Building control inspection
Image shared under the CC0 licence, obtained from MaxPixel
This privatisation of building control has many critics. Inside Housing notes that there have been concerns about how ‘rigorous the checking is’ and of the risk of conflicts of interest. NHBC has significant market share and some have questioned whether BCS operates sufficiently independently of the warranty arm of NHBC, particularly noting that Buildmark cover for Building Regulations non-compliance is only available if BCS has been the AI. The Hackitt Independent Review of Building Regulations and Fire Safety noted key weaknesses in this regulatory model, such as ‘incentives for building control competitors to attract business by offering minimal interventions or supportive interpretations to contractors’. Given these kinds of concerns, the question arises as to how AIs (and local authority building inspectors) can be held accountable. A spokesperson for the NHBC quoted by Inside Housing ‘said that the buck stops with the builder not the inspector.’ If, however, as has been argued, AIs do come within s. 1(1) of the DPA, this would provide a route for holding AIs to account. But this has now been shut down by Herons Court.
Initially dwellings sold under the NHBC Buildmark scheme were exempted from the s. 1 duty (s. 2) but that exemption was withdrawn in 1979. The DPA has been referred to as a ‘remarkably underused piece of legislation’, particularly as it appears to fill a gap in the common law which has not permitted recovery for defective building work through the tort of negligence since the House of Lords closed the door for recovery for pure economic loss in the 1991 case of Murphy v Brentwood. Liability under s. 1 DPA is thought to be strict (and proper care will not be a defence), as noted by Waksman J in Herons Court at first instance ([para 37], referring to Keating on Construction Contracts). Further, it was held in Rendlesham Estates plc v Barr that although the ‘dwelling’ is the individual apartment and other parts to which the occupier has exclusive access (such as a balcony) [para 46], the work ‘in connection with’ the provision of the flat will include work to the ‘structural and common parts of each block’ . Rendlesham Estates also held that ‘fitness for habitation’ requires defects to be looked at ‘as a whole’ and taking account of ‘all the types of person’ who might live there. Given this, blocks of flats that can only be safely occupied with the additional measure of ‘waking watch’ will surely not be ‘fit for habitation’ and the DPA therefore provides an avenue of potential redress.
The Herons Court litigation
Herons Court is a block of 12 flats built in 2012. The claim was brought against four defendants: the developer, contractor, NHBC, and the AI, BCS. It was alleged there were 101 individual breaches of building regulations, a large number concerning fire protection. The Court of Appeal case discussed here was not the hearing on the substantive issues (whether work was properly done, whether the premises were fit for habitation etc.) but a strike out application brought by BCS (interestingly, not also by NHBC) on the preliminary issue as to whether BCS owes a duty under the DPA in the first place.
The Court of Appeal reasoning centres on the wording of s. 1(1). The way that section 1 is worded shows that the ‘focus is … very much on the doing of the work’ [para 38] to do with the ‘bringing of that dwelling into physical existence’ [para 39]. The emphasis is on ‘those who do work which positively contributes to the creation of the dwelling’. This can include members of the design team, such as architects and engineers, but does not ‘include those whose role is the essentially negative one of seeing that no work is done which contravenes building regulations’ [para 40]. Therefore ‘an AI performing statutory functions does not fall within s 1(1) DPA 1972 on its natural and ordinary meaning’ [para 44].
Although the decision was based on the wording of s. 1 DPA, the Court of Appeal also said that support for this could be found in Murphy v Brentwood. There it was noted that statute had not imposed the burden of acting as insurers of buildings on local authorities, and it was not the role of the courts to step in to provide consumer protection. An AI is no different.
Image by Nathan Bunney
Post-Grenfell there is an emerging crisis as AIs are finding it hard to secure insurance. According to Inside Housing, one of the two brokers who cover AIs withdrew from this market at the end of 2018 and at least one AI has filed for voluntary liquidation. Although Grenfell has highlighted the importance and risk of inspection work, it is interesting that Herons Court operates to reduce legal exposure.
Herons Court has shut down the possibility of suing building inspectors by using the DPA. Nor can they be sued in negligence. This leads on to the question of how building inspectors can be held to account. The Building Act 1984 s. 38 makes provision for breach of a duty imposed by building regulations to be actionable so far as it causes damages, but the section has not been brought into force so as to enable claims to be made. This was noted at first instance in Herons Court [para 36] and Waksman J noted that the fact it was ‘it is contemplated that there would be a separate freestanding regime for any civil liability … militates, to some extent, against the notion that approved inspectors should be subject to’ s. 1 DPA. The Government is currently consulting on whether this should be brought into force (paras 370-372) but without reform to recovery for economic loss it is unclear what difference this would make.
How to cite this blog post (Harvard style)
Bright, S. (2019). Building Inspectors and Liability. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2019/09/building-inspectors-and-liability (Accessed [date]).