Build me up

This article outlines a number of common issues and pitfalls relating to the exercise and enforcement of the Building Regulations 2010 (as amended) (BR 2010) that conveyancers should take into account when acting for the purchaser of a residential property.

1. The availability of remedies against the council

When exercising statutory control over building operations, a local authority (LA) is not liable in negligence to a building owner or occupier for the cost of remedying a dangerous defect in the building resulting from the LA’s negligent failure to ensure that the building was designed or erected in conformity with the applicable standards prescribed by the building regulations or byelaws.

This principle was established by the House of Lords in Murphy v Brentwood District Council [1990] 2 All ER 908. It is illustrated by the case of R (on the application of Gresty and another) v Knowsley Metropolitan Borough Council [2012] EWHC 39 (Admin) in which the claimants brought judicial review proceedings seeking to challenge the council’s decision to refuse to accept responsibility for rectifying structural problems in their house, and to put it into a sound and habitable state.

In 2000, the council gave building regulations approval to the claimants for an extension to their home. In 2001, the claimants engaged a building contractor to carry out the works. The council’s building control officer inspected the works as they proceeded. In July 2002, the claimants obtained a report from an engineering consultant, who concluded that there had been “serious failures to comply with current building regulation standards together with some inferior quality workmanship”, and that “substantial remedial measures will be required in order to return the property to a mortgageable condition”. Despite obtaining a county court judgment for almost £80,000 against the building contractors, the claimants had not recovered any money from them.

The court refused the application for judicial review of the council’s decision to refuse to accept responsibility for rectifying structural problems in their house, and to put it into a sound and habitable state. In reaching this conclusion, the court took a number of factors into account, including the following.

First, there was no private law remedy, because there was no contractual relationship between the owner and the LA in relation to the discharge of its building regulations functions, and because the domestic courts have previously decided that it would not be appropriate to impose tortious liability on an LA for negligence in the performance of its building regulations functions.

Second, there was no public law duty, because the legislature has decided, in the context of privately owned dwellings, that the balance should be struck against imposing on LAs either a positive obligation to undertake repairs, or a positive obligation to fund the cost of such repairs.

Third, the house was not in a dangerous condition or liable to collapse so as to prevent the claimants and their family from occupying it as a family home; also,there was no indication that the other risks or defects were not matters which, by themselves, could not be remedied by the claimants, or again, which were or had been so dangerous as to prevent occupation.

Finally, the direct cause of the structural defects was undoubtedly the builder’s poor workmanship, and his supervening inability or unwillingness to honour the judgment against him. The culpability of the defendant’s building control officer was essentially a secondary responsibility.

2. Insurance considerations

Building regulations indemnity policies usually require that:

• the unauthorised works were completed at least 12 months prior to commencement of the policy;
• the LA has not been alerted to the works;
• the dwelling has had continued residential use;
• no enforcement action has been taken or threatened;
• the survey report contains no indication of any problems with the works, in particular structural defects; and
• any additional works carried out to the property after the policy commencement date are approved by the insurers before commencement.

When major works are carried out to a property, the buildings insurers must be made aware of the resulting alterations. Making changes to the size or number of rooms of a home may affect the insurer’s view of the potential risk of the property. Structural alterations carried out without building regulations approval or a completion certificate should also be disclosed to the building’s insurer, just in case an insurance claim later needs to be made on account of damage that is caused to the building as a result of those alterations.

3. Regularisation certificates

Under regulation 18 of the BR 2010, where works were carried out without building regulations consent on or after 11 November 1985, the property owner can apply to the LA for a regularisation certificate. On receipt of an application for a certificate, the LA “…may require the applicant to take such reasonable steps, including laying open the unauthorised work for inspection by the authority, making tests and taking samples, as the authority think appropriate to ascertain what work, if any, is required to secure that the relevant requirements are met” (see regulation 18(3)). In practice, the LA could make a request to expose, as appropriate, the drains, foundations or other structural elements.

If satisfied that such requirements have been satisfied, the LA may issue the regularisation certificate. The certificate is evidence (but not conclusive evidence) that the said building regulations requirements specified in the certificate have been complied with.

Alternatively, the LA may notify the applicant:

• of the work which is, in its opinion, required to comply with the relevant requirements or those requirements as dispensed with or relaxed; or
• that it cannot determine what work is required to comply with the relevant requirements or those requirements as dispensed with or relaxed (see regulation 18(4)).

In the former case, when the specified works are carried out, the council may then provide the regularisation certificate.

4. Completion certificates

Regulation 17 of the BR 2010 requires an LA to give a completion certificate in all cases where it is satisfied, after taking all reasonable steps, that, following completion of building work carried out on it, a building complies with the “relevant provisions”.

The relevant provisions are any applicable requirements of the building regulations that apply to a range of matters, such as:

• energy performance certificates;
• structure;
• fire safety;
• resistance to the passage of sound;
• ventilation;
• drainage and waste disposal;
• conservation of fuel and power;
• access to and use of buildings;
• glazing; and
• electrical safety.

A completion certificate shall be evidence (but not conclusive evidence) that the requirements specified in the certificate have been complied with. The certificate must include a statement describing its evidentiary effect.

5. Building control enforcement

Where there has been an infringement of building regulations, the LA is subject to a 12-month “limitation period” with regards to service of a notice under section 36(1) of the Building Act 1984 (BA 1984) requiring the removal or alteration of the non-compliant works; this period starts on the date of completion of the works.

There is no limitation period on the LA’s right to seek an injunction under section 36(6) of the BA 1984 for removal or alteration of unauthorised or non-compliant works.

However, section 36(6) also provides that if:

• the work is one in respect of which plans were deposited;
• the plans were passed by the LA, or notice of their rejection was not given within the relevant period from their deposit; and
• the work has been executed in accordance with the plans,

then “the court on granting an injunction has power to order the local authority to pay to the owner of the work such compensation as the court thinks just…”.

A person who contravenes any building regulations provision is, on summary conviction, liable under section 35 of the BA 1984 to a fine not exceeding scale 5 on the standard scale of fines (£5,000), and a further fine not exceeding £50 for each day on which the default continues after the individual is convicted.

The time limit for prosecuting an offence under section 35 in the magistrates’ court is:

• within two years of the date on which the offence was committed; and
• within six months of the date on which evidence sufficient to justify the proceedings comes to the knowledge of the person commencing the proceedings (under section 35A of the BA 1984, inserted by section 13(1) of the Climate Change and Sustainable Energy Act 2006).

Dangerous structures

If a building or structure is dangerous, the LA can apply to a magistrates’ court for an order under section 77 of the BA 1984 requiring the property owner to undertake specified works that would obviate the danger. If the owner fails to comply with the order, the LA may execute the required works and recover the expenses reasonably incurred by it in doing so from the person in default. That person would also be liable, on summary conviction, to a fine not exceeding level 1 on the standard scale (£200).

However, if emergency measures are needed to remove the danger posed by a dangerous building, the LA is empowered under section 78 of the BA 1984 to take such steps as may be necessary for that purpose. Before carrying out such works, the LA is required, if it is reasonably practicable to do so, to give notice of its intention to the owner and occupier of the building. The LA may recover from the owner the expenses reasonably incurred by it.

Reported cases

There are few reported cases where councils have taken enforcement action against homeowners for a building regulations infringement.

R (on the application of Bello) v Lewisham London Borough Council [2003] EWCA Civ 353 concerned a rear extension Mr Bello built to his premises in 1988, without obtaining the appropriate planning and building regulations permissions. Also in 1988, the council served a demolition notice under section 36(1) of the BA 1984, requiring Mr Bello to remove the extension. The council’s contractors decided at the time not to demolish the structure, as Mr Bello had informed them that his workmen would remove it. However, the notice was not complied with. In 2000, the council decided to enforce the demolition notice.

The Court of Appeal held that the council had not acted unlawfully when it decided to enforce the notice several years after it was issued and Mr Bello had suffered no resulting prejudice.

Enforcement priorities

Bristol City Council, for instance, in appendix A to ‘The Council’s Approach to Enforcement of the Building Regulations and Allied Legislation’, outlines three enforcement priorities:

• urgent –  where the works involve “life threatening risks”;
• high priority – where there is significant risk to the public or to support coordinated activity; and
• low priority – smaller scale infringements.  

Examples of priorities falling within the “urgent” category include unauthorised alterations to means of escape (all building types); structural alterations (all building types); and works involving loft conversions or flat conversions.

6. Risks in respect of leasehold properties

Leaseholders who carry out works to their flat without complying with building regulations may become the subject of a tribunal determination, under section 168 of the Commonhold and Reform Act 2002, that there has been a breach of a tenant covenant in the lease requiring such compliance. Such determination would then pave the way for the landlord to forfeit the lease on account of that breach.

For instance, in Ilkley Court Freeholders Ltd v Simah CHI/00ML/LBC/0010, the Leasehold Valuation Tribunal (LVT) made a determination that the tenant of a flat had committed a number of breaches of tenant covenant, one of which consisted of removing, and later reinstating, an internal partition wall without the landlord’s consent; the lessee failed to produce a building regulations approval or completion certificate for either. The LVT determined that removal and reinstatement represented a breach of the tenant covenant in the lease “to do all such works as under any Act of Parliament or rule of law are directed or necessary to be done on or in respect of the Flat…”. The tribunal also expressed particular concern over the lack of building regulations approval in respect of fire precautions.

Use of advisers

There may also be adverse consequences for the landlord of a building comprising flats where works have been carried out to the building in breach of building regulations. The landlord may have sought advice on building regulations compliance, but the adviser may not have been the most qualified person to give that advice.

For example, in Vaddaram v East Lindsey District Council MAN/32UC/HIN/2010/0028, the landlord appealed against a prohibition order and improvement notice issued under schedules 1 and 2 to the Housing Act 2004 by the LA on account of certain hazards at the property. One crucial issue for the LVT to determine was whether the property, which had been converted into four self-contained flats, had an adequate means of escape in the event of fire.

There had been inspections of the flats by three different persons. In 2010, the respondent’s independent building regulations consultant inspected the property and confirmed that the windows to the rear flat met the legal requirements for fire escape windows. In 2002, a fire safety officer commented that the layout of the bedroom at the rear of the first-floor flat was not compliant with the then in force Fire Precautions Act 1971. And in 2010, a council housing officer inspected the first- and second-floor flats, and found that they both presented a significant fire risk.

The LVT dismissed the appeal against the prohibition order issued in respect of the ‘category 1’ fire hazard (as defined by the Housing Act 2004). In doing so, it acknowledged that compliance with building regulations was a material consideration in its determination. Given the significant fire hazard, the LVT decided that the evidence of the fire safety officer carried more weight than that of the respondent’s building regulations consultant; the fire safety officer had been “explicit about the unsuitability of the layout from the perspective of a fire hazard and that an alternative escape should be found which did not require an occupant to pass through a kitchen”.

Retrospective licence

Finally, as Bowd v Bernard Construction Ltd LON/00BE/LAC/2008/0110 demonstrates, the landlord may be prepared to grant a retrospective licence for alterations carried out to a flat, albeit at a cost, if building regulations have been complied with.

 The applicant purchased a one-bedroom flat, which included a mezzanine floor that was accessed by a ladder. In 2008, the mezzanine was pulled down and rebuilt on advice from builders that it was unsafe, “as it was only attached to a partition wall rather than the struts inside the wall”. After an inspection by a structural engineer and installation of an integrated smoke alarm system, the applicant received a regularisation certificate from the local council. The applicant later received a ‘retrospective’ licence for alterations, which included amendments to the lease plans to reflect the alterations (some of which had been structural in nature). The licence was issued at a cost of £2,500, and the landlord’s solicitor’s costs of £587 including VAT.

The LVT found that the landlord was entitled to make a charge for the licence for alterations and in respect of its solicitors’ fees, and that the charges made were not unreasonable. In particular, the LVT took into account that the floor area of the mezzanine was bigger than that on the original plans for the flat, and was not part of the original structure; and that the alterations had increased the property from a one- to a two-bedroom flat.