Bole & Anor v Huntsbuild Ltd

For the purposes of permission to appeal, the meaning of “fit for habitation” in section 1(1) of the Defective Premises Act 1972 raised an arguable point of general importance. Fitness need not necessarily be assessed item by item: defects may be considered cumulatively and in the round. However, a court should address more specifically whether the relevant defects, individually or together, satisfy the statutory test. The Court of Appeal did not finally determine that question. It granted permission because the existing authority was sparse and the relationship between fitness for habitation and suitability for purpose required full consideration.

The appellants, structural engineers retained in connection with the construction of a dwelling, faced a claim under section 1(1) of the Defective Premises Act 1972. The first defendant builder had gone into liquidation and did not participate in the trial.

The Technology and Construction Court found that inadequate foundations had caused heave, movement, cracking and other defects. Although the risk of collapse was low, the judge held the house unfit for habitation and awarded approximately £218,000 for underpinning and consequential matters. The structural engineers sought permission to appeal, challenging the approach to the statutory test and the treatment of individual defects. The renewed application concerned whether those issues were arguable and of sufficient general importance.

1. Permission granted. The application was a renewed application for permission to appeal from the Technology and Construction Court.
2. Section 1(1) of the Defective Premises Act 1972 imposes a duty concerning work undertaken for or in connection with the provision of a dwelling, including that the dwelling be fit for habitation when completed. The precise meaning and effect of that requirement had generated surprisingly little authority.
3. The judge’s reference to the need for the occupants to move out for up to six months was not, in itself, a basis for finding unfitness. It was capable of being treated as an indication of the extent of the defects.
4. The Court of Appeal considered that a dwelling’s fitness may be assessed to some extent in the round. It was not necessary to decide that every pleaded item, considered separately, caused unfitness. Nevertheless, where there was no immediate risk of collapse and only relatively limited items caused potential danger, it was arguable that the court should analyse more specifically whether the defects, individually or cumulatively, satisfied the statutory test.
5. The judge had relied on comments by Lord Bridge in D&F Estates v Church Commissioners for England [1989] 1 AC 177. That case was not decided under the Act, although it included observations concerning the Act and the Law Commission report preceding it. The Court of Appeal identified an arguable issue as to whether those observations had been taken out of context or treated as adopting a Law Commission formulation which Lord Bridge had not expressly adopted.
6. Because the issue was arguable, concerned the construction of a statutory requirement and was of general importance, full consideration by the Court of Appeal was justified. The order was: application granted.

• Court of Appeal (Civil Division): on 15 June 2009, the renewed application for permission to appeal was granted.
• High Court of Justice, Queen’s Bench Division, Technology and Construction Court: HHJ Toulmin CMG QC held that the dwelling was unfit for habitation under section 1(1) of the Defective Premises Act 1972 and awarded approximately £218,000. The judgment’s citation was not stated.