Do Approved Inspectors Owe A Duty Under S.1(1) Of The Defective Premises Act 1972 In The Exercise Of Their Building Control Functions?

Continuing in our series on the implications following the Grenfell Tower disaster, we consider the Court of Appeal judgment in The Lessees and Management Company of Herons Court v NHBC Building Control Services Limited [2019] EWCA Civ 1423 (handed down on 14 August 2019) on whether Approved Inspectors owe a duty under s.1(1) of the Defective Premises Act 1972 (the DPA 1972) in the exercise of their functions under Part II of the Building Act 1984 (the 1984 Act), which involved inspection and certification to ensure compliance with building regulations.

The Defective Premises Act 1972

S.1(1) of the DPA 1972 provides:

"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 -

if the dwelling is provided to the order of any person, to that person; and without prejudice to paragraph (a) above, to every person who acquires the 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 Facts

The Appellants are lessees of flats at Herons Court in Hertfordshire (Herons Court). The Respondent is an Approved Inspector under Part II of the 1984 Act. In 2012 the Respondent, on completion, had certified that the flats complied with the Building Regulations. The Appellants issued a claim asserting that the flats were not compliant with the Building Regulations and therefore the Respondent had breached its duty to the Appellants under s.1(1) of the DPA 1972.

The Appellants asserted (at first instance and on appeal) that:

on its natural and ordinary meaning s.1(1) of the DPA extends to Approved Inspectors because they take on work "in connection with" the provision of a dwelling; the Respondent's responsibility, to secure that Heron Court was built in compliance with building regulations, was work "in connection with" the provision of a dwelling; there is a distinction between Approved Inspectors, who voluntarily take on work to ensure compliance with the building regulations, and local authorities which have that duty imposed on them under Part I of the 1984 Act. The Respondent applied to strike out the claim on the ground that Approved Inspectors do not owe a duty in law under s.1(1) of the DPA 1972. The...