Herons Court, the Lessees And Management Company of v Heronslea Ltd & Ors

The Court of Appeal held that an approved inspector performing building control functions does not owe a duty under section 1(1) of the Defective Premises Act 1972. The court construed the phrase "work for or in connection with the provision of a dwelling" in context and concluded it focuses on those who positively contribute to the creation or provision of the dwelling (for example builders, architects and designers), not on inspectors whose role is to check compliance with building regulations. The court treated the statutory building control regime (the Building Act 1984 and the Building Regulations and the Approved Inspector regulations) as central to the context and relied on the House of Lords decision in Murphy v Brentwood District Council [1991] 1 AC 398 as strongly persuasive that local authority inspectors are not within s.1(1); no meaningful distinction was found between local authority inspectors and approved inspectors. Consequently the TCC’s strike-out of the claim against the approved inspector was upheld.

The claimants were lessees and their management company who sued in relation to alleged defective construction of flats at Herons Court, seeking damages for remedial costs. Among the defendants was an approved inspector which had inspected and certified compliance with building regulations under contract with the developer. The approved inspector applied to strike out the claim against it on the basis that no duty arises under section 1(1) of the Defective Premises Act 1972 for persons performing building control inspections.

The issues before the Court of Appeal were (i) whether, on its natural and ordinary meaning, s.1(1) DPA 1972 extends to approved inspectors performing statutory building control functions under the Building Act 1984 and the Building (Approved Inspectors etc.) Regulations, and (ii) whether subsidiary considerations relied on by the judge supported a conclusion that no such duty exists.

The court examined the statutory and regulatory framework (including s.1 DPA 1972, Part II of the Building Act 1984, ss.47,49,50 and 51, and the Building (Approved Inspectors etc.) Regulations 2010 and the Building Regulations 2010). It concluded that the context of s.1(1) emphasises work which "is done" with proper materials and the bringing into existence or creation of the dwelling; accordingly the provision is aimed at those who carry out or directly prescribe the work of provision (builders, designers and supervisors), not at persons who perform the essentially regulatory task of checking legal compliance. The court noted that approved inspectors have no power to require modifications to plans or to impose conditions analogous to the local authority’s powers and are limited to certifying or refusing to certify and to issuing notices of contravention; enforcement powers remain with the local authority.

The court also gave weight to Murphy v Brentwood District Council [1991] 1 AC 398, observing that the speeches in that case treated local authority inspectors as not subject to s.1(1) and that there was no principled distinction between local authority inspectors and approved inspectors. For these reasons the court dismissed the appeal and upheld the strike-out of the claim against the approved inspector.

Appeal dismissed. The Court of Appeal held that on its natural and ordinary meaning s.1(1) of the Defective Premises Act 1972 does not extend to approved inspectors performing building control functions; the statutory context and the persuasive authority of Murphy v Brentwood District Council support that conclusion and there is no meaningful distinction between local authority inspectors and approved inspectors that would bring AIs within s.1(1).

Appeal from the Technology and Construction Court before Waksman J (strike-out judgment dated [2018] EWHC 3309 (TCC)). Permission to appeal was granted by Coulson LJ on 15 January 2019. This judgment is the Court of Appeal’s determination: [2019] EWCA Civ 1423.