Building Control, Approved Inspectors and duty of care: Court of Appeal provides guidance on scope of duty

This blog reviews the Court's decision in Lessees and Management Co of Herons Court v NHBC Building Control Services Limited [2019] EWCA Civ 1423.

The recent Court of Appeal decision in Lessees and Management Co of Herons Court v NHBC Building Control Services Limited [2019] EWCA Civ 1423 has confirmed that Approved Inspectors do not owe a duty of care under s.1 of the Defective Premises Act 1972.

Background

In our previous article, we revisited the landmark case of Murphy v Brentwood [1991] UKHL 2 and the circumstances in which those exercising building control functions can be held liable for negligently signing off on defective plans.

In Herons Court, the Court of Appeal considered the liability of those exercising building control functions under s. 1 of the Defective Premises Act 1972 (the DPA), specifically in the context of an Approved Inspector (AI). This is a topic of particular interest following the tragic events at Grenfell Tower in June 2017, and the surge in post-Grenfell cladding related claims.

S.1 of the DPA imposes a duty on those “taking on work for or in connection with the provision of a dwelling” to ensure that the work carried out is done in a workmanlike, or professional manner, so that the dwelling is fit for habitation when completed.

The central issue in Herons Court was whether the Respondent AI had incorrectly certified a block of flats as compliant with the building regulations, in breach of the DPA. This was in circumstances where the lessees had raised various compliance issues, including fire safety breaches.

Decision

The Court of Appeal held that s.1 of the DPA does not apply to AIs, and that it applies only to those who positively contribute towards the creation of a dwelling (ie contractors, architects and engineers).

By contrast, building control ensures that the dwelling is legal and properly certified, but does not positively contribute to the provision of a dwelling. The Court further clarified that (1) an AI has no statutory power to order changes to be made to plans for works, and (2) an AI’s role is limited to the negative regulatory role of checking the compliance of an existing building against a set criteria. It was therefore concluded that an AI’s function is far removed from the “provision of a dwelling” within the meaning of s.1 of the DPA.

The Court confirmed that although Murphy v Brentwood did not specifically deal with s.1 of the DPA, it is a “highly persuasive authority that a local authority does not owe a duty under s.1 DPA 1972 in the exercise of its building control functions”.

Notwithstanding the differences between AIs and their local authority counterparts, it was concluded that in the context of liability under s.1 of the DPA, and the application of Murphy v Brentwood, no distinction can be drawn between the position of a local authority, or an AI, performing building control functions.

Comment

AIs and insurers will welcome this decision as authority on the scope of duty owed under s.1 of the DPA. It has reaffirmed the position in Murphy v Brentwood and, therefore, leaves significant hurdles for claims against AIs under the DPA.

As highlighted in our previous article, however, a key difference between local authority building control and AIs is that AIs are engaged under a professional appointment. Therefore, whilst Herons Court limits the scope for claims under the DPA, a party with a direct contractual relationship with an AI will still have the ability to bring an action for losses it may have suffered.

It has been reported in the press that, since Grenfell, Approved Inspectors have struggled to find insurance cover and, as a result, a number have been forced to stop work. It remains to be seen whether or not this decision will change insurers’ appetite, or willingness, to provide cover for Approved Inspectors.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.