Articles

Defective Premises Act 1972 Claim

Date: March 13, 2009

Expertise: Property Damage

1. HHJ Toulmin CMG QC today handed down a judgment in the TCC which gives guidance on the approach to assessing fitness for habitation under the Defective Premises Act 1972 (“DPA”).

THE BACKGROUND

2. In 1999, the First Defendant, Huntsbuild Ltd (“Huntsbuild”) sought recommendations from the Second Defendant Richard Money Associates (“RMA”) as to the foundations to be built for a new build property.

3. RMA then provided a site investigation report and recommendations with regard to the depth of foundations, in particular, with respect to retained and newly planted trees.

4. However, in breach of NHBC Standards Chapter 4.2 “Building near trees”, the recommendations and, in particular, the plan of the foundations, did not specify the precise required depths of foundations to take into account the trees which had been removed from the site prior to construction of the house. In particular, a willow tree had been removed from within the planned footprint of the house.

5. The foundations were dug and the house was built. The Claimants, Mr and Mrs Bole, bought the newly built house.

6. The house then developed cracking.

7. Mr and Mrs Bole sued Huntsbuild for breach of contract and breach of s.1 of the DPA. They sued RMA for breach of s.1 DPA.

8. The Judge found that the house suffered cracking because of heave. The heave occurred because of the inadequate foundations. The foundations were inadequate because they did not take account of the trees that had been removed from the site prior to construction of the house.

DPA

9. S.1(1) DPA states: “A person taking on work for or in connection with the provision of a dwelling (whether a dwelling is provided by the erection or the conversion or enlargement of a building) owes a duty … 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.”

10. HHJ Toulmin CMG QC referred to and analysed:

(i) The Law Commission Report (Law Com No. 40) entitled “Civil Liability of Vendors and Lessees for Defective Premises” which led directly to the DPA; and

(ii) The previous authorities including:

(a) Batty v. Metropolitan Property Realisations Ltd [1977] 7 BLR 1 (CA)

(b) D&F Estates Ltd v. Church Commissioners for England [1989] 1 AC 177 (HL)

(c) Andrews v. Schooling [1991] 3 All ER 723 (CA)

(d) Thompson v. Clive Alexander [1992] 59 BLR 87 (TCC)

(e) Bayoumi v. Protim Services Ltd [1996] 1 WLR 785 (CA);

(f) Mirza v Bhandal 22.4.99 (QBD); and

(g) Alderson v Beetham [2003] 1 WLR 1686 (CA)

and gave the following guidance:

GUIDANCE

“ 37. On the basis of the authorities, it is not necessary, as contended for by the Second Defendant [RMA], that a finding that the premises are in imminent danger of collapse is a necessary precursor to making a finding under the DPA that a dwelling house in unfit for human habitation.

38. I conclude on the authorities that I must construe the Act with the following considerations in mind:

i) The finding of unfitness for habitation when built is a matter of fact in each case.

ii) Unfitness for habitation extends to what Lord Bridge described as “defects of quality” rendering the dwelling unsuitable for its purpose as well as to “dangerous defects”.

iii) Unfitness for habitation relates to defects rendering the dwelling dangerous or unsuitable for its purpose and not to minor defects.

iv) Such a defect in one part of the dwelling may render the dwelling unsuitable for its purpose and therefore unfit for habitation as a dwelling house even if the defect does not apply to other parts of the dwelling. This is also the case under the Housing Act – see Summers v Salford Corporation.

v) The Act will apply to such defects even if the effects of the defect were not evident at the time when the dwelling was completed.

vi) In considering whether or not a dwelling is unfit for habitation as built one must consider the effect of the defects as a whole.”

CRACKING

11. HHJ Toulmin CMG QC then analysed the evidence of the cracking and its impact on Mr and Mrs Bole and said: “179.In all the circumstances, applying the test of whether the house was unfit for habitation in the sense of being unsuitable for its purpose, I have no hesitation in finding that the house, as built, was unfit for habitation under section 1 of the DPA in that it was built with unstable foundations which resulted in movement and cracking and other defects caused by heave.”

12. He therefore gave judgment for the Claimants against both Defendants.

ESSENTIAL READING

13. Bole and Van den Haak v. (1) Huntsbuild and (2) RMA is essential reading for anyone considering a claim under the DPA.

Daniel Crowley of 2 Temple Gardens acted for Mr and Mrs Bole instructed by Keith Gaston of Plexus Law. For further information or a copy of the Judgment please contact the Clerks at 2 Temple Gardens. Email clerks@2tg.co.uk. Tel. 020 7822 1200.

Copyright © 2009 Daniel Crowley. All rights reserved.

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