Herons Court v Heronslea Ltd and others

Defective premises – Approved inspectors – Duty – Appellant lessees appealing against court’s decision striking out claim against approved inspector in respect of alleged breaches of building regulations – Whether approved inspector owing duty under section 1 of Defective Premises Act 1972 in performance of statutory function involving inspection and certification to ensure compliance with building regulations – Appeal dismissed The appellants were the lessees of flats at Herons Court, Shenley Hill, Radlett, Hertfordshire, 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 respondents arising out of the alleged defective construction of the flats. The first respondent was the developer of Herons Court. The second respondent was the main contractor for its construction. The third respondent was the provider of the NHBC Buildmark insurance policy obtained by the purchasers of the flats. The fourth respondent was an approved inspector for the purposes of the Building Act 1984 and under its contract with the first respondent provided building control services including inspection and certification to ensure compliance with building regulations at Herons Court. The appellants made claims against the respondents in respect of alleged breaches of building regulations and NHBC Technical Requirements and Performance Standards relating to Fire Prevention and Safety, as well as ventilation, sanitation, heating provision, insulation and other matters. By reason of the alleged defects the appellants maintained that their flats were unfit for habitation. The cost of the required remedial work was claimed in the sum of just under £3 million. Each of the respondents filed a defence, save for the fourth respondent. By an application notice, the fourth respondent applied to strike out the case against it pursuant to CPR 3.4(2)(a) and/or 3.4(2)(b) on the ground that no duty was owed in law by an approved inspector under section 1(1) of the Defective Premises Act 1972. The application was granted and it was held that no duty was owed: [2018] EWHC 3309 (TCC). The appellants appealed. Held: The appeal was dismissed. (1) Section 1(1) of the 1972 Act provided that a person taking on work for or in connection with the provision of a dwelling owed a duty to see that the work which he took on was done in a workmanlike or professional manner. The words “in connection with” necessarily took their colour from the context in which they were used. Sometimes that would mean they were words of the widest import but on other occasions it would not. In the present case the context included 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”.  That included that the duty related to how “the work which he takes on is done” and that it was done “with proper materials”. The focus was therefore very much on the doing of work. That work also had to relate to the “provision of a dwelling” which suggested the bringing of that dwelling into physical existence or its creation which was consistent with how those words had been interpreted in other cases. The “provision” was a word which prima facie involved the creation of something new. The emphasis was therefore on those who did work which positively contributed to the creation of the dwelling which might include architects and engineers who prescribed how the dwelling was to be created, not just those who physically created it. It did not, however, include those whose role was the essentially negative one of seeing that no work was done which contravened building regulations. Building control ensured that the dwelling was legal and properly certified, but it did not positively contribute to the provision or creation of that dwelling. The fact that section 1(1) was focusing on those involved in the doing of the work involved in the provision of the dwelling was borne out by section 1(4) which extended its ambit to developers. They arranged for others to take on work but did not take on that work themselves. Special provision was therefore needed to ensure that section 1(1) applied to them: Jacobs v Morton & Partners (1994) 72 BLR 92 and Saigol v Cranley Mansions Ltd (1995) unrep., [1996] CA Transcript No 658; [1996] EGCS 81 considered. (2) An approved inspector’s function was far removed from the work of the provision or creation of the dwelling. Such inspectors had no statutory power to order changes to be made to plans for works, or to building work which was ongoing or completed. Their powers were confined to refusing to issue a plans certificate or final certificate in the face of non-compliant work. Moreover, unlike the local authority, approved inspectors had no power to impose conditions or prescribe modifications to the works and the relevant enforcement powers were left entirely with the local authority. Therefore, an approved inspector had no statutory power to influence the design or construction of a building in any way, save to stipulate that it had to comply with the law. In certifying, or refusing to certify, plans and works, the inspector was not engaged in the positive role of the provision or creation of the relevant building, but performed the essentially negative regulatory role of checking for compliance against prescribed criteria. Accordingly, the judge was correct to conclude that an approved inspector performing statutory functions did not fall within section 1(1) of the 1972 Act on its natural and ordinary meaning. Powerful support for that conclusion was provided by the House of Lords in Murphy v Brentwood District Council [1991] 1 AC 398 which strongly suggested that a local authority inspector owed no duty under section 1(1) of the 1972 Act, and that no distinction could properly be drawn between the position of a local authority inspector and an approved inspector. (3) The statutory regimes governing the building control functions of local authorities, and the role and responsibilities of approved inspectors, directly paralleled one another, and insofar as the regimes diverged, it was to give the local authority more expansive powers than those available to its approved inspector counterpart. If there was no material distinction between the position of a local authority inspector and an approved inspector, it followed that Murphy was highly persuasive authority against the imposition of the alleged duty on approved inspectors. Paul Letman (instructed by Fairweather Law Ltd) appeared for the appellants; Samuel Townend and Harry Smith (instructed by NHBC Legal Department) appeared for the fourth respondent. Eileen O’Grady, barrister Click here to read a transcript of Herons Court v Heronslea Ltd and others