Duty of Care

Charles Mynors

The liabilities of owners, professionals and contractors responsible for the care of historic buildings

Those who own or live in historic buildings or who carry out works to them have a duty to care for them, and to keep their buildings in good condition as far as possible. True? Well, not exactly. Such people may have a moral duty along those lines, and enthusiastic conservation officers with low grant budgets may encourage them to believe that they have a legal duty towards their buildings, but the truth is that the duties imposed by the law are relatively limited.

LIABILITY IN NEGLIGENCE

First, everyone, professional or layperson, owes a general duty of care to all those likely to be affected by his or her actions (or inaction). This has led to several categories of duties relevant to works to buildings. A breach of such duty, if it leads to harm, may give rise to a claim in negligence.

OCCUPIERS' LIABILITY

There is a duty (under the Occupiers’ Liability Acts) laid upon the occupiers of all buildings to take ‘such care as in all the circumstances is reasonable’ to see that visitors (and, to some extent, even trespassers) are reasonably safe. That will imply a duty to carry out basic repairs, and will be particularly relevant in the case of buildings at risk. However, note that the obligation is only to take ‘reasonable’ care, which would imply that both the nature of the building and the means of the owner might be relevant in considering what should be done in any particular case. This duty is also unlikely to be a problem for owners of ordinary listed buildings that are not dangerous but merely in an ordinary state of disrepair. Note too that the duty under the 1957 Act does not extend to ensuring the safety of professionals working on the property – they are assumed to be able to look after themselves.

PROFESSIONALS' AND ARTISANS' NEGLIGENCE

There is a common law duty on those professionals, contractors and craftsmen, when working on any project, to take reasonable skill and care to achieve the task for which they have been hired. But what is reasonable? As one textbook puts it, 'in practice, different professions enjoy varying degrees of success. It is not surprising if a litigating solicitor says that some of his clients lose their cases, or if a doctor says that some of his patients do not recover: but it is most surprising if an engineer says that some of the bridges which he designs fall down, or if a conveyancing solicitor says that some of his clients do not acquire good title to their properties'. Thus, on the whole, it is not enough for those who are engaged to carry out works to buildings, historic or otherwise to carry out the work agreed, they must also do it properly.

However, there are limits to how far the courts will intervene. For one thing, the duty owed by professionals and others is primarily to their clients, and not to the building. Further, the duty is to take reasonable care to complete their appointed task – whether that be preparing a design for the alteration to a building, or carrying out the actual works to implement that design – properly, in the light of the standards of those operating in the same field. It follows that no one is under a legal duty to carry out work better than all their rivals: a moment’s thought will show that that would be wholly unworkable since, by definition, at least half of those operating in any field will be less competent and less inspired than the average.

On the other hand, where a professional or craftsman holds himself or herself out to be a specialist – either in historic buildings generally or in relation to some particular aspect of conservation work (such as, say, the restoration of historic fabrics, or the integration of modern computer services into old buildings) – it is perfectly proper for clients to expect a level of expertise greater than that of a general building professional. But the same principle still applies; a historic paint expert is expected to know more than a general decorator, but not more than other historic paint specialists.

LIABILITY UNDER A CONTRACT

Most, if not all, work to historic buildings will be the subject of a contract. This may be a simple oral agreement (such as 'Will you pop in to have a look at the crack in my kitchen wall?') or a written contract and specification comprising thick specification documents and numerous drawings. Either way, breach of a term of the contract may lead to a successful claim for damages. The matter was put thus by a judge:

If I employ a carpenter to supply and put up a good quality oak shelf for me, the acceptance by him of that employment involves the assumption of a number of contractual duties. He must supply wood of an adequate quality, and it must be oak. He must fix the shelf. And he must carry out the fashioning and fixing with the reasonable care and skill which I am entitled to expect of a skilled craftsmen. If he fixes the brackets but fails to supply the shelf, or if he supplies and fixes a shelf of unseasoned pine, my complaint against him is not that he has failed to exercise reasonable care in carrying out the work, but that he has failed to supply what was contracted for.

The same applies to any task in the course of the building process – again, whether by professionals or artisans. It is therefore important to specify works carefully when entering into a contract. And if the building concerned is a historic building, correspondingly greater care needs to be taken – with the drafting of the contract as much as with the carrying out of the actual works themselves. In particular, where a project involves opening up an existing building, it is not always possible to predict with any accuracy what will turn up. So the specification must take account of all (or at least most) of the likely possibilities if it is to be of any use.

DUTY UNDER STATUTE

Other than the duties under the Occupiers’ Liability Act already mentioned, there are few if any duties under statute. The Planning (Listed Buildings and Conservation Areas) Act merely states that a planning authority has the power to intervene to carry out urgent works to keep the wind and weather out. It may then seek to recover the cost of such works from the owner. However, a planning authority will often choose to wait before taking any action in the hope that the property changes hands.

The service of a repairs notice is another option, but only if the authority is prepared to buy the property – or is at least prepared to think of doing so. In effect, issuing a repairs notice tells the owner that the authority considers that it is necessary to carry out certain works, specified in a schedule to the notice, if the building is to be preserved. That in turn enables the owner to see what he has to do if he is to avoid the property being compulsorily purchased and sold on to someone who will do the works.

Despite these two measures, there is no general duty, either under statute or at common law, on the owner or occupier of a building to do anything to stop it falling into a state of advanced decay – although that may expose the owner to the risk of being served a building repairs notice and, ultimately, compulsory purchase. In some (but not all) cases allowing a building to decay may also be unwise commercially. In other words, although there is much encouragement from central government to keep a listed building in good repair, there is no actual duty on owners to do so. Here, too, it would be surprising if the law were otherwise, since it is difficult to see how any such duty would be enforced where a person was unable or unwilling to comply.

NEED FOR SPECIAL CONSENT

One thing of which everyone should be aware is the need for consent for works to historic buildings. In simple terms, planning permission is needed for any building operations – other than those affecting just the interior of a building – but for many schemes which impact on the historic environment, such permission may, indeed frequently is, granted by the General Permitted Development Order. Listed building consent will be needed for any works, exterior or interior, that affect the character of a listed building, and conservation area consent for the demolition of all or the significant bulk of a building in a conservation area. Works to particular categories of buildings may need other special forms of authorisation – such as a faculty for almost any works to a Church of England church. And of course most works will need to be approved under the Building Regulations.

It is undoubtedly part of the job of a professional running a building contract to know what consents are required (and to seek advice in cases of doubt); and to obtain such consents as are needed, through the appropriate channels. Further, as a large project proceeds, the design may change. Often these changes will be quite minor, but if they are more significant, it will be necessary to consult the appropriate authorities promptly, to see whether the consents already obtained can be modified, or whether new applications are required.

The sanction for failure in this regard can be severe. Firstly (in terms of penalty), contractors and consultants face the possibility of being sued by the client for negligence (particularly where failure to obtain the necessary consents leads to major delay or the need for expensive redesign). Secondly, failure to obtain listed building or conservation area consent, or to comply with the conditions attached to such consent, is a criminal offence; and the planning authority is entitled to prosecute the contractors who actually carried out the works, and the professionals who inspired them, as well as or in preference to the owner of the building. All of them will be equally liable to conviction, either for the principal offence or for ‘aiding and abetting’. Thirdly, where professionals are found guilty of inappropriate tampering with historic buildings, the relevant professional bodies (the RICS or RIBA for example) are likely to be distinctly unimpressed.

BUYING AND SELLING HISTORIC BUILDINGS

Finally, when a property changes hands, the usual rule applies: let the buyer beware. In the case of historic or otherwise non-standard properties, this rule is even more important. So those contemplating such a purchase should be very careful to ensure that there are no hidden surprises, or they may have very large repair bills the cost of which could have perhaps been deducted (at least in part) from the purchase price.

For example, where works were in the past done without consent, the local authority may correctly issue an enforcement notice requiring a subsequent owner to carry out the necessary restoration. So when buying a property that has clearly been the subject of alterations or from which original features may have been removed, make sure that consent was obtained – and if it was not, find out what the planning authority wants to be done about it and, again, deduct the cost of those works from the price offered.

Failure by those responsible for the conveyancing to spot such problems may lead to them being sued for negligence. In short, the same problems apply to historic buildings as to others, but sometimes in a more acute manner.

Listed Building Prosecutions Survey

Bob Kindred

Recent published research by the Office of the Deputy Prime Minister and English Heritage (through the State of the Historic Environment Report) suggests that the level of enforcement of planning and listed building controls is very low both in terms of priorities and activity. This is despite government advice in PPG15 sending out two clear messages:

'Once lost, listed buildings cannot be replaced; and they can be robbed of their special interest as surely by unsuitable alteration as by outright demolition. They represent a finite resource and an irreplaceable asset. This reflects the great importance to society of protecting listed buildings from unnecessary demolition and from unsuitable and insensitive alteration and should be the prime consideration for authorities…'

'Unauthorised work may often destroy historic fabric, the special interest of which cannot be restored by enforcement. Moreover, well publicised successful prosecutions can provide a valuable deterrent to wilful damage to, or destruction of, listed buildings, and it is the Secretary of State’s policy to encourage proceedings where it is considered that a good case can be sustained.'

Those carrying out works to historic buildings (be they owners, agents or contractors) need to reminded that unauthorised works, damage or failure to comply with a Listed Building Enforcement Notice is a criminal offence and can result in a fine of up to £20,000 per offence in the Magistrates Court with more serious sentences in the Crown Court, as well as having to meet the local authority’s costs.

For some years the Institute of Historic Building Conservation has been maintaining a national database of listed building prosecution fines and is always interested to hear of cases, irrespective of whether these successfully imposed significant penalties or where only a small fine or conditional discharge was levied. The data is helpful in building up a picture of the level of activity, assisting better practice and encouraging more consistency in sentencing, and encouraging more authorities to consider prosecution where appropriate. Details of cases should be forwarded by e-mail to bob.kindred@ipswich.gov.uk.

 

BOB KINDRED MBE BA IHBC MRTPI is Borough Conservation Officer for Ipswich Borough Council and a Heritage Advisor to the Local Government Association and Vice-Chair of the IHBC Law & Practice Committee.

 
 

This article is reproduced from The Building Conservation Directory, 2003

Update, September 2012
Recently there have been several significant changes in UK government planning guidance and policy.


In England Planning Policy Guidance Note 15: Conservation of the Historic Environment (PPG15, 1994) and Planning Policy Guidance Note 16: Archaeology and Planning (PPG16, 1990) have been cancelled by the Government. Initially replaced by Planning Policy Statement 5 (PPS5) in March 2010, current policy guidance for England is now given in the National Planning Policy Framework (NPPF) issued in March 2012. Further guidance is proposed, but in the meantime the guide which originally accompanied PPS5 remains in force - see PPS5 Historic Environment Planning Practice Guide.


In Scotland the principal statutory guidance on policy is now Scottish historic environment policy (SHEP), which was published in December 2011, with subsidiary guidance given in Historic Scotland’s Managing Change leaflets. These documents together replace the Memorandum of Guidance on Listed Buildings and Conservation Areas published in 1998.

Author

CHARLES MYNORS FRTPI MRICS IHBC Barrister was a conservation officer before going to the Bar. He now has a successful practice (in the Chambers of Robin Purchas QC in the Temple) giving advice and appearing at inquiries and in court. His clients include local authorities and English Heritage. The third edition of his standard textbook, Listed Buildings, Conservation Areas and Monuments, was recently reprinted. His most recent book is The Law of Trees, Forests and Hedgerows. He is a well-known speaker at professional conferences, and is Chancellor of the Diocese of Worcester.

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