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Liability of an Approved building inspector under s1 of the Defective Premises Act 1972

  • July 17, 2019
  • Mike Massen
  • Comments Off on Liability of an Approved building inspector under s1 of the Defective Premises Act 1972

The recent case of Heron’s Court v Heronslea & others [2018] EWHC 3309 (TCC) has highlighted the extent to which an approved building inspector can be liable for breach of duty under s.1 of the Defective Premises Act 1972 (“the Act”). In short, they are not liable, however, a more detailed consideration of the judgment reveals the reasons why.

The case facts

The Claimants were the Lessees and Management Company of Heron’s Court, a block of flats in Shenley Hill, Radlett. They brought a claim against the developer, main building contractor, the National House Building Council (“NHBC”) and NHBC Building Control Services (“BCS”). It is the claim against the BCS which is of concern to us here.

Under s1 of the Act ‘A person taking on work for or in connection with the provision of a dwelling owes a duty to see that the work which he undertakes is done in a workmanlike or professional manner, with proper materials so that the dwelling will be fit for habitation when completed’.

The alleged breaches

The Claimants alleged that there were 101 individual breaches of building regulations and that BCS was in part liable for them as it had taken on work ‘for or in connection with the provision of a dwelling’ which gave rise to a duty on them to ensure that the work done was done in a workmanlike or professional manner.

BCS applied to strike this claim out on the basis that the claim either disclosed no reasonable grounds for bringing the claim and/or that the claim was devoid of particulars to the extent that it amounted to an abuse of process.

The central point in dispute was whether an approved inspector fell within the scope of s1 of the Act as someone who was undertaking work ‘for or in connection with the provision of a dwelling’.

The Judge’s view

The Judge considered the role of an approved inspector as introduced by the Building Act 1984 and subsequent regulations. He then considered the specific wording of s.1 of the Act and the Law Commission report that was commissioned prior to the enactment of the Act. Having considered the pertinent paragraphs of that report the Judge went on to state at 31:

“It is, in my judgment, abundantly clear from the fair reading of those parts of the report, that the Law Commission considered that those who could fall within clause 1, other than builders, would be architects, designers, and those supervising the construction of the works on behalf of one of the building or designing parties. That is quite different from an inspector, whose essential function is not to contribute in any meaningful way to the design or construction of the building, but rather to certify simply whether that design or construction is lawful in a building sense, and that is the extent of the role.”

Review of Judgment

Of particular persuasiveness to the Judge’s conclusion was the decision of the House of Lords (as it then was) in Murphy v Brentwood District Council [1991] UKHL 2 in which their Lordships stated that the creation of a new area of responsibilities for local authorities (they were the only providers of building inspection at that time) was not a proper exercise of judicial power (i.e. it was a matter for Parliament to create such a new area of responsibility).

This case, therefore, clarifies the position that approved building inspectors do not fall within the scope of the Act and are therefore are not liable where work has not been carried out in a workmanlike or professional manner. Such a claim must be brought against the actual parties who carried out the work.

Robert Blair – Cohen Cramer 17/07/19

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