Can I Sue the Building Control Officer?

This is a question often asked by clients when they are faced with defective building works on their home and for one reason or another it is not possible to sue the builder or recover damages from them.

The recent decision in R (Gresty & Another) v. Knowsley Metropolitan Borough Council has confirmed that there are only very limited circumstances when it would be possible to bring a claim against a local authority when the building inspector fails to spot defective construction works in carrying out its building control function under the Building Regulations.

In this particular case, Mr and Mrs Gresty engaged a building contractor to carry out an extension to their home. The original plans were submitted to the Council for Building Regulations approval and the building control officer inspected the works as they proceeded. However, it soon became apparent that the building works were defective and that extensive remedial works were required. Mr and Mrs Gresty obtained a Judgment for £79,775.64 against the builder. However, they were unable to recover this amount due to his financial position.

As a result, Mr and Mrs Gresty sent a formal letter of claim to the Council alleging that the Council was guilty of maladministration and a failure to discharge its statutory duties which amounted to a breach of Article 8 of the European Convention on Human Rights being the right to respect for private and family life. The Council denied that Article 8 applied and the homeowners sought permission to apply for judicial review.

Whilst the Court accepted that the local authority may, in certain situations, have a positive obligation under Article 8 to deal with defects in a family home, the decision to refuse permission shows that this will only apply in limited circumstances. In this particular case, the Court considered a number of facts in deciding that there was no positive obligation. These included:

- There was no remedy in contract or in negligence.

- There was no public law duty. The legislature had decided had made a decision that local authorities should not be obliged to repair privately owned homes.

- If living conditions were intolerable, the local authority would have an obligation to act under its homelessness legislation.

• The Council did not perform their duties over a prolonged period of time with full knowledge that the failure was having serious consequences for the claimants.

- Notwithstanding the difficulties, the family had lived in the home together as a family unit.

- The direct cause of the defects was the builder`s poor workmanship and his supervening inability or unwillingness to honour the Judgment.

The case highlights the need to ensure that when having building works carried out there is a contract in place with the builder which will protect you if faced with defective works. It is also a reminder of the need to ensure that, so far as possible, the builder is financially stable so that if the works do not go according to plan they can afford to carry out any necessary remedial works, or, worst case scenario, can meet any Judgment which you may obtain against them.

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.