ºÚ¶´ÉçÇø

Proposed changes to the ºÚ¶´ÉçÇø Regulations are under consultation. One objective is to help achieve zero-carbon targets, but there is a lot more in there, too. We shall have to wait to see the amendments that are eventually made, but a recent case reminds us that compliance is more than a legal exercise. If works are not compliant, there is a risk that major defects may exist, sometimes with serious consequences for the owner.

Take the case of R (Gresty & Gresty) vs Knowsley council. Peter and Ruth Gresty own their family home in Liverpool. They had substantial works carried out and obtained ºÚ¶´ÉçÇø Regulations approvals from their local council. Defects emerged, including serious structural defects, creating a risk of structural collapse, which was averted by the use of acrow props. The Grestys sued and obtained judgment against their builder but were unable to enforce that judgment.

The Grestys and their legal team turned their attention to the local authority, which had given ºÚ¶´ÉçÇø Regulations approval. This ground is well trodden in the courts, with the landmark decision of the House of Lords in Murphy vs Brentwood District Council in 1991 ruling out claims against a local authority in relation to ºÚ¶´ÉçÇø Regulations approvals.

In light of the Murphy case, the Grestys did not put in their claim on the basis of negligence. They sought a judicial review of the council’s decision not to accept responsibility for rectifying the defects and for putting their house in a sound and habitable state. They applied on the grounds of alleged infringement of their rights under Article 8 of the European Convention on Human Rights - which protects the right to respect for private and family life, one’s home and correspondence.

Having heard the arguments on each side, the court refused permission to seek judicial review. The decision in Murphy having closed the door on private law claims, the judge in Gresty held that there was no public law right created through the convention that might be used to force it open again.

When Murphy was decided, ºÚ¶´ÉçÇø Regulations inspections were the sole preserve of councils and the NHBC. That changed in 2005 and now many providers act as approved inspectors, who are engaged under contracts that normally impose duties of care and create liability for negligence.

It might be thought that the position is somewhat anomalous. The anomaly is difficult to justify and it may be that the issue will be revisited in the courts when a suitable case arises. We will have to wait and see.

It may be that the issue will be revisited in the courts when a suitable case arises

It is worth noting that the ºÚ¶´ÉçÇø Regulations consultation contains a proposal to remove the Warranty Link Rule, which requires, in the case of new homes, a warranty to be in place from a designated warranty provider before an approved inspector can be used. The proposal is motivated by a wish to increase the use of approved inspectors for new homes.

Of course, it is not all one-way traffic. Infringement of the regulations creates a liability on the part of the owner. Here, it is the local authority that is on the offensive and it has a range of weapons at its disposal.

First, it can serve an enforcement notice to require the removal or alteration of work that does not comply. This notice must be served within 12 months of the date of completion of the relevant work. The consultation contains a proposal to increase the period to three years, which would likely mean that more enforcement notices would be served.

Even after the 12-month time limit elapses, the local authority can, in appropriate cases, still use the second weapon in its armoury by applying for an injunction for the removal or alteration of any work that contravenes the regulations.

Finally, the local authority could prosecute for non-compliance. A fine of up to £5,000 can be imposed along with £50 for each day the contravention continues after the conviction. The consultation proposes a revamp of the penalties, suggesting fixed penalties, variable penalties (up to £5,000) and other measures.

The proposals, which are subject to consultation, will be of interest to many in the industry. Against the changing background, the need for compliance remains a constant, as does the need to ensure that you have adequate remedies in the event that those upon whom you rely to secure compliance fail in their duty.

Mark Clinton is a partner at Thomas Eggar