Deterioration of Defects

In August 2023, the First-tier Tribunal (“FTT”) issued the first remediation order under section 123 of the Building Safety Act 2022 (“BSA”) in Waite & Others v Kedai Limited. The freeholder was ordered to remedy specified relevant defects within 25 months. 

So much falls on the definition of a “relevant defect” under s.120 of the BSA: 

“a defect as regards the building that: 

(a) arises as a result of anything done (or not done), or anything used (or not used), in connection with relevant works, and

(b) causes a building safety risk.”

with a “building safety risk” defined as “a risk to the safety of people in or about the building arising from: 

(a) the spread of fire, or

(b) the collapse of the building or any part of it”.

In Waite, leaseholders raised concerns over the external cladding and other fire safety issues. The FTT held that the cladding, cavity barriers and internal compartmentation and absence of fire stopping were relevant defects and requiring remedial works.

Leaseholders tried to persuade the Tribunal balcony soffits constituted a relevant defect too. The soffits were formed using a gypsum-based plasterboard which the expert considered provided a suitable degree of protection should a fire on a balcony below attack the underside of the one above. The expert also believed gypsum-based plasterboard is not suitable for long-term exposure to the elements (in other words, it has a shelf-life). Deterioration was identified, meaning the soffits could not be relied upon to protect the balcony from fire the longer time goes by. 

The FTT excluded the soffits from the scope of the remediation order, determining they were not yet a relevant defect: 

“…the Tribunal’s view is that the gypsum-based balcony soffits currently provide certain protection by reason of their position on the building. Although their deterioration is inevitable, there is no known time span for this”. 

Greater importance was placed upon deterioration by the TCC in respect of a claim brought under section 1 of the Defective Premise Act 1972 (“DPA”), in Vaniker & Anor v Marbank Construction Ltd & Ors [2024] EWHC 667 (TCC). 

The claim arose out of the construction of a new-build residential property, built by the First Defendant and designed by the Third.

While claims for breach of contract and tort failed due to limitation issues, the Claimants succeeded arguing certain defects in the property rendered it unfit for habitation, in breach of the requirement imposed by section 1 of the DPA: 

“A person taking on work for or in connection with the provision of a dwelling […] owes a duty: 

[…]

(b) […] to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner, with proper materials and so that as regards that work the dwelling will be fit for habitation when completed.”

The designer was found to be liable for defects in the glass balustrades, which had been installed using the wrong type of glass without a handrail, rendering the property unfit for habitation “because of the inherent risk posed to health and safety”, considered more than an issue of mere aesthetics as the brickwork was treated to be.

Importantly, citing Rendlesham Estates plc & Ors V Barr Ltd, Mrs Justice Jefford considered the issue of deterioration, obiter: 

“there may be a breach of duty in respect of a defect which means that the condition of the dwelling is likely to deteriorate over time and render the dwelling unfit for habitation when it does so. In that case the dwelling can be said to be unfit for habitation at the time of completion.”

Whilst in Waite the FTT did not consider inevitable deterioration of defects to constitute a building safety risk, the TCC came to a different conclusion, whereby deterioration in the future likely renders dwellings unfit for habitation now.

With the BSA retrospectively extending the limitation period for claims under section 1 of the DPA that accrued before 28 June 2022 to 30 years, Vaniker leaves contractors vulnerable to these claims, and the chasm between what may be seen a relevant defect under the BSA and unfit for habitation under the DPA starts to appear.