Architects, Engineers and Opinions on Compliance

Architects, Engineers and Opinions on Compliance Stephen Chessher Building Regulation Building regulation is nothing new. The ancient Babylonians seem to have been familiar with the concept of what we now call health and safety. The Code of Hammurabi (circa 1780 BC) prescribed draconian penalties for breach thus: 229 If a builder build a house for some one, and does not construct it properly, and the house which he built fall in and kill its owner, then that builder shall be put to death. 230 If it kill the son of the owner the son of that builder shall be put to death. 231 If it kill a slave of the owner, then he shall pay slave for slave to the owner of the house. 232 If it ruin goods, he shall make compensation for all that has been ruined, and inasmuch as he did not construct properly this house which he built and it fell, he shall re-erect the house from his own means. 233 If a builder build a house for some one, even though he has not yet completed it; if then the walls seem toppling, the builder must make the walls solid from his own means. Modern building regulation in the United Kingdom and Ireland has its origins in the Victorian drive to improve sanitation which gave rise to the Public Health Acts. It was initially left to the discretion of local authorities to introduce bye-laws if they considered it appropriate and in Ireland that remained the case until as recently as 1990. The Building Control Act 1990 was and remains the basis of the building control system in Ireland. It empowered the Minister to make building regulations and established a statutory duty to design and construct buildings in accordance with the regulations. IO113/11/277981 The Buildings Regulations 1997 2008 are functional in nature, that is to say they set out general standards that are to be achieved but do not prescribe how those standards are to be achieved. The current Regulations consist of Parts A M and as well as the traditional function of providing for health and safety in buildings, they now accommodate more recent concerns such as conservation of fuel and energy (Part L) and access for disabled people (Part M). The Building Regulations are supplemented by Technical Guidance documents published by the Minister which provide guidance on implementation of the Regulations. Compliance with the Technical Guidance documents (as opposed to the Regulations) is not obligatory but if a building is designed and constructed in accordance with the relevant Technical Guidance document, that will be taken as prima facie evidence of compliance with the Regulations. Enforcement So much for the Regulations themselves. What about enforcement? Up to now, the system in Ireland might best be described as laissez-faire. With the exception of fire safety, the only positive obligation on owners and developers (apart from their general obligation to comply with the

Regulations) is to lodge a commencement notice with the building control authority (ie the local authority). The building control authority then has the power but not the obligation to require sight of plans and to make inspections. Unlike the systems that operate in all parts of the UK, the building control authority has no role in approving works. Basis of Opinions on Compliance There is currently no statutory system of certification of building works although that is about to change. I will come back to that later in my talk. The system of certification, such as it is, is non-statutory and in fact is a product of the conveyancing system. Under General Condition 36 of the Law Society s General Conditions of Sale, the vendor warrants substantial compliance with planning permission and building regulations. Note the qualification substantial. By General Condition 36(e), the vendor is required to produce a certificate or opinion of substantial compliance given by an architect or engineer or other professionally qualified person. So although there is no statutory requirement for opinions on compliance with Building Regulations, it has been near universal practice to obtain such an opinion for a new building since the 1990 Act came into force. General Condition 36 (f)(i)(ii) which was introduced in 2001 completes the scheme. It provides that where the vendor has furnished certificates or opinions on compliance, he shall have no liability on foot of the warranties given under General Condition 36 in respect of any matter with regard to which the architect s opinion is erroneous or inaccurate unless he was aware of such material error or inaccuracy. Standard Form of Architect s Opinion on Compliance with Building Regulations There is no mandatory form of opinion on compliance and I have seen forms many and varied. However, there is a standard form agreed between the Royal Institute of the Architects of Ireland (RIAI) and the Law Society which is in common usage. It is worth looking at this form in some detail. The first thing to note is that the form sets out its purpose on its face: This opinion is issued solely for the purpose of providing evidence for title purposes of the compliance of the Relevant Building or Works with the requirements of the Building Control Act. Except insofar as it relates to such compliance it is not a report on the condition or structure of the relevant Building or Works. So there you have it. The architect is not guaranteeing the works. The reference to title purposes is important. It could perhaps be clearer but I think is intended to mean that the opinion is provided to satisfy the vendor s contractual obligations to which I have referred. I will come back to this limitation. The architect then sets out what services he has provided. If the architect has been employed under a standard form of appointment that will commonly be by reference to the description of services set out in the appointment. Dependent on the services provided, the architect may provide an opinion on design; opinions in relation to the fire safety certificate and commencement notice; and/or opinions in relation to construction. If the opinion is in relation to construction, the form then refers to inspection in the following terms: On. ( the Inspection Date ) I carried out an inspection of the Relevant Building or Works for the purposes of (a) comparing such with its Design and (b) establishing its substantial

compliance with the Building Regulations. Note again the qualification substantial which of course is the same as that in the General Conditions of Sale. The expression substantial compliance is used in relation to both design and construction. It is defined as meaning that the design or construction as the case may be is in accordance with the Building Regulations: saving and excepting such deviations as would not in my opinion warrant the issue of enforcement proceedings as provided for in the Building Control Act. This brings an element of subjectivity into the process. Enforcement proceedings are in practice uncommon. However, the fact that enforcement proceedings are uncommon is not in my view to point. The question is whether the issue of enforcement proceedings is warranted. We then come to the opinion itself. The opinion is prefaced with the note: It is the responsibility of those concerned with the construction of the Relevant Building or Works to ensure the compliance of such with the Building Regulations. This is important. The fact that an architect has issued an opinion on compliance does not relieve the owner or builder of his responsibility to comply with the Regulations. That is to be contrasted with the relief from contractual liability for breach of warranty which benefits the vendor who in good faith provides an erroneous architect s opinion. There are two alternative forms of opinion relating to construction. Either: I am of the opinion that the Construction of the Relevant Building or Works is in Substantial Compliance with the Building Regulations; OR the Construction of the Relevant Building or Works is in Substantial Compliance with the Building Regulations. I have received Confirmation from those detailed at Schedule A hereto, that the Relevant Building or Works has been constructed in Substantial Compliance with the Building Regulations. This Opinion relies on Visual Inspection and on those Confirmations. The latter form is intended to apply where the contractor and/or other consultants have provided confirmations as to particular elements. A structural engineer, for example, may have provided confirmation of compliance of the foundations with the Regulations. The intention, clearly, is that the architect should not accept responsibility for elements of the building which fall outside his remit. Whether the wording in fact achieves that end is perhaps open to question. If the carve out is successfully achieved, it also raises the spectre of a lacuna. It is not common practice for engineers and others to provide sub-certificates or opinions. So the purchaser may find himself in a position where he has an opinion which does not cover all elements of the building. If it turns out that the foundations were non-compliant, the purchaser will not have a claim against the vendor for breach of warranty (provided that he was not aware of the breach) but he may also find that he does not have a claim against the architect under the opinion. Duty of Care To whom does the architect owe a duty of care?

Clearly he owes a duty to his client but the opinion is not provided for the benefit of the client. It is provided for the benefit of the purchaser. The purchaser seems to fall fairly and squarely within Hedley Byrne principles. The architect when giving his opinion may not know the identity of the specific purchaser but he does (or should) know that his opinion is intended to be provided to purchasers as a class. This is not a case of a duty being owed to an indefinable class and indefinable number of people. What about subsequent purchasers? The position here is less clear cut. The vendor in this case will not be the person who obtained the opinion from the architect, that is the architect s client. Nonetheless, it might be thought that a subsequent purchaser would still be a person who might be expected to be in the architect s contemplation as a person who would rely on the opinion. The difficulty perhaps arises from the fact that a subsequent purchaser may not acquire his interest in the property and hence his right of action until many years after the date of issue of the opinion. Is it fair and just and reasonable that an architect should be exposed to liability to an unlimited number of subsequent purchasers for an indefinite period? So far as I am aware, there is no Irish case law directly to point, although we may be able to derive some assistance from English case law. There is a trio of English cases involving local authorities which should be well known to every student of tort and which incidentally may show why Irish local authorities have been so reluctant to take on responsibilities for approving building works. The first is the Court of Appeal decision in Dutton v- Bognor Regis Urban District Council [1972] 1QB. In Dutton the local authority inspector negligently approved foundations to a house which it turned out had been built on the site of an old rubbish tip. Damage did not manifest itself until the house had been sold on by the original purchaser. The plaintiff Dutton was a subsequent purchaser who sued both the vendor and the Council. The Court of Appeal held that the wide power to control building works assumed by the Council under the Public Health Act was exercisable for the protection and benefit of future owners and occupiers and carried with it a duty at common law to take reasonable care to see that the bye-laws were complied with. The Court further held that the plaintiff was within the definition of persons described in Donoghue v- Stevenson as a person so closely and directly affected by the inspector s act that he ought to have had her in mind as likely to be injured if he made his inspection negligently. She did not even have to show that she bought the house in reliance on the inspection. The late, lamented Lord Denning said that where a professional man gives advice on financial or property matters, his duty is only to those who rely on him; but where he gives advice on the safety of buildings or machines or material his duty is to all those who may suffer injury if his advice is bad. It needs to be said straight away that Dutton is no longer good law in England and Wales and in any event the position of a local authority inspector acting under statutory powers is not necessarily analogous to an architect providing an opinion on compliance. Nonetheless, it seems to me at least possible that an Irish court might follow the line of reasoning in Dutton. The high watermark for claims against English local authorities in respect of their building control function came with the 1978 decision of the House of Lords in Anns v- Merton London Borough Council [1978] 1 AC. Anns concerned foundation defects in a block of flats where the plaintiffs held long leases. Most of the plaintiffs were not the original lessees. Again, the Council was held liable and Dutton was approved. On the

question of limitation, the Court found that the cause of action arose only when the state of the building was such that there was present or imminent danger to the health and safety of the persons occupying it. By 1991 the tide had turned. Murphy v- Brentwood District Council [1991] 1 AC was another case where a local authority inspector approved defective foundations. The House of Lords held that the loss suffered by the plaintiff was pure economic loss and, as a matter of policy, a local authority would not be liable to a purchaser for such pure economic loss. Anns was departed from and Dutton was expressly overruled. I have said that I think that an Irish court might follow the line of reasoning in Dutton. That is because the law on recovery of pure economic loss has taken a different turn in Ireland with Ward v- McMaster 1989 ILRM 400 and the reluctance of the English courts to countenance claims for pure economic loss does not appear to apply in this jurisdiction. The last category of potential plaintiff that I want to consider is the third party who does not have any interest in the property the subject of the opinion. Personal injury claims are not infrequently brought against architects and engineers by plaintiffs who allege that the accident which gave rise to their injury occurred because the premises were in breach of Building Regulations. A typical example would be a trip on a staircase which is found to be non-compliant with Building Regulations. Does the architect who issued an opinion on compliance owe a duty to this type of plaintiff? In my view, the answer is no. The reason is that the RIAI opinion is expressed to be issued solely for the purpose of providing evidence for title purposes. In my view, that should mean that the architect owes a duty to persons who have or may acquire an interest in the property but not to the world at large. Clearly if that restriction is absent from the opinion on compliance, the outcome might be different. Breach of Duty If the architect owes a duty to a particular person, what will be deemed a breach of that duty? Here we come back to the expression substantial compliance. Not every trivial breach of the Regulations will give rise to a cause of action. What is substantial is a matter of opinion and proceedings should not be brought without supportive expert opinion. Limitation I have touched on the question of limitation: when does a cause of action accrue under an opinion on compliance for purposes of the Statute of Limitations? Assistance can be derived from the decision of Mr Justice Geoghegan in Irish Equine Foundation Limited -v- Robinson and others [1999] IEHC 150. That case concerned a claim against an architect and an engineer under a certificate of practical completion of building works rather than an opinion on compliance where the plaintiff was the original owner of the building who had retained the architect and engineer. In Irish Equine the roof of a building designed (and inspected) by the defendants was defective but the defects did not come to light until water ingress occurred some time after completion. It was a claim for economic loss. The Court held that economic loss arose no later than the time the defectively designed roof was constructed and the fact that damage was not manifest until later was irrelevant. By extension, it seems to me that the economic loss suffered by a purchaser of a building which was built in breach of Building Regulations must occur at the time that the purchaser acquires his interest in the property.

Draft Building Control (Amendment) Regulations 2012 I alluded earlier to radical changes in the building control regime that are on the horizon. The proposed Building Control (Amendment) Regulations 2012 will require building owners to procure certificates of compliance with Building Regulations for both design and construction of buildings. So the whole edifice of opinions on compliance which is currently a function of the conveyancing system will be put on a statutory footing. But that is for another day. July 2012