Suing the property professionals

The local authority is not liable to the claimant for giving planning approval for a defectively designed building the new building turns out to be defective, perhaps even unfit for human habitation.

The new owner complains. Nobody will accept responsibility so legal proceedings commence. The defendants may be the vendor, developer, architect, engineer, building contractor, the National House Building Council, the local planning authority, the building inspector or the government department.

The alleged defects under the Defective Premises Act 1972 may relate to fire safety, ventilation, sanitation, heating and insulation – or the building regulations may not have been complied with.

All those who worked in connection with the building work, supervised it or were involved in creating the building in a meaningful way will be potentially liable.

However, the structure must constitute a building for the purposes of the 1972 Act. But what about the ap- proved building inspector? They may be a local authority employee or drawn from the private sector.

Inspectors are required by statute to, for example, carry out their du- ties in a workmanlike manner, exercise reasonable and professional skill and care, and ensure the building work is properly carried out.

The inspector must certify the building work as it proceeds (if it proceeds satisfactorily). If a certificate is refused, the developer falls into breach and the local authority can serve a notice of contravention and enforce the regulations.

If the inspector fails to carry out their function properly and neglects their duty, they will be in breach of duty. However, this is a public duty – not a duty towards the individual.

The local authority is not liable to the claimant (as a planning authority) for giving planning approval for a defectively designed building.

The only remedy for the claimant seems to be a declaration that the duty has not been complied with; and an order against the inspector and the local authority (or other employer of the inspector) requiring the duty to be properly carried out.

The ongoing Grenfell Inquiry demonstrates the sort of issues likely to be raised, for instance:

• Who was in charge of the project?
• Was the proper procurement process followed?
• Were the experts and suppliers the correct choice?
• Did they have the appropriate experience?
• Was there any failure to comply with the regulations and guidance?
• Were the regulations and the fire safety guidance unclear or not sufficiently robust?
• Were the regulations known about or simply misunderstood?
• Were the certifications properly checked?

There is a tendency for everybody to blame somebody else and, in view of the problems of potential litigation, the importance of insurance can hardly be over-emphasised.

Solicitors should advise their clients accordingly. The impact of the premium will directly or indirectly end up with the lessee, but the protection for everybody along the line can be comforting.

There are also issues in relation to cladding. Who, for example, could be liable for replacement cladding? It would appear that the approved inspector and their employers, such as the local authority, will not be liable (Lessees and Management Company of Herons Court v Heronslea Ltd [2019] EWCA Civ 1423).

So those who authorised and installed the flammable cladding at Grenfell Tower look to be at risk, especially if they broke the regulations. Possible liability may be founded on defective design, lack of sprinklers, and only one staircase for evacuation.

Were the solicitors acting for the purchasers of the apartments negligent? Somewhat curiously, the inquiry chair Sir Martin Moore-Bick has produced a first report, dealing principally with the role of the fire service. He will produce a second report later, dealing with the cladding.

Many tower blocks will require recladding at huge expense (and a fire-watch in the meantime) and it seems that the lessees in the private sector will have to find the money through the service charge (estimated at a national average of £70,000 per apartment). Clarification of the issues of legal liability seems both desirable and necessary.

Alec Samuels is a barrister

Copyright & permissions