The Lessees and Management Company of Herons Court v Heronslea Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Lord Justice Floyd,Lord Justice Lewison |
| Judgment Date | 14 August 2019 |
| Neutral Citation | [2019] EWCA Civ 1423 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A1/2018/2751 |
| Date | 14 August 2019 |
[2019] EWCA Civ 1423
Lord Justice Lewison
Lord Justice Floyd
and
Lord Justice Hamblen
Case No: A1/2018/2751
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
THE HONOURABLE MR JUSTICE WAKSMAN
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Letman (instructed by Fairweather Law Limited) for the Appellants/Claimants
Samuel Townend and Harry Smith (instructed by NHBC Legal Department) for the Respondent/Fourth Defendant
Hearing date: 25 July 2019
Approved Judgment
Introduction
This appeal concerns whether approved inspectors (“AIs”) owe a duty under s. 1 of the Defective Premises Act 1972 (“ DPA 1972”) in the performance of their statutory function under Part II of the Building Act 1984 (“the 1984 Act”), which involves inspection and certification in order to ensure compliance with building regulations.
The judge, Waksman J, held that no duty is owed and struck out the claim against the Respondent AI (“BCS”) on that basis. The Appellants appeal against that decision.
Factual and procedural background
The Appellant Claimants are the lessees of flats at Herons Court, Shenley Hill, Radlett, Hertfordshire (“Herons Court”), either as original purchasers or assignees of the long leasehold interests, together with the lessees' management company.
The Appellants brought a claim for damages against the four Defendants arising out of the alleged defective construction of flats in 2012.
The First Defendant was the developer of Herons Court. The Second Defendant was the main contractor for the construction of Herons Court. The Third Defendant was the provider of the NHBC Buildmark insurance policy obtained by each of the purchasers of the flats at Herons Court.
The Fourth Defendant, BCS, is an AI for the purposes of the 1984 Act and under its contract with the developer provided building control services including inspection and certification in order to ensure compliance with building regulations at Herons Court.
Particulars of Claim were served on 24 April 2018, by which the Appellants made claims against the Defendants in respect of alleged breaches of building regulations and NHBC Technical Requirements and Performance Standards relating to Fire Prevention and Safety, as well as in relation to ventilation, sanitation, heating provision, insulation and other matters. By reason of the alleged defects the Appellants maintain that their flats were unfit for habitation on completion. The cost of the required remedial work is claimed in the sum of just under £3m. The claims are defended by the Defendants, each of whom has filed a defence, save for BCS.
By an application notice dated 27 July 2018 BCS applied to strike out the case against it pursuant to CPR rr.3.4(2)(a) and/or 3.4(2)(b) on the ground that no duty is owed in law by an AI under s.1(1) DPA 1972.
The Respondent's application was heard in the TCC by Waksman J on 16 October 2018. By an oral judgment given on Monday 29 October 2018 the application was granted and it was held that no duty was owed. Permission to appeal was granted by Coulson LJ on 15 January 2019.
The Statutory and Regulatory Framework
The DPA 1972
Section 1 DPA 1972 provides:
“(1) A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty –
(a) if the dwelling is provided to the order of any person, to that person; and
(b) without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;
to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.
…
(4) A person who—
(a) in the course of a business which consists of or includes providing or arranging for the provision of dwellings or installations in dwellings; or
(b) in the exercise of a power of making such provision or arrangements conferred by or by virtue of any enactment;
arranges for another to take on work for or in connection with the provision of a dwelling shall be treated for the purposes of this section as included among the persons who have taken on the work.”
The Building Regulations at the time of the DPA 1972
The origins of the present system of building control are to be found in the Public Health Act 1875 (“the 1875 Act”). By s.157 of the 1875 Act, urban authorities were empowered to make byelaws regulating the construction of new buildings. By s. 158, it was provided:
“Where a notice plan or description of any work is required by any byelaw made by an urban authority to be laid before that authority, the urban authority shall, within one month after the same has been delivered or sent to their surveyor or clerk, signify in writing their approval or disapproval of the intended work to the person proposing to execute the same; and if the work is commenced after such notice of disapproval, or before the expiration of such month without such approval, and is in any respect not in conformity with any byelaw of the urban authority, the urban authority may cause so much of the work as has been executed to be pulled down or removed.”
The provisions of the 1875 Act were consolidated and developed in the Public Health Act 1936, which provided, by s. 64(1):
“Where plans of any proposed work are, in accordance with building byelaws, deposited with a local authority, the local authority shall… pass the plans unless they either are defective, or show that the proposed work would contravene any of those byelaws, and, if the plans are defective or show that the proposed work would contravene any of those byelaws, they shall reject the plans.”
The Public Health Act 1961 revoked, by s. 4(1), the power to make building byelaws, and provided for their replacement throughout England and Wales (save, initially, for Inner London) by building regulations. By s. 4(3), it was provided that: “It shall be the function of every local authority to enforce building regulations in their district.” By s. 4(6), it was provided that a person contravening any provision contained in building regulations would be liable on conviction to a fine.
The first building regulations were the Building Regulations 1965. By regulation A10, the 1965 Regulations required a builder to give notice to the relevant local authority of proposed building operations in order to enable the inspection of the work by the authority to ascertain whether the requirements of the regulations were met. No provision was made for the carrying out of inspections on behalf of local authorities by third parties. Neither the 1961 Act nor the 1965 Regulations provided for civil liability arising from breach of building regulations.
Subsequent developments in the Building Regulations
The Health and Safety at Work etc. Act 1974, by s. 70(1), extended the scope of the power to make building regulations to include Inner London, and by s. 71, made provision as to civil liability arising from breach of building regulations. This latter provision was, however, only brought into force insofar as to enable regulations to be made: see the Health and Safety at Work etc. Act 1974 (Commencement No. 4) Order 1977, art. 4.
The 1984 Act, amongst other things, re-enacted and consolidated the existing statutory provisions empowering the Secretary of State to make building regulations (s. 1); imposed criminal liability for breaches of the regulations (s. 35); required local authorities to approve plans for work deposited with them unless “the plans are defective” or “they show that the proposed work would contravene any of the building regulations” (s. 16); made provision for practical guidance to be given with respect to the requirements of the building regulations by Approved Documents (ss. 6–7); imposed a duty on local authorities to pass plans deposited with them in accordance with building regulations unless “the plans are defective” or “they show that the proposed work would contravene any of the building regulations” (s. 16), and replaced s. 71(1) of the 1974 Act with s. 38 of the 1984 Act, a section in substantially the same terms as its predecessor. As with s. 71(1) of the 1974 Act, s. 38 of the 1984 Act has been brought into force only insofar as it enables regulations to be made (see s. 134(2) of the 1984 Act).
The 1984 Act also made provision for the introduction of the AI regime via a system of certificates, and for its development by way of further regulations (Part II).
The Building Regulations 1985, replacing the 1965 Regulations, and the Building (Approved Inspectors etc.) Regulations 1985, were made the following year.
By regulation 9 of the Building (Approved Inspectors etc.) Regulations 1985, under the heading “Independence of approved inspectors”, it was provided that an approved inspector was to have “no professional or financial interest in the work he supervises” unless it was “minor work” as defined. By regulation 10, it was provided that an approved inspector by whom an initial notice had been given owed a duty whilst the notice remained in force to “take such steps as are reasonable to enable him to be satisfied within the limits of professional skill and care” that the requirements of the building regulations were met. These were designated...
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