August EWJ 24 - Flipbook - Page 22
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.
EXPERT WITNESS JOURNAL
20
AUGUST 2024
