

alone is not justified unless there is some evidence to substantiate the claim that the

building when erected would have a seriously detrimental effect on the visual

amenities of the neighbourhood 32.

This quotation is a useful starting point for any discussion in the

architectural studio of guiding principles of aesthetic control as it touches

on the three main issues addressed by municipal design review policies,

namely: the importance of context in the evaluation of design merit;


33 McAuslen, P The ideologies of planning law Pergamon Press, Oxford, UK (1980) p 148 34 Swanson v City of Melbourne (1989) 39 APA 121 35 Harrington v Chinchilla Shire Council (1989) 38 APA 357 at 360 36 Johnson, P-A The theory of architecture Van Nostrand Reinhold, New York, NY (1994) p 4, paraphrasing Rsh, S Do/ng what comes naturally: change, rhetoric, and the practice of theory in literary and legal studies Duke University Press, Durham, NC, and London (1989)

design evaluation as a matter of opinion, rather than the inevitable

product of logic (as proposed by Gropius); and, by implication, the

justification for intervention by consent authorities and the legislature on

questions of design as matters of public interest.

2 Reasonable expectations, design review and amenity Any doubt about the importance of precedent in the design review

process is dispelled by the express or implied requirement that design

review satisfies public interest criteria. In Britain, for example, a consent

dealing with an application is required by s 70 of the Town and Country

Planning Act 1990 to 'have regard to the provisions of the development

plan, so far as material to the application, and to any other material

considerations'. McAuslan 33 describes s 70 as 'a good example of public

interest phraseology in the statute', although the words 'public interest'

are not used. Express requirements for public interest to be considered by

consent authorities considering planning or building applications are

found in s 90 (1) r of the Environmental Planning and Assessment Act 1979

(NSW) and in s 89 of the Local Government Act 1993 (NSW). The extent

to which any design proposal can be said to be in the public interest can

only be gauged by reference to justifiable expectations of architects, their

clients and the general public, all of which are coloured by the experience

of existing environments, that is by reactions to precedents. Consistency

by consent authorities is closely related to fairness in administration;

certainty in planning is desirable and in the public interest, as in other

areas of law 34. The extent to which consent authorities follow previous

planning and design review decisions is therefore relevant in assessing the

level of consistency in decision-making. Closely related to the question of

consistency and the reliance on binding or nonbinding precedents to

maintain administrative and judicial consistency is the issue of the

justifiable and reasonable expectation by land owners that they will be

able to enjoy the use of their land and of the public that its amenity will

not be adversely affected by buildings not in conformity with neighbour-

ing buildings, design guidelines or community perceptions of amenity 35.

Whether lawyers' clients speak the same language as lawyers does not

matter, provided clients have a clear understanding of possible outcomes to be able to give informed instructions to their lawyers, but it does matter whether architects have the same approach to precedents as non- architects. This is because lay council committees, although typically

advised by architectural and planning professionals, often make the final decision about design; and because the reasonable expectations of

property owners and the general public about building design are coloured by precedents. Fish 36 has pointed out that 'our very embedded-


ness in any context prevents us from ever being outside it or being able to

construe it as if we were'. In exercising discretionary design review powers

consent municipal authorities are representing the views of an electorate

firmly embedded in various neighbourhood contexts.

The concept of reasonable, justifiable, or legitimate expectations is

specifically relevant to various facets of the law. For example, in

administrative law the existence of a valid expectation on the part of an

applicant derived from knowledge of existing practice provides a basis for

the assumption, in some circumstances, that a regular administrative

practice should continue 37. In a more general sense the concept of

reasonable expectation is underpinned by the doctrine of precedent in the

common law. By reference to a body of accepted practice the doctrine of

precedent contributes to the consistency of legal reasoning which society

is reasonably entitled to expect to be applied in a particular case. And, the

concept of reasonable expectation is at the heart of all design review.

37 Forsyth, C F 'The prove- nance and protection of legitimate expectations' (1988) 47 Cambridge Law Journal 238 at 257 et seq 38 Minister of Local Govern- ment and Town Planning's Pro- gress Report 'Town and Country Planning 194.3-1951' Cmd 8204 Chap. X 39 Rajneesh Foundation of Au- stralia v Shire of Matljimup [No 2] (1985) 17 APA 34 at 3"7 40 Merryman, J and Elsen, A Law, ethics and the visual arts University of Pennsylvania Press, PA (1987), p xiv, citing I-'reund, P 'New vistas in constitulional law' (1964) 112 University ol Pennsyl- vania Law Review at 6:31

The sole justification for design review of building appearance (and the

motivation behind the exercise of design review powers by consent

authorities, inspectors, review boards and planning appeal courts) is the

preservation or enhancement of the amenity of the environment 38.

Residential amenity has been defined as ' the sum of the expectations of

the residents concerning the quality of their residential environment '39.

Amenity is therefore measured by reference to the legitimate expectations

of existing residents or landowners of a particular locality as to future

development. All design review is ultimately a process of evaluating the

likely impact of a proposal on its context, whether existing or planned.

This applies equally to a design intended to play a part in an established

context (such as Mies van der Rohe's design for Number 1 Poultry, in the

City of London, which was held to be out of context) and to a building

intended by its architect to establish a precedent for future buildings (as in

the house the subject of a successful appeal against the local council's

rejection on the basis that the house had a flat roof in Farley v Warringah Shire Council).

3 Design control, the law and the architectural design studio Merryman and Elsen 4°, while noting that it is easy to suppose that art and

law are incompatible, agreed with Freund that there is a sense in which

law and art are 'sympathetically comparable' :

all law resembles art, for the mission of each is to impose a measure of order on the

disorder of experience without stifling the underlying diversity, spontaneity, and


41 Cohen, F S Ethical systems and legal ideas Falcon Press (1933), reissued by Great Seal Books (Cornell University Press), Ithaca, NY (1959) pp 56-57 42 McAuslan, P ol3. cit. n 29 p 2 43 Costonis, J J Icons and aliens: law, aesthetics and environmental change University of Illinois Press, Urbana, IL (1989) p l 44 Wade, J Architecture, prob- lems and purposes Wiley, New York (1977) p 15 45 Broils, J 'Taking design review beyond the beauty parts' Environmental Law 9 (Winter 1979) p226, cited by Lal, R Law in urban design and planning Van Nostrand Reinhold, New York (1988) p311

disarray. New vistas open in art as in law. In neither discipline will the craftsman

succeed unless he sees that proportion and balance are essential, that order and

disorder are both virtues when held in proper t ens ion . . .

and

The basic dilemmas of art and law are, in the end, not dissimilar, and in their

resolution - the resolution of passion and pattern, of frenzy and form, of

convention and revolt, of order and spontaneity- lies the clue to creativity that will

endure. 40

Cohen 41 has gone further, treating the common law, with its emphasis on

analogy and precedent and unity of content, as an aesthetic object in

itself. It would be wrong to assume from these remarks that legal

regulation of the aesthetics of architecture and urban design is an easy

mat ter or that law and architecture are natural bedfellows. McAuslan 42

has argued that

the law relating to land use p lanning . . , lacks objectivity and neutrality so that far

from being the 'golden metewand' of planning with all other aspects in a state of

disarray, the law, its administration and official interpretation (via circular and

ministerial decisions as much as by cases decided in the courts) is itself a major

contributory factor in the continuing disarray of planning.

Similarly, Costonis 43 suggested that to join aesthetics with law, on the

experience of the Uni ted States, is to create a mercurial combinat ion of

the aspirational and the abstract, each as elusive as the other. Citing

Wade 44, Bross 45 has described the 'critical implications for design review'

flowing from the different methods of teaching architecture and law in the

Uni ted States

In comparison to law professors who purportedly apply Occam's razor to cut down

unsupported generalities to precise terms, teachers of architecture 'respond to the

"Gestalt", the perceived totality of the project being presented'. Because

architectural teachers respond to the 'Gestalt', there is considerable flexibility in

the weighing of critical values app l i ed . . . [I]n the judgment process there is no

explicit weighting of the judgmental values. There is no explicit proportioning of

importance among the many issues that architectural criticism addresses.

Thus, the existing system of architectural education fails to properly articulate

substantive standards to balance the competing values in design review. This

system also fails short of the legal procedural requirements that decisions be made

with 'articulate consistency' and with discretion properly structured to insure fair,

regular and consistent decisions. 'Design criticism has tended to be random and

disordered '45.


The same could be said of the relationship between the teaching and

practice of architecture in other common law countries and, no doubt,

elsewhere. In the view of the writer the influence of design review on

urban design is too strong to ignore in the architectural curriculum. In

fact, the influence is so strong that the design curriculum should provide a

forum in at least one studio in the architectural course for the exploration

of responses to design control criteria. Architects typically have a negative

or defensive response to design review, reminiscent of the desire of early

modernists to inculcate the public in the mysteries of the New

Architecture. Better urban design is, of course, a worthy aim. But it must

be acknowledged that the tabula rasa approach to architecture and urban

design, in which architects would, by example, lead a sceptical public

away from the warm glow of a nostalgic, weak and sentimentally florid

aestheticism to a logically transparent architecture, 'virginal of lies or

trivialities', as Gropius 46 hoped, has finally been met with the fierce

resistance of the conservationists and preservationists. The strength of the

opposition shows the extent to which the modern developments failed to

satisfy the legitimate expectations of the public about urban design.

Hence the suggestion that one object of the studio program should be to

encourage a constructive response to specified design control criteria. An

architectural course which teaches design entirely without regard to the

realities of design control and review can be condemned for ignoring the

failure of the modern movement to persuade society by education and

example of the supposedly self-evident benefits of architecture and urban

design freed from the shackles of the past.

Law and architecture both respond to social forces. Common law does so

within the confines of the system of precedent but it does so nevertheless.

Architecture must do so within the constraints of planning and bureaucra-

tic controls. The increasing strength of consumer power leading to more

and more intervention by consent authorities into the design process

parallels changes in the law, in which the public interest has gradually

assumed an importance not seen in the 19th and early 20th century

common law. The growth in the importance of consumer law in the 20th

century roughly coincides with a tightening of municipal controls over the

appearance of buildings.

4 6 Groplus, W o1:.. cit. n 1 pp 55, 56, 79 47 Gruen, V The h~art of our cities Thames and Hudson, Lon* don (1965) lap 35-36

G r u e n 47 has nominated three classes of planning: laissez-faire planning

(that is, no planning), autocratic planning and democratic planning, the

last being put forward as the modern ideal. To the lawyer the term 'laissez

faire' conjures up images of the softness of 19th century common law

towards property owners and industrial entrepreneurs.


48 Cornish, W R and Clark, G de N Law and society in England 1750-1950 Sweet and Maxwell, London, UK (1989) p 71 49 [1932] AC 562 50 Goodhart, A L Essays in jurisprudence and the common law Cambridge University Press, Cambridge, UK (1931); reissued Wiidy & Sons, London, UK (1972) p34

For architects to ignore the realities of design review is to attempt to turn

back the clock to the 19th century when laissez-faire attitudes to urban

design mirrored the sympathy of most judges at that time with the broad

spirit of laissez-faire - 'with a view of the world in which the state and its

law kept the civil peace, secured property rights and upheld bargains '48.

Although 19th century cases must be seen against a background of

legislated improvement in health and safety of buildings, the earlier

emphasis was on health and safety rather than appearance. Systematic

and extensive aesthetic control by consent authorities is a product of the

20th century. Even a year before the decision of the House of Lords in

Donoghue v Stevenson 49 transformed the rights of consumers in English

tort law by finding the manufacturer of a defective product liable to

resulting injury to a consumer in the absence of a contract, Goodhart 5°

was entitled to write, in Essays in jurisprudence and the common law

In the nineteenth century we had primarily the doctrine of laissez faire, the idea

that any interference with the liberty of the individual was prima facie contrary to

sound principles. The nineteenth century thought of the individual and his rights;

the twentieth century is concerned with the community and its needs.

Design review is simply a manifestation of this upsurge in consumer

rights. If a design proposal is to be approved, the business of architecture

inevitably involves the sort of horrible jostling with consent authorities

which would have driven Gumbril Senior to the best bedroom. The

architecture school design studio is the obvious place for architects to

begin to approach design review in a positive and constructive way.

112 Design Studies Voi 18 No 1 January 1997

a place for the law in architectural studies

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