English Residential Building Law

English Residential Building Law – From Anns To Grenfell And Beyond Date: 15 November 2022 OVERVIEW - How has English law evolved over the last half- century in imposing liability for housing defects? - Contrasts Down Under - Anns = Anns v Merton LBC (HL, 1977); applies Dutton v Bognor Regis (CA 1972); both overruled by Murphy v Brentwood DC (HL, 1991) - NZ coda: Invercargill v Hamlin (PC, 1996) - Statutory intervention: e.g. BSA 2022 Anns Background - 1960s two-story marionettes in block in London SW19; claimed to have inadequate foundations - Claimants = long lessees - Limitation issue: often a key obstacle (Martlet v Mulalley) - Issue for HL: potential liability of local authority - Public Health Act 1936 gave each local authority power - not duty - to adopt byelaws regulating construction in their area - Statute says nothing positive or negative about liability consequences Anns Context - Relevant legal framework comes from principles developed by judges: 'the common law' [no reliance on DPA 1972] - Tort or nothing? - Claimants: never construction employers, some not around when construction took place, now have well-founded grievances against those factually responsible for block's build quality - 'Secondary' defendant - If contract only legal way forward, may have no rights they can assert in court Anns Other Possibilities - 1. Insurance - 2. Government initiatives – offering cash or mobilizing developers to pay up - 3. New statutory intervention Anns Issues For The Law Lords - Q1 Criteria for imposing a duty of care? - Q2 Satisfied in relation to this claim? - A1 Proximity between local authority and respondents: are they its neighbors in law? - A2 Any factors arguing against a duty of care, or in favor of a limited duty, in this situation? Murphy v Brentwood (HL) - Did Brentwood DC owe duty of care to later purchaser of house with foundations underdesigned? - Seven judges reclassify harm for which claimants in Anns wanted compensation as 'pure economic loss' - Duty of care requires claimant to show not just reasonable foreseeability but defendant in 'special relationship' with claimant and those in their position for functions undertaken - Had current claimant reasonably relied on Brentwood not to be negligent - No serious head-on challenge Invercargill v Hamlin (PC, 1996) - Judges validate NZ's attachment to Anns v Merton - NZCA awarded Noel Hamlin damages for cost of remaking foundations of bungalow, City's inspectors having failed to notice actual depth only about half what plans and byelaws required - NZSC: Statutory building control is for benefit of building owners and users: where negligence results in building being non- compliant, person or body responsible owes duty of care, measured by cost of making building compliant or drop in value Final Points - Current English (and Scots) version of the common law fails many homeowners - E.g. those who have no right of action in contract and whose homes when new would have been in breach of any developer's construct-and-transfer off-plan sale contract, or remain in breach of mandatory external standard - Result: an unfilled legal gap - DPA also fails many homeowners - Australian tort law: narrow view of construction situations giving rise to duty of care in relation to defects - But all states and territories (except WA) impose mandatory contractual obligations on 'the builder' in residential situations; benefit of these 'statutory warranties' (in contractual, not insurance, sense) transmitted current building owner(s)