Imagine having your dream house built, but it subsequently turns out to be defective requiring substantial remedial works. Your claim against the builder succeeds but he goes bust leaving you significantly out of pocket.
The build was carried out under the auspices of Building Control which made periodic visits to ensure compliance with Building Regulations.
So, what are the chances of succeeding in a claim against Building Control for failing to discharge its statutory function?
In short, virtually nil.
It was the 1991 decision in Murphy v Brentwood District Council which considered the case of Murphy, whose house had been built on defective foundations and suffered structural damage as a result. Murphy sued the council for the diminution in value of the property. The House of Lords held that as a matter of policy it would not extend the duty to take reasonable care to local authorities where the loss was purely financial.
Fast forward to 2001, and Mr and Mrs Gresty embarked on an extension to their family home. Knowsley Metropolitan Borough Council performed the function of Building Control. The works were defective and the Grestys’ claim against their builder was successful, but they were unable to recover the £80,000 awarded to them.
A complaint to the Local Government Legal Ombudsman in 2002 was rejected, and then in 2011 a claim letter was sent to the council alleging breach of Article 8 of the Human Rights Act. This was on the basis that the failure to properly discharge its building control function meant that the council had failed to protect the Grestys’ right to a private and family life.
When the council denied liability the Grestys sought a Judicial Review of the performance of the council’s functions.
The action was rejected on the basis that:
- There was no contractual or tortious duty owed by the council
- There was no public law duty owed by the council because there was no statutory obligation on councils to repair private dwelling houses
- If the defects were so bad as to make the house uninhabitable, the council may have a positive duty in finding alternative accommodation
- Any negligence by the council was committed over a limited (rather than a prolonged) period of time
- The extent of the defects were not severe enough to impact on the Grestys’ family life
- Primary liability rested with the builder
COMMENT: Whilst the action may have failed due to limitation issues anyway, the decision demonstrates the limited duty owed by Building Control, which is likely to be frustrating for home owners who expect Building Control to ensure that works are carried out in accordance with Building Regulations. It also underlines the importance of establishing clear contractual duties and obligations with builders and designers in relation to construction works.
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