Application of the Defective Premises Act duties to approve building inspectors

Herons Court v Heronslea Limited (2019), BLM, Court of Appeal

Fact

Heronslea Limited was the developer of a block of 12 upmarket apartments.  It appointed an Approved Inspector to inspect the plans for the work, provide supervision and finally issue a Certificate to confirm that the work has been carried out in accordance with building regulations.  The Claimant represented the lessees.  The Claimants brought a claim against several defendants, including both the contractor and the Approved Inspector, who was allegedly in breach of his duty to issue a Building Regulation Certificate with reasonable skill and care.

The High Court Judge rejected the claim against the Inspector on the basis that the Defective Premises Act 1972 would not apply.

Held by the Court of Appeal

1. The Defective Premises Act creates a duty on persons who have taken on work for or in connection with the provision of a dwelling, to do their work in a workmanlike or professional manner so that the dwelling will be fit for habitation. In other words, the duty falls on those who positively take on or carry out such tasks.  In contrast, all the inspector does is check to see whether such persons are doing their jobs properly.
2. Accordingly, the Defective Premises Act duty does not apply to the role of the Approved Inspector.

Comment

1. There is a very strong public policy against making building inspectors liable for the mistakes of designers and contractors. The policy intention appears to be that “the buck stops” with the person who created the problem rather than the person who could have picked up the problem by the certification process.
2. It has been established for some time (in cases such as Murphy v Brentwood) that claimants cannot sue building inspectors for negligence or negligent misstatement in respect of their carelessness in certifying.
3. Recently in Zagora Management v Zurich Building Control a building inspector who had deliberately and falsely certified certificates knowing that they were not compliant with the Fire Regulations nevertheless owed no duty of care in the tort of deceit, because he had not intended to mislead the complainants specifically. This demonstrates the extent to which the Courts have as a matter of policy ruled out imposing a liability on Approved Inspectors towards third parties injured by their negligent certification.

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