Rendlesham Estates Plc & Ors v Barr Ltd

Citation: [2014] EWHC 3968 (TCC), [2015] BLR 37, [2015] TCLR 1, 157 Con LR 147, [2015] 1 WLR 3663

The TCC considered the meaning and application of Section 1 of the Defective Premises Act 1972 (“The Act”) in a case where Claimants alleged that apartments in two blocks had not been fit for habitation when completed. The Court was, amongst other things, required to determine what constituted a “dwelling” for the purposes of the Act, what was meant by the term “in connection with the provision of a dwelling” and the criteria by which “fitness for habitation” was to be determined.

The Claimants owned 120 of the 171 apartments in the development which had been built by the Defendants. The Claimants claimed that numerous defects existed in their individual flats and the common areas, including faults with the roof, glazing, walls, intercom system, leaks from walkways, balconies and showers, leaks in the basement car park and mould and damp. The issues to be decided were:
(1) the meaning of “dwelling”;
(2) the meaning of “in connection with the provision of a dwelling”;
(3) the required standard of design and workmanship;
(4) the meaning of “fit for habitation”;
(5) whether the claim could be pursued as a representative action under CPR r.19.6 in respect of apartment owners who were not parties;
(6) the measure of damages regarding defects to the common parts;
(7) the extent of the Defendant’s liability;
(8) the level of any residual blight on the apartments’ values following remedial work; and
(9) damages for distress and inconvenience.

The Claimants were largely successful in their claims, with Mr Justice Edwards-Stuart finding in relation to the above issues: The Claimants were largely successful in their claims, with Mr Justice Edwards-Stuart finding in relation to the above issues:

(1) A “dwelling” was a place where a person or household lived to the exclusion of members of another household. On the facts this would mean the individual apartment described in the lease together with, possibly, those parts of the building to which the relevant occupiers had in practice exclusive access for living (such as the balcony outside the individual apartment). This did not include the common parts.

(2) The application of the words “in connection with the provision of a dwelling” was much broader and also very fact specific, normally requiring a structure to be physically or functionally connected with the relevant dwelling. On the facts the work done to the structural and common parts of both blocks was work done in connection with the provision of each of the apartments in the two blocks, since the owner of every apartment had an interest in and a financial responsibility for the maintenance of the structural and common parts of both blocks and each leaseholder also had a right of access to the common parts of the other block. However, defects in the common parts were only relevant to the extent that they impacted on the fitness for habitation of the individual dwelling.

(3) The standard required by the Act was for work to have been carried out in a professional or workmanlike manner and with proper materials, meaning that it must have been carried out in accordance with the relevant regulations and standards in force at the time of construction.

(4) To be “fit for habitation” the dwelling must, on completion, have been capable of occupation for a reasonable time without risk to the health or safety of the occupants and without undue inconvenience or discomfort to the occupants. This would be a matter of fact and degree (Bole v Huntsbuild Ltd [2009] EWHC 483 (TCC) and Harrison v Shepherd Homes Ltd [2011] EWHC 1811 (TCC) applied). See Paragraph 82 for the full list of relevant principles as applied to the facts.

(5) The claim could not be pursued as a representative action. Unfitness for habitation was an essential ingredient under the Act which, on the facts, meant that proof was required in relation to each individual Claimant’s apartment as no two owners had the same interest.

(6) A leaseholder’s loss in respect of a defect in the common parts was not limited to his proportion of the service charge covering the repairs. The owner of an apartment rendered unfit for habitation by a defect in the common parts was entitled to the cost of repairing that defect. The full cost of repairs could be awarded to each claimant entitled to it, but the judgment sum could only be enforced once against the Defendant.

(7) Each apartment had been rendered unfit for habitation because of a variety of defects to the common parts and the individual apartments and the Claimants were entitled to the costs of rectifying the applicable defects. There were only a few, limited heads of claim where the Claimants had failed to prove their case.

(8) The Claimants would be entitled to a sum representing the blight on the value of apartments where remedial works were undertaken.

(9) Damages for distress and inconvenience were also awarded.

Link to Judgment

Counsel: Alexander Nissen QC and Jonathan Selby appeared on behalf of the Claimants.

Counsel

Alexander Nissen QC
Jonathan Selby QC

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