Lessees and Management Company of Herons Court v Heronslea Ltd deals with an appeal which considered the liability of Approved Inspectors (AI) under the Defective Premises Act 1972 (the “DPA”) in the performance of their statutory function under Part II of the Building Act 1984 (“Building Act”) which involves inspection and certification in order to ensure compliance with building regulations.
Section 1(1) of the DPA requires those who take on work "in connection with the provision of a dwelling" to carry out that work in a workmanlike manner and/or in a professional manner with proper materials so that the dwelling is fit for habitation.
The Building Act made provision for the introduction of the AI regime via a system of certificates. The duty on AI’s is now contained in Regulation 8 of the Building (Approved Inspectors etc) Regulations 2010 and requires them to “take such steps as are reasonable to enable him to be satisfied within the limits of professional skill and care” that building regulations are complied with.
The case concerns a block of 12 flats built in Hertfordshire in 2012. These flats were owned on a leasehold basis and the lessees of the flats alleged that the works were seriously defective.
They brought a claim via the management company, Lessees and Management Company of Herons Court (“Lessees”) against the developer, the main contractor, the NHBC (which provided a “buildmark” insurance policy in respect of the flats) and finally Heronslea Limited (“Heronslea”) which had AI status and had inspected the plans and building works, as well as certifying that relevant building regulations had been complied with.
The Lessees claimed that Heronslea had “taken on work for or in connection with the provision of a dwelling” within the meaning of the DPA and accordingly owed a duty to them to see that all work was done in a workmanlike or professional manner with proper material so that the dwellings would be fit for habitation when complete.
Hersonlea applied for the claim to be stuck out on the basis that an AI owed no duty under Section 1(1) of the DPA because a building control inspector did not make a positive contribution to the design or construction of a building. The TCC in the first instance ruled in favour of Heronslea and struck out the claim.
The Lessees appealed against the striking out of their claim. They argued that on its natural an ordinary meaning Section 1(1) of the DPA extended to AIs because the word ‘in connection with’ were words of the widest import and conveyed any link at all.
The appeal was dismissed.
Lord Justice Hamblen stated in his judgment the following:
“….the context includes the whole of section 1(1), not just the words: "A person taking on work for or in connection with the provision of a dwelling". …. The focus is therefore very much on the doing of work.
The emphasis is therefore on those who do work which positively contributes to the creation of the dwelling…. It does not, however, include those whose role is the essentially negative one of seeing that no work is done which contravenes building regulations…..
…..an AI's function is far removed from the work of the provision or creation of the dwelling is borne out by the fact that an AI has no statutory power to order changes to be made to plans for works, or to building work which is ongoing or completed. The powers of the AI are confined to refusing to issue a plans certificate or final certificate in the face of non-compliant work. Moreover, unlike the local authority, the AI has no power to impose conditions or prescribe modifications to the works and the relevant enforcement powers are left entirely with the local authority.
An AI therefore 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. In certifying, or refusing to certify, plans and works, the AI is not engaged in the positive role of the provision or creation of the relevant building, but performs the essentially negative regulatory role of checking for compliance against prescribed criteria.”
So what now for Approved Inspectors?
The Court of Appeal held that an AI does not have any statutory power to influence the design or construction of a building, they merely have a negative regulatory role for checking for compliance against prescribed criteria so cannot be held liable under Section 1(1) of the DPA.
This case has left little scope for claims against AIs under the DPA so it important to put robust AI appointments into place to ensure there are contractual obligations on the AI. Wherever possible, also try and insure to ensure Collateral Warranties are provided. Although building control officers and AIs are often reluctant to agreed to deleterious materials clauses as they refer to specify, use or allow to be specified or used. Arguably, these clauses should be amended to say that they will use the relevant standard of care to see that they do not issue and certificates where deleterious materials have been used.