COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
THE HONOURABLE MR JUSTICE RAMSEY
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE ETHERTON
| DESMOND EDWARD JENSON
SARAH JEAN JENSON
|- and -
|SPENCER ROY FAUX
Mr Graeme Sampson (instructed by Lyons Davidson) for the Respondent
Hearing dates: 23rd March 2011
Crown Copyright ©
Lord Justice Longmore:
i) The loft area was re-modelled and extended to support a new glass structure and skylights containing an office and guest bedroom;
ii) the first floor was re-modelled to change a bedroom into a second bathroom; this involved the replacement of all internal partitions and, while work on the basement was done, the demolition of a bedroom in order to relieve the load on the kitchen and basement below;
iii) the ground floor works consisted of gutting the floor in its entirety and replacing the kitchen replacing over a bigger area; this was done by removing internal partitions and replacing part of the external (southern) wall of the house with a new cavity wall;
iv) by way of replacing the coal cellar, a new basement was excavated to create a large space with shower room/WC and a washing/laundry room, cinema screen and indoor gym. There was internal and external access to the basement.
"A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or by the conversion or enlargement of a building) owes a duty
a) if the dwelling is provided to the order of any person, to that person; and
b) without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling;
to see that the work which he takes on is done in a workmanlike or, as the case may be, professional manner … so that as regards the work the dwelling will be fit for habitation when completed."
"It appears to me that, as a matter of construction, the section is directed to the provision of a new building…
It seems to me, as I have already said, that the meaning of sub-section (1) is clear. The Act applies to provision of a dwelling whether by erection or the conversion or enlargement of a building. The contrast between the words I have emphasised indicates that a new dwelling is contemplated. Had the draftsman intended that the Act should apply to the enlargement of an existing building he would have said so. The provision of which the Act speaks is the provision of something – a dwelling – which has not existed before."
"Had the sixth floor been enlarged or converted so as to produce a separate flat then the Act would have applied to that work. Moreover, one can envisage a case in which the works to an existing dwelling were so extensive as to justify the conclusion that they had provided a new dwelling, the identity of which was wholly different from the old: but that is not the case here."
"connotes the creation of a new dwelling. It does not include rectification of an existing dwelling."
Lord Justice Etherton:
Master of the Rolls: