Building Defects and the Law

I often find rather naive views on UK law relating to building defects published on the web.  I have collated some of these commonly held misconceptions, which I address below:

1. Compliance with Current Standards

“Every kind of construction must be completed to current standards.”  Wrong!  British and adopted European Standards provide guidance and advice.  Generally they attempt to summarise a consensus of good practice.  Usually they represent the views of interested parties co-opted onto a committee.  Due to the time taken to produce a Standard it is, on average, about 7 years out of date when published.  They are not mandatory.  A failure to comply with them is not criminal.  Most importantly, following building standards does not ensure sound building or confer immunity from law suits.

2. Construction Law

“At the heart of construction law are the building regulations.”  Wrong!  Regulation of building is to be found in a wide variety of statutes from the Town & County Planning Act to the Housing Grants, Construction and Regeneration Act.  The building regulations are, in their inception, health and safety provisions which have recently been widened principally to encompass some environmental concerns.   Their applicability and content are limited.

3. Building Regulations

“These regulations set out precise levels of quality and competence that should be met within all construction projects.”  Wrong!  Schedule 1 to the regulations provides performance requirements but does not prescribe quality and competence.  Approved documents issued under the regulations give technical guidance in the form of deemed-to-satisfy provisions.  Compliance therewith, however advisable, is not mandatory.

4. Construction Defect Law

“Construction defect law exists to protect your building project from shoddy workmanship. Defect law also gives your builders clear guidelines they must follow.”  Wrong!  There is not a distinct law of construction defects.  There is limited regulation of workmanship standards under schedule 7 to the building regulations and certain habitability standards required under statute for residential housing.  They are primarily intended to protect residential tenants from the results of demonstrably poor work and will in limited circumstance only assist those who commission building work.

5. Regulation of Building Professions and Workers

“You can hire designers, builders and tradesmen safe in the knowledge they are qualified to carry out the work you are paying them for.”  Wrong!  Architect alone is a protected title.  In contrast, anyone can lawfully trade as surveyor, engineer, builder, etc. or offer architectural services as long as they do describe themselves as an architect.  There is limited regulation of function covering certain installations such as gas fittings, which is intended to reduce the incidence of unsupervised unqualified persons working on certain defined hazardous installations.  

Those who are uninitiated into the complex mishmash of building qualifications defined variously as: registered, chartered, time-served, competent persons, etc. are unlikely to distinguish say between an architect, who by law must be qualified and registered, and an architectural designer, who requires neither qualification nor registration.   Much building in this country is performed by unregistered persons lacking appropriate formal qualifications.  When I am asked to investigate supposedly negligent architectural design, more often than not the designer was not an architect but the employer thought he was.  In a similar vein but at the other end of the scale, the worst gas pipework I have inspected was not installed by, or under the supervision of, a competent person but this did not have come to light until my inspection report was served. 

When I started in practice, design was usually provided as a separate service unconnected with the building contractor and the designers were retained to supervise construction as independent inspectors.  Builders worked in teams lead by experienced tradesmen.  On large schemes we had resident engineers, architects and/or CoW’s.  Self-certification by plumbers, etc. was unheard of.  Independent inspection was the norm.

Building regulations have moved progressively towards self-certification in place of independent inspection.   Procurement through design and build contracts tends to separate the employer from the designers so removing from him the once traditional team of independent consultants capable of expertly monitoring the work in progress.  Most standard forms of contract however deny the employer the automatic right to work which is reasonably fit for its intended purpose, so taking from him the greatest legal benefit a design and built contract would otherwise bestow. 

Defects are often more easily concealed than corrected.  The temptation to hide mistakes has always been there.  When at some future date concealed defects manifest themselves, expert inspection is required.  What constitutes competent building design, sound materials, and good workmanship is not defined in statute.  To claim compensation a combination of expert opinion and legal assistance is required.  To resist or pass on a claim more expert and legal opinions are often engaged.

If there were a statute providing overriding building defects law, all this might be brought to an end.  To draft such an all-embracing law to effectively consolidate and extend existing regulation would take unprecedented ingenuity.