The Court of Appeal has overturned a judge’s decision that the conversion works on a house were so extensive as to change its identity and so make the project manager liable to the purchasers under the Defective Premises Act 1972.
The claimants bought a house from a Mr. Green in November 2007. It had a basement which had been converted out of a coal cellar, a ground floor, a first floor and a loft. In 2003, Mr. Green had instructed the defendant to undertake works on the house. The defendant was an interior specialist and project manager. Whilst he did not do the work himself, he “took on work for or in connection with” the house in Leathwaite Road within the meaning of the Defective Premises 1972 Act. The works included extensive remodelling of the loft, first floor and ground floor, plus the excavation of a new basement.
The claimants alleged that they had suffered loss because of flooding to the basement area which was caused by defective waterproofing. They commenced proceedings under the Defective Premises Act. The defendant applied for summary judgment, arguing that s.1 of the Act applied only to new dwellings and, on the facts here, the house was the same dwelling both before and after the works. Consequently, defendant maintained that it had not provided a dwelling for the purpose of owing the duties set out in the 1972 Act. The trial judge concluded decided that it was arguable that the works constituted the provision of a new dwelling “in terms of the identity being changed”.
Section 1(1) of the Act states:-
“A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty:
“a) If the dwelling is provided to the order of any person, to that person; and:
“b) Without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;
“To see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner … so that as regards the work the dwelling will be fit for habitation when completed.”
The Court of Appeal disagreed. To say that this house had changed its identity or was “a new dwelling, the identity of which was wholly different from the old” did not seem correct. There was no doubt a grey area in which it would genuinely be arguable that a dwelling had so changed that it had a different identity from before. However, in the court’s view, those works would have to be much more substantial than they were in the case before such a grey area was reached.
There were changes which had created more space in the loft and cellar areas, but the ground and first floors were approximately the same. Even if a whole new floor had been added, it could not be said that a “new dwelling” had been provided. The cost of the works, £400,000 in 2007, was not decisive. The court remained unpersuaded that a trial judge would be in a better position to determine whether a “new dwelling” had been created that had the judge in the Technology and Construction Court. The claimants’ case was dismissed.
Jenson v Faux, [2011] EWCA CIV 423
This article was originally written and published on the internet by the Construction Index on 09/05/11.
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