Approved Inspectors do not owe duties under the Defective Premises Act 1972

On 14 August 2019 the Court of Appeal handed down a judgment, in The Lessees and Management Company of Herons Court v Heronslea & others, which will have a significant impact on many combustible cladding related claims.

The underlying claim concerns a block of flats in Hertfordshire which, the Lessees and Management Company (L&MCo) allege, fails to comply with the Building Regulations 2010 and which suffers from fire prevention and safety (amongst others) issues. L&MCo issued a claim against several parties, including the private approved inspector (AI) that provided building control services (inspection and certification) for the original construction of the flats. The central issue in this appeal was whether the AI owed a duty to the tenants of the block under the Defective Premises Act 1972 (DPA).

It is well established law (Murphy v Brentwood 1990) that local authority building inspectors do not owe any duty in negligence to prevent economic loss to building owners caused by a defect in a building which has resulted in it failing to comply with the Building Regulations. In the Herons Court case the court held that an AI performing these type of building control services does not fall with the scope of the DPA because it does not positively contribute to the creation of the dwelling in the same way as the contractor or an architect or engineer. The court also commented that the Murphy v Brentwood decision strongly suggested that no distinction can be drawn between the position of a local authority inspector and an AI.

The result is a further clear indication that, in the absence of a contractual relationship, claims against an AI will be extremely difficult to pursue.