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This article was authored by Nikita Singh, Trainee Solicitor.
Mrs Justice Jefford (Jefford J) of the Technology and Construction Court (TCC) takes a second look at the operation of the Defective Premises Act 1972 (DPA) in her recent judgment of Vainker & Anor v Marbank Construction Ltd & Ors [25.03.24]. The ruling highlights the importance of adopting a case by case approach when interpretating the DPA and considers how its application has been further expanded by the Building Safety Act 2022 (BSA).
Background
The claimants, Mr and Mrs Vainker, had engaged SCD Architects Ltd (SCD), as architect, for design purposes pursuant to an unsigned RIBA architectural appointment and Marbank Construction Ltd (Marbank), as the contractor under a JCT building contract executed under seal, for the construction of a residential property in Twickenham. The property works began in 2013 and practical completion was certified in May 2014. During the build, complaints were made about the state of the brickwork and water ingress, and these complaints (together with an extensive snagging list) continued post-practical completion.
The claimants claimed against Marbank and SCD architect in respect of defective workmanship and professional negligence by way of breach of contract, tort and breach of section 1 of the Defective Premises Act 1972 (DPA).
The liability periods for the claims against Marbank and SCD were different in light of the differing contracts in place. While the claimants were out of time in bringing a claim in tort against Marbank, a contractual claim relating to the brickwork defects was not time-barred and Marbank was liable to pay damages to the claimants for breach of contract. Contractual and tortious claims against SCD and any tortious claims against Marbank were out of time. Therefore, much of the case focused on bringing a claim against SCD and Marbank under the DPA as amended by the Building Safety Act 2022.
Jefford J found for the claimants against both Marbank and SCD.
Of note, SCD was found liable for failing to notice inadequacies in staircase balustrades installed by Marbank. This, according to Jefford J, rendered the property unfit for habitation under the DPA because it posed a health and safety risk. SCD had argued that replacing the balustrades would be disproportionate. Merely installing a handrail would alleviate the danger and render the property fit for habitation. Jefford J rejected this suggestion as it would be contrary to the design intent of the property and affect its aesthetics, stating that "the recoverable damages should … be the cost of making the dwelling fit for habitation in the way it would have been had the services been supplied in a professional manner."
‘Fit for Habitation’ under Defective Premises Act 1972 (DPA)
Under Section 1 of the DPA, work must be carried out in either a workmanlike or professional manner, with proper materials, so that the dwelling is fit for habitation on completion.
It was confirmed by Jefford J that the leading case for ‘fit for habitation’ under the DPA remains Rendlesham Estates Plc v Barr Ltd [2014].
Jefford J went on to analyse Section 1 of the DPA in the context of the facts of the case and in light of the findings of Rendlesham. She confirmed as follows:
- The question of ‘fitness for habitation’ is fact sensitive and the design intention should be considered. For example, in this case, it was relevant to take into account that the property was intended, not only to be a new build, but to be modern in design.
- It is unlikely that an aesthetic or inconvenient defect would render a property unfit for habitation. Although the aggregate effect of defects should be considered, minor or aesthetic defects which do not contribute to unfitness for habitation cannot be relevant in this consideration. For example, on the present facts, it was held that although the brickwork was not aesthetically pleasing, it did not amount to a breach of the DPA. However, using incorrect glass for balustrades without a handrail did breach the DPA, as it rendered the property unsafe/unfit for habitation.
- Damages cannot be recovered in respect of such a defect merely because other defects render the property unfit for habitation.
- There may be a breach of the duty in respect of a defect. This would mean that the condition of the property is likely to deteriorate over time and render the property unfit for habitation when it does so. In this case, the property was found to be unfit for habitation at the time of completion.
Limitation (Building Safety Act 2022 (BSA))
The BSA amendments extend limitation under the DPA.
Prior to the BSA, the limitation period to bring a claim under the DPA was 6 years from the date of completion of the works. This limitation period has now been extended to 30 years retrospectively for claims accruing before 28 June 2022 and to 15 years for claims accruing after 28 June 2022.
Net Contribution Clauses
SCD sought to rely on the net contribution clause contained in the RIBA architectural appointment. Jefford J held that the net contribution clause did not cover liability under the DPA pursuant to section 6(3). Under s.6 (3) of the DPA, any term of an agreement that attempts to exclude or restrict any provision of the DPA, or any liability arising from such attempts shall be void.
Measure of damages
If a breach of the DPA is found, damages are not limited to the ‘minimum necessary’ to put the property in a habitable condition. Instead, damages should be the cost of making the property fit for habitation in the way it would have been, had the services been supplied in a professional manner.
Comment
This is the first notable judgment since the BSA changes to the DPA. The Judge reiterated that Rendlesham was the leading authority to note when analysing the test for fitness for habitation. The judgment affirms that each case must be considered by its own facts on a case by case basis. However, it demonstrates that options for claims are now available if earlier limitation dates have passed given the extensions provided by the BSA.
Construction and engineering
Insurance and reinsurance
United Kingdom