The Court of Appeal upheld the first instance decision of Waksman J ( EWHC 3309 (TCC),  BLR 401) in reaching this conclusion. Some occupiers living in a defective building which has been inspected by a private building inspector might very well think that inspectors have had a good 2019 in the courts, with the action against another one of their number in Zagora Management Ltd v Zurich Insurance Plc  EWHC 140 (TCC), 182 ConLR 180, also failing.
The facts of Herons Court v NHBC Building Control Services Ltd
Hamblen LJ, giving the only reasoned judgment in the Court of Appeal, did not need to expand on much of the background to the case. Waksman J at first instance explained a little more about the serious alleged defects to Heron’s Court in Shenley Hill, Radlett, and why the claim was brought in the first place.
Heron’s Court is a block of twelve flats built in 2012. On the claimants’ case, many things went wrong in their construction. The claimants alleged that there were up to 101 individual breaches of building regulations, especially in relation to fire resistance and water resistance for a number of the flats. The estimated cost of remedial works was in the sum of £2.3 million plus VAT. These works will require the residents to move out for six months; the cost of housing them for this period was estimated at £250,000. Neither Waksman J nor Hamblen LJ say how many times the building was inspected, or the reasons why these alleged defects may have avoided detection
The Claimant brought claims against the developer, the main contractor, the National House Building Council (‘NHBC’) (who provided a ‘buildmark’ insurance policy) and the approved inspector, Building Control Services Limited, a company related to the NHBC, alleging a breach of the statutory duty under section 1 of the Defective Premises Act 1972. This reads as follows:
(1) A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty—
(a)if the dwelling is provided to the order of any person, to that person; and
(b)without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;
to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.
The approved inspector applied to strike out the claim brought against it on the basis that the approved inspector did not owe a duty to the claimants under section 1 of the 1972 Act, not being “A person taking on work for or in connection with the provision of a dwelling”.
Hamblen LJ embarked on a detailed review of the history of the framework of building control and the enforcement of building standards, going back to the Public Health Act 1875. It was the Building Act 1984 which first made provision for the approved inspector regime whereby inspections could be carried out by third parties other than by local authorities. The function of an approved inspector, and more generally, the building control process, is to ensure that buildings do not contravene the building regulations: it is not to provide dwellings. Under section 1(1) of the 1972, “provision of a dwelling” suggests the “bringing of that dwelling into physical existence or its creation” (). The emphasis is on “those who do work which positively contributes to the creation of the dwelling” (). It does not extend to the negative role of building control. As a matter of statutory interpretation, an approved inspector is not included in the definition provided for in section 1(1).
Furthermore, although the decision in Murphy v Brentwood District Council  1 AC 398 was not directly on point, both Waksman J and the Court of Appeal regarded the decision of the House of Lords as providing strong support for this conclusion. A number of the judgments in that case assumed that local authorities did not owe a duty under section 1 of the 1972 Act. Hamblen LJ made it clear, as well, that the responsibilities of approved inspectors and local authorities “directly parallel one another” (). Drawing on this analysis, at  he stated that it followed that the House of Lords decision was persuasive authority against imposing a duty on approved inspectors.
It is noteworthy that section 38 of the Building Act 1984 anticipated that a breach of a duty imposed by building regulations would lead to the imposition of civil liability. This section has never been brought into force, however. At  of the first instance judgment, Waksman J noted that it gave “some indication” that there was to be a “freestanding regime for any civil liability”; this leans against interpreting section 1 of the 1972 Act so as to create a similar duty. This point was noted but not explored by Hamblen LJ. What the existence of section 38 does, however, is make attempts to extend either statutory or common law duties of care into its purview more difficult: Parliament has considered the point, but has not yet decided to make it part of the law.
Who inspects the building inspector?
Establishing civil liability against a building inspector has proved extremely difficult. The claimants in Zagora attempted to rely on the tort of deceit, but failed as they were unable to establish reliance. A number of recent cases have raised question marks as to how standards of building inspectors are maintained. The authorities are now leaning hard against doing this by imposing civil liability.