Local authorities and Approved Inspectors in England and Wales carry out various functions under the Building Regulations to ensure compliance - this function is often referred to as ‘building control’.
The standards that a local authority or Approved Inspector is expected to achieve when performing its building control function are set out in guidance published by the former Department for Communities and Local Government (DCLG)(now the Ministry of Housing, Communities and Local Government (MHCLG).
But what happens when the local authority get it wrong?
An official complaint could be made to the Local Government and Social Care Ombudsman if the local authority has not carried out its function properly. Alternatively, legal action could be considered, however, the scope for legal action is very limited.
In most circumstances, a party will have no legal recourse against the local authority building control service, even if the local authority has failed to spot a defect during a site inspection or has approved defective work for example. This is because:
- There is no contract between the party taking the legal action and the local authority and therefore a claim for damages is not available;
- A party’s right to claim damages in tort (the branch of law that imposes civil liability for breach of obligations imposed by law) is limited;
In the case of Murphy v Brentwood District Council 1991 the House of Lords held that the defendant local authority, which negligently approved plans for footings for a house the claimant went on to purchase, did not owe a duty of care to the claimant in respect of the damages he suffered as a result of those defective footings. The damages suffered were neither material nor physical but purely economic and so the defendant local authority was not liable in negligence; and
- There is no statutory provision imposing liability on a local authority building control service in relation to the possible liability under the Defective Premises Act 1972.
The fact that a party has very limited recourse against a local authority emphasises the importance of establishing strong contractual links when procuring construction works. If works are defective, these contractual links form the simplest basis for claiming compensation.
What about when an Approved Inspector gets it wrong?
Claiming against an Approved Inspector faces similar difficulties to those encountered in making a claim against a local authority. However, there is some limited evidence that an Approved Inspector should be liable for damage caused to third parties.
For example, paragraph 12 of the then DCLG’s circular letter dated 21 December 2012 refers to an Approved Inspector's obligation to carry professional indemnity insurance (PII), stating that:
"This indirectly protects clients and others who may be adversely affected by any negligence on the part of the Approved Inspector, by ensuring that, subject to the limits on cover, the Approved Inspector has the financial resources to comply with any award of damages or out of court settlement."
Furthermore, although legal recourse against an Approved Inspector is limited, it is worth noting that:
- A building owner has the option of making a complaint to CICAIR Ltd, which is the body that maintains and operates the Construction Industry Council Approved Inspectors Register. Approved Inspectors registered with CICAIR Ltd have the necessary qualifications to undertake building control work; and
- Section 57 of the Building Act 1984 creates a criminal sanction for an Approved Inspector who gives a notice or certificate purporting to comply with the Building Act 1984, which contains a statement that they know to be false or misleading in a material particular, or does so recklessly.
Is change on the way?
Section 38 of the Building Act 1984 has never been brought into effect. If in force, it would give individuals the right to legal recourse where they suffer damage (which includes death of, or injury to, any person including any disease and any impairment of a person’s physical or mental condition) as a result of a breach of duty imposed by Building Regulations.
The fact that section 38 has never been brought into force is sometimes cited as a good reason for denying claims for liability on other grounds. This is on the basis that allowing such claims would sidestep the legislative regime which has deliberately decided not to bring section 38 into force.
The government, as part of its June 2019 consultation on building safety reforms, has asked for views on bringing section 38 into force. The consultation closes on 31 July 2019 and is likely to divide opinion. If the proposal does receive support, it is not clear when section 38 would be brought into force. A link to the consultation can be found here: Building a safer future: proposals for reform of the building safety regulatory system.
It is worth noting, however, that section 38 will provide for the government to set out prescribed defences to any claim made under it and it is not clear at this stage what those defences would be. It remains to be seen therefore whether much will change for a would-be claimant when building control get it wrong. Only time will tell.