A positive approach

Do building control departments of local authorities have a 'positive obligation' to homeowners under the Human Rights Act in relation to their functions under the Building Regulations? Stephen Homer reports.

The 1991 case of Murphy v Brentwood set out clearly that, as a matter of policy, a local authority would not be liable to a homeowner where negligent approval of design and construction on the part of the authority resulted in damage which caused a depreciation in value to the homeowner's property.

Recognising this barrier, the claimant in the more recent case of R (on the application of Gresty & Gresty) v Knowsley MBC [2012] EWHC 39 (Admin) explored an alternative avenue for the recovery of loss, namely the Human Rights Act 1988 and the claimant's right to respect for private and family life pursuant to Article 8 of the European Convention on Human Rights.

The authority's building control department approved the claimants' plans for an extension to their home in 2001 and visited the site at various points throughout construction. It soon became apparent that the works were defective. An engineer's report obtained in 2002 noted in particular "serious failures to comply with current building regulation standards" on the part of the building contractor whom the claimants had employed to carry out the work.

Complaints made by the claimants in 2002 were rejected by the authority and they subsequently obtained a judgment against the building contractor, but were unfortunately unable to recover any monies.

The claimants sent a formal letter of claim to the authority in 2011, alleging maladministration and a failure to discharge its positive obligation under Article 8 of the Convention to restore their home. The claim did not succeed.

The court decided that there was no positive obligation on the authority in these circumstances. In particular it noted that:

  • there was no private law remedy in the absence of a contract, nor public law duty under UK law;
  • if the condition of the house was so intolerable that the claimant's were unable to occupy it, the authority would have had an obligation to them under homelessness legislation;
  • the breach was isolated and not continuing;
  • the consequences of the breach were not extreme in that the house was not dangerous and the defects could be remedied;
  • the authority's responsibility was secondary: Primary liability rested with the building contractor.

Although the court recognised that a positive obligation under Article 8 could exist, this case indicates that it will apply in only the most extreme cases, such as where the defective construction poses a significant threat to health and safety and/or where several homeowners are affected.

Analysis: When will a positive obligation exist?

The court considered that existence of a positive obligation would depend on close examination of the relevant circumstances, in particular:

  1. The legal and statutory framework: Is there a private or public law duty or power to act? If so, what remedies are available? How has the UK legislation struck the balance between the individual and the public purse?
  2. The extent of the culpability: The greater the culpability, the stronger the basis for imposing a positive obligation.
  3. The severity of the alleged consequences and degree of connection with the authority's conduct: The greater the severity of the consequences or degree of connection with the authority's conduct, the stronger the basis for imposing a positive obligation.

Stephen Homer is a partner and head of construction law at Ashfords. He can be contacted on 01392 333883 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..