Jenson & Anor v Faux (Rev 1)

Section 1(1) of the Defective Premises Act 1972 concerns work undertaken for or in connection with the provision of a new dwelling. Ordinary extension, refurbishment or improvement of an existing dwelling does not suffice. The work must be so extensive that it provides a dwelling whose identity is wholly different from the old one. Cost and extent are not decisive by themselves. Limited work may qualify if it creates a separate dwelling, while extensive work to an existing house may not. Where the evidence cannot support the conclusion that a new dwelling was provided, and any factual disputes are peripheral, the issue may properly be determined summarily.

Mr and Mrs Jenson purchased a house after the defendant had arranged extensive building works, including the excavation and waterproofing of a new basement. They alleged that defective waterproofing caused repeated water penetration and brought a claim under section 1 of the Defective Premises Act 1972, although they had no contract with the defendant.

The defendant applied for summary judgment, arguing that the Act applied only to the provision of a new dwelling and that the property remained the same dwelling after the works. Ramsey J held that whether a new dwelling had been provided was a question of fact and degree and was sufficiently arguable to require a trial. The issue on appeal was whether that conclusion was sustainable.

The appeal was allowed unanimously. Lord Justice Longmore gave the judgment, with Lord Justice Etherton and the Master of the Rolls agreeing.

1. Statutory scope. Section 1(1) of the Defective Premises Act 1972 is directed to work undertaken for or in connection with the provision of a new dwelling. The reference to erection, conversion or enlargement does not make every improvement or enlargement of an existing dwelling subject to the statutory duty. The Court of Appeal treated Saigol v Cranley Mansions as binding and applied its requirement that the resulting dwelling must have an identity wholly different from the old one [10]-[13].
2. Application of the identity test. The works did not meet that threshold. Although the loft and cellar had been substantially altered, the ground and first floors remained approximately the same in area and use. The fact that the works were extensive or cost £400,000 was not decisive. A whole additional floor would not necessarily suffice, whereas a smaller project creating a separate one-floor dwelling might qualify [17]-[18].
3. Summary determination. The disputed matters concerning the footprint and the proposed cross-examination were peripheral. Photographs and detailed plans already showed the relevant position. A trial would not put the trial judge in a materially better position to decide whether a new dwelling had been provided. It was therefore appropriate to determine the issue immediately and avoid further expense [19]-[20].

• Court of Appeal (Civil Division) — [2011] EWCA Civ 423: allowed the appeal and held that the works could not arguably constitute the provision of a new dwelling.
• High Court, Queen’s Bench Division, Technology and Construction Court — Ramsey J held that the issue was one of fact and degree and was sufficiently arguable to require a trial.