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:
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.
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Due to the time taken to produce a Standard it is, on average, about 7 years out of date when published.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.
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.
