Can You Sue Building Control?

When things go wrong on a construction project, there is a potentially long queue of people that you might want to pursue for financial compensation, including builders, architects, and surveyors.

However, where can you turn if your builder has gone into liquidation? Is it an option to sue building control for approving works that turn out to be defective? Does liability attach to a third party who has been involved with the contract somewhere along the way?

This article looks at the role of building control in construction projects and whether you have any right of redress against them, or others, when things go wrong.

What Building Control Is and Why It Matters

Building control is a regulatory framework that ensures new construction projects, renovations, and extensions comply with the latest regulations and legislation. These rules cover things like structural integrity, health and safety, and energy performance.

Building control matters because it touches every aspect of a new development or renovation project. If a project doesn’t comply with the regulations, it will affect its value, meaning it may be impossible to mortgage or sell the property.

Starting at the drawing board, the development plans must comply with building regulations to gain planning permission. A building control surveyor will examine the plans as part of the approvals process.

The project must have an appointed principal designer and contractor. As the work progresses, inspectors will check that each stage of the project complies with the regulations. 

At the end, the project is signed off, and a completion certificate is issued.

Who Is Involved in the Building Control Process

In England and Wales, building control is run by local authority teams who ensure compliance with and enforcement of building regulations. Each local authority has its own building control department which works closely with the planning team.

The building control process involves several parties, starting with the property owner, client, or developer. These are the people ultimately responsible for ensuring compliance with building regulations.

The project will have designers who also share responsibility for compliance. The principal contractor manages the build and subcontractors, ensuring the development proceeds in line with the rules and regulations.

The project plans must pass approval to gain planning permission, following which the construction is checked at staged intervals by approved inspectors from the local authority.

Inspectors may offer advice where there are problems, allowing for remediation before work continues. They have enforcement powers for work that doesn’t comply.

The building control approver issues the final certificate upon completion of the project. Building control approvers are independent and form part of a private sector organisation authorised by the Building Safety Regulator (BSR).

The BSR operates a register of building control approvers (RBCAs).

How Approval and Sign-Off Work in Practice

From the first drawings through to the submitted plans and then construction, every stage of a new development or renovation is overseen by building control to ensure compliance with current regulations.

When the application is approved by the building control team at the local council, they provide property owners with an Inspection Service Plan before work starts. This framework highlights the stages of the work that require assessment.

These can vary from one project to another and are based on factors like development size, the age of the property, construction type, and even the builder’s experience.

The building control team must be informed when each stage starts and finishes, so surveyors can carry out site visits.

At the end of the project, a Building Regulations Completion Certificate is issued by the building control body overseeing the project after the final inspections, providing the project meets the standards set out in Building Regulations.

The Completion Certificate is an essential document for property owners, mortgage companies, and prospective buyers, confirming that the work complies with the law.

When Things Go Wrong: Liability and Legal Boundaries

Things can go wrong in construction when there are defective building works. Naturally, the property owner or occupier wants financial restitution if there is costly remediation or the defects are so serious that the building cannot be occupied.

Initially, liability may seem to reside with the main contractor on the construction project. However, it may not be that straightforward.

Is the Builder or the Council Responsible?

If there are defective works, the first recourse is to the principal contractor. However, there could be a second right of course via building control, who may have passed defective works and failed in their statutory duties.

Legal Routes: Contract, Negligence, and Public Law

Recovery in English law must be based on legally defined routes and remedies. With defective construction work, remedies lie in contract law or in civil law and the tort of negligence.

These routes of redress may be effective against the builder of a private residence. However, there is no remedy in contract or in negligence against building control.

There have been cases that have attempted to suggest that a council was guilty of maladministration and had therefore failed to discharge its statutory duties. However, the courts have found no public law duty that could support a claim.

Ultimately, the right of recourse lies in a comprehensive contract with the builder, which will offer protection via provisions for remedial works and a right of redress if defective works are not corrected.

Importantly, a breach of contract claim against the builder is not necessarily your only right of recourse. There can often be claims for professional negligence against solicitors, architects, surveyors and other third parties in the contractual chain who may have either breached their contract or acted negligently, giving rise to liabilities. 

Practical Obstacles to Bringing a Claim

The Limitation Act 1980 sets time limits for bringing legal action in England and Wales. The standard period is six years for contractual and negligence claims.

You may find it challenging to obtain evidence of defective work hidden within the building’s construction, which requires specialist evaluation and reports.

If your building company is insolvent or no longer exists, then you won’t be able to start a claim even if your case is clear-cut. Assuming you have none of these obstacles, the cost of litigation is high with no guarantee of success.

Time Limits and the 10-Year Rule Explained

Sometimes, housing defects can take many years to manifest, by which time a claim is statute-barred if more than six years have elapsed.

A recent statute, the Levelling-up and Regeneration Act 2023, has introduced a new 10-year rule.

This legislation legalises some unauthorised developments, including extensions and alterations to buildings and changes of use, allowing them to become lawful after 10 years in the absence of any enforcement action.

The Act may provide legalisation regarding planning law, but it won’t give compliance with building regulations. Owners of properties that don’t comply may still face enforcement even after 10 years have passed.

Defective or unauthorised work must comply. Many people incorrectly rely on the 10-year rule only to find that they still face enforcement action, and the opportunity to take legal action against their builder has passed.

Frequently Asked Questions

What Happens if Building Control Makes a Mistake?

Many people use independent inspectors for final approval of a project, to act as a double-check and safeguard against any building control errors. It’s easier to highlight problems and remedy any defects before the final certificate is issued, and the builders are still on site.

Can Building Control Be Sued?

There is no contractual or tortious relationship between a property owner or developer and building control. The courts have also found no duty in public law. This means it’s almost impossible to find a legal right of redress against building control if they make a mistake. A more fruitful legal route is claiming against the builder, but this relies on a comprehensive contract and a solvent company.

What Is the 10-Year Rule for Building Control?

The 10-year rule allows some unauthorised building work to become legal based on the passage of time. Typically, this relates to planning issues and not building problems. Defective work won’t magically become non-defective under the new legislation, meaning building control can still take enforcement action even after 10 years.

What About Professional Negligence by Solicitors?

Where conveyancers failed to advise properly on missing Building Regulations approval or completion certificates (for example, not advising properly on risks and indemnities, or not flagging issues in searches or replies to enquiries), a professional negligence claim may arise in contract and/or tort. It will often be a question as to whether a reasonably prudent solicitor should have insisted on further evidence of compliance or protections (and advised on this to their client), or should not have signed off on certain documents or certificates. Issues like this are commonplace and often give clients a right to redress that they didn’t initially consider.

Ready to Discuss Your Options with Helix Law?

Defective building work can stop a project in its tracks, causing delays and costs for property owners. Finding defective work years after completion creates an even bigger headache.

Our expert and commercial construction litigation teams at Helix Law regularly come across issues where something in a development has gone wrong, and claims need to be contemplated. Whilst suing building control might not be an appropriate or the best approach for the above reasons, there are other options and viable claims that can be considered to improve your position. 

Our construction team can consider whether adjudication, contract or negligence in the construction environment are workable, and our commercial litigation team regularly handle professional negligence claims against professionals involved elsewhere in the project chain, such as solicitors. Whatever your situation we can provide practical advice if the project encounters problems, and legal remedies if defects are discovered after completion. Our teams work nationally and would love to assist you.