Defective premises – Unfit for habitation – Defective Premises Act 1972 – Claimants purchasing house from first defendant – First defendant relying upon advice from second defendant structural engineer – Cracks occurring caused by heave from inadequate depth of foundations – Whether defendants breaching contract or statutory duty – Whether property being fit for habitation – Claim allowed
In 2001, the claimants purchased a detached property from the first defendant. The sale contract provided that the property complied with the NHBC standards of construction. A willow tree and conifers had been removed from the site before excavations were carried out and the foundations to the property laid. A firm of structural engineers (the second defendant) advised the first defendant on the construction of the foundations.
Heave resulting from the inadequate depth of the foundations caused cracking in the propoerty. The claimants brought an action against the first defendant for breach of contract and breach of the Defective Premises Act 1972, arguing that it had failed to build the house in a workmanlike manner. They also made a claim against the second defendant under the 1972 Act, claiming that its work was unprofessional. As against both defendants, they claimed that, as a consequence of their alleged failures under the Act, the property as built was unfit for habitation.
The first defendant contended that it had been obliged to construct the foundations in accordance with the second defendant’s specification and drawings and that it had done so. It rejected the assertion that the property as built was unfit for habitation and denied any breach of the 1972 Act.
The second defendant admitted that it had given the relevant advice and owed a duty of care to the claimants to carry out the work in a professional manner. However, it claimed that the depths specified in its drawings were minimum depths and that it had been entitled to assume that the first defendant would apply the recommendations set out in the site report that accompanied the drawings and take essential precautions against potential heave. Further, on a proper construction of the 1972 Act, the dwelling was fit for human habitation as built.
Held: The claim was allowed.
The first defendant had failed to build the dwelling in accordance with the NHBC standard of construction in breach of its contract with the claimants since the foundation depth to which it had built the property did not conform to the depth prescribed by the NHBC standard.
Moreover, as the builder, it had failed to construct the property with adequate foundations, making it unfit for habitation, contrary to section 1 of the 1972 Act.
The 1972 Act had to be construed bearing in mind that each case had to be considered on its merits and that the finding of unfitness for habitation was a matter of fact in each case. Unfitness for habitation extended to defects of quality as well as to dangerous defects, but they had to be defects that rendered the dwelling dangerous or unsuitable for its purpose: D&F Estates Ltd v Church Commissioners for England [1988] 2 EGLR 263, Thompson v Clive Alexander & Partners 59 BLR 87 and Catlin Estates Ltd v Carter Jonas (a firm) considered [2005] EWHC 2315 (TCC); [2006] 2 EGLR 139 considered.
A defect in one part of a dwelling might render it unsuitable for its purpose and therefore unfit for habitation as a dwelling-house even if the defect did not apply to other parts, as was the case under the Housing Act 1985. The 1972 Act would apply to such defects even if the effects of the defect were not evident at the time the dwelling was completed and one had to consider the effect of the defects as a whole: Summers v Salford Corporation [1943] AC 283 referred to.
Applying the test of whether the house was unfit for habitation in the sense of being unsuitable for its purpose, and considering the defects as a whole, the court found that the house as built was unfit for habitation under section 1 in that it had been built with unstable foundations, which resulted in movement and cracking and other defects caused by heave.
In failing to provide adequate foundations, the first defendant had acted upon the advice of the second defendant. In giving that advice, the second defendant had failed to act in a professional manner to discharge its obligation under the 1972 Act.
As a consequence of the defendants’ breaches, the failure to excavate the dwelling to a sufficient depth, thereby causing heave was a defect of quality capable of rendering the house as built unfit for habitation. Accordingly, judgment would be given for the claimants against both defendants in the sum of £218,616.91 plus interest.
Daniel Crowley (instructed by Plexus Law, of Colchester) appeared for the claimants; the first defendant did not appear and was not represented; Riaz Hussain (instructed by Browne Jacobson, of Nottingham) appeared for the second defendant.
Eileen O’Grady, barrister
