Defective Premises Act 1972

Defective Premises Act 1972 – does this extend to Approved Inspectors? We speak to Mark James at Coffin Mew about the legal view.

Approved Inspectors (AI) have to perform statutory functions under the Building Act 1987, ensuring compliance with building regulations, by carrying out inspections and certifying the works.

A recent case in the Court of Appeal, questions whether AI also owe a duty under the Defective Premises Act 1972 (the DPA 1972). In The Lessees and Management Company of Herons Court v NHBC Building Control Services Limited and others [2019], the Claimant was a management company and original purchaser or assignee of long leasehold interests (the Lessees); Herons Court is a block of flats located in Hertfordshire.

The flats were built in 2012 and it was alleged that the construction of the flats was defective; due to this, the Lessees bought a claim for damages.

There were four Defendants under the original claim; the developer, the main contractor for the construction, the provider of the NHBC Buildmark insurance policy and BCS, which for the purpose of the 1984 Act, was an AI. BCS’s contract with the developer allowed for building control services, including, but not limited to, inspection and certification in order to ensure compliance with building regulations.

The Lessees alleged the flats were uninhabitable and on 24 April 2018 claims were made against the Defendants for breach of building regulations and performance standards relating to Fire Prevention and Safety, as well as ventilation, sanitation, heating provision and insulation. The cost of the remedial works is suspected to be circa £3,000,000.

BCS did not file a defence to the claim like the other three Defendants and instead applied to strike out the case on the ground that no duty is owed by an AI under Defective Premises Act 1972.

Section 1 of the DPA 1972 provides that:

“(1) a person taking on work for or in connection with the provision of a dwelling […] owes a duty –

• if the dwelling is provided to the order of any person, to that person; and
• without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;

to see what work which he takes on is done in a workmanlike […] so that as regards to the work the dwelling will be fit for habitation when completed”

The Lessees main arguments stem from the wording “or in connection with the provision of a dwelling” and that the ordinary meaning of this wording would extend to AI due to the work that they take on. Whereas, BCS relied on their interpretation that the natural meaning of the words “in connection with the provision of a dwelling” is work of builders, architects and engineers who are involved to bring the building into physical existence.

On 29 October 2018, an oral judgment was given and it was held that no duty was owed by an AI.

Appeal

The Court of Appeal upheld the earlier decision and rejected the submissions of the Lessees, accepting those of BCS stating an AI:

“has no statutory power to influence the design or construction of a building in any way, save to stipulate that it must comply with the law”.

They do not have a positive contribution to the design, AI simply confirm the construction of the building is lawful.

The conclusion of the appeal was that AI do not fall within the natural meaning of Section 1, DPA 1972 above.  It was noted that AI are seen to be similar to the Local Authority who “undertake their statutory roles in respect of building regulation compliance”.

The appeal was dismissed.

Conclusion

The key distinction here is whose position, as part of the construction works, falls under influencing design and/or construction of the dwelling, and whose contribution is simply to comply with the legal requirements.

This case is the first time in 35 years that AI have been alleged to owe a duty; the case highlights that it is important to understand the position of each party involved during the construction process, and ensure their activities accurately define their role and contribution. On a large construction project, there can be various elements of the work that are likely to be contracted or sub-contracted to third parties and given the final sign off by different entities.

Article by Mark James, partner in the Real Estate sector group at law firm Coffin Mew

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