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

The duty under section 1(1) of the Defective Premises Act 1972 applies to persons whose work positively contributes to the creation of a dwelling. It may cover architects and engineers who prescribe how the dwelling is to be created, as well as those who undertake its physical construction.

An approved inspector performing statutory building-control functions does not owe that duty. Inspection and certification constitute a regulatory check against prescribed requirements. They do not positively contribute to the dwelling's provision, even though they concern its legality and compliance with building regulations. The materially parallel position of local authority building inspectors supports the same conclusion.

The lessees of flats at Herons Court and their management company claimed damages arising from alleged construction defects which were said to make the flats unfit for habitation. The fourth defendant was an approved inspector engaged by the developer to provide statutory building-control inspection and certification services.

Waksman J struck out the claim against the approved inspector, holding in [2018] EWHC 3309 (TCC) that it owed no duty under section 1(1) of the Defective Premises Act 1972. The claim alleged no special role or freestanding common-law duty.

The central issue on appeal was whether an approved inspector performing functions under Part II of the Building Act 1984 takes on work “for or in connection with the provision of a dwelling” within section 1(1) of the 1972 Act.

1. Appeal dismissed. An approved inspector performing statutory building-control functions does not fall within section 1(1) of the Defective Premises Act 1972. Hamblen LJ gave the judgment, with which Floyd and Lewison LJJ agreed.

2. Section 1(1) must be read as a whole. Its references to the manner in which the work is done, to proper materials and to the “provision” of a dwelling focus on work which positively contributes to bringing the dwelling into physical existence. The provision may include professional design work by architects and engineers, as well as physical construction. The phrase “in connection with” takes its meaning from that statutory context and does not necessarily bear its widest possible meaning.

3. An approved inspector performs an essentially negative regulatory role. The inspector checks plans and work against prescribed legal requirements and may refuse certification for non-compliance. The inspector has no statutory power to direct the design or construction, impose conditions, prescribe modifications or undertake enforcement. Those functions therefore do not positively contribute to the dwelling's provision or creation.

4. Section 1(4) supports that construction. It expressly treats developers who arrange for others to undertake the relevant work as persons who have taken on the work. That extension was required because the duty otherwise focuses on those undertaking work involved in providing the dwelling.

5. Murphy v Brentwood District Council [1991] 1 AC 398 provided powerful additional support. Its result and reasoning strongly indicated that a local authority does not owe a section 1 duty when exercising building-control functions. The statutory functions of local authorities and approved inspectors directly parallel one another. Their differences generally give local authorities greater powers, so no material distinction justified imposing the alleged duty only on approved inspectors.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The approved inspector owed no duty under section 1(1) of the Defective Premises Act 1972.
2. High Court, Technology and Construction Court: Waksman J granted the approved inspector's strike-out application and held in [2018] EWHC 3309 (TCC) that no section 1(1) duty was owed.