Rico Wojtulewicz is head of housing policy and planning for the National Federation of Builders
After several years of the government inventing penalty taxes to convince voters that developers are the least innocent in its “hierarchy of innocent parties”, a letter from building safety minister Lee Rowley to the Leader of Camden Council, Georgia Gould, may imply that potentially culpable parties who have previously been ignored could still be held liable.
The letter, about a four-storey block called Agar Grove, asked if there was “sufficient evidence” to prosecute building control firm Salus Approved Inspectors for “knowingly or recklessly closing the building”.
“Are approved inspectors about to be treated differently to local authority building control inspectors?”
But even if such evidence can be found, two legal cases have set a precedent for why inspectors cannot be held liable under the existing Defective Premises Act 1972 (DPA).
In the Court of the herons In the litigation, it was found that the DPA imposes the duty on the “person who undertakes the work” and creates the home – so designers, architects and builders – and not on those who carry out statutory duties such as closing .
Murphy v Brentwood he also noted that because local authorities were not legally responsible to act as insurers, the court’s role could not be extended to provide consumer protection.
It’s worth noting that unlike local authority building control, Chartered Inspectors (CAs) operate under contract, meaning they have a statutory duty. However, it is considered unlikely to prove contractual liability under the LPD.
Therefore, AIs and local authority building control are currently unlikely to be held responsible for the faulty work they sign off or even advise on.
However, AIs can be sanctioned by CICAIR Ltd, which maintains and operates the Construction Industry Council’s Register of Approved Inspectors (CICAIR): two inspectors are currently suspended, although their employers can continue to operate .
And the Building Safety Act 2022 also introduced penalties and fines for professional misconduct.
Time to change?
So it is curious that Rowley asks about the persecution of approved Salus inspectors. So we should ask ourselves:
- Did he understand legal precedent and deviate?
- Are AIs about to be treated differently to local authority building control inspectors?
- Is the government planning to make further changes to the ODA, specifically to section 1, ‘Duty to build homes properly’, which was not touched in the 2022 reforms?
While it would not be surprising to see the private sector being held accountable and the public sector not, a growing trend since the tragic Grenfell disaster, the Building Safety Act 2022, which allows developers to hold third parties accountable for defective work, would probably require changes. in the DPA to include AIs.
This could happen if the development industry lobbied for the DPA to include those with contractual agreements for signature that are defined as “undertaking work”. Helpful for the government, such a move would leave local authorities out.
It has become difficult to predict how the government will act in terms of accountability as developers have become the main scapegoat. This is frustrating as the industry has always had an unusual relationship with building control; although they are highly valued, the lack of accountability increasingly presents them as a bureaucratic obstacle rather than part of the construction process.
This is especially true for those who purchase a second-hand home or building with defects, as completion certificates (even if available) are only worth the paper they are written on and not even that when it comes to paying the duplicate certificates.
All eyes are on Agar Grove in Camden for more clues!
