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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McGrath v. Portland Construction Ltd. [2002] IEHC 75 (5 July 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/75.html Cite as: [2002] IEHC 75

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McGrath v. Portland Construction Ltd. [2002] IEHC 75 (5 July 2002)

THE HIGH COURT

RECORD NO. 2001 NO. 14542P

BETWEEN

PAUL MCGRATH AND ORLA DEASY

PLAINTIFFS

AND

PORTLAND CONSTRUCTION LIMITED

AND

ANABOLE CONTRACTORS LIMITED

DEFENDANTS

Judgment of Mr. Justice McCracken delivered the 5th day of July, 2002.

1.      The Plaintiffs are husband and wife who jointly agreed to purchase a house to be erected as one of a development of ten houses known as Hill Farm just off Model Farm Road in the city of Cork. The first Defendant was the owner of the lands on which the houses were to be built and the second Defendant was the contractor responsible for the building of the house.

2.      By a Contract for Sale dated 20th December, 1999 and made between the first Defendant of the one part and the Plaintiffs of the other part the Plaintiffs agreed to purchase the site on which the house was to be built for the sum of £82,500. The contract was conditional on the Plaintiffs also entering into a building contract of the same date. This contract for sale contained a clause which it is not necessary to recite in full, but effectively permitted the first Defendant to rescind the Contract for Sale if, prior to taking possession of the house, the Plaintiffs should raise any objections in relation to the building of the house which the first Defendant as building contractor should be unable or unwilling to remove comply with or satisfy. In fact the first Defendant was not the building contractor, but fortunately it is agreed that I do not have to consider the construction of this clause.

3.      On the same date the Plaintiffs entered into a building agreement with the second Defendant whereby the second Defendant agreed to erect a dwelling house on the site in accordance with plans and specifications which were agreed for the sum of £247,500, this sum to be paid by way of a number of stage payments.

4.      The Contract for Sale of the site provided that the sale should be closed on the date on which the first floor joist completed stage payment falls due, while the building contract provided that the building would be completed and made fit for habitation and use within twelve months from the date thereof.

5.      While the second Defendant was the contractor under the building contract, in fact the entire works were subcontracted by it to a firm called Donal Murphy (Upton) Limited. This subcontractor in turn subcontracted the plumbing works to Liam Hill and the electrical works to Gerry O'Shea. It should also be noted that in the building contract there was no provision for any extras, and in fact any extras that the Plaintiffs required were arranged by them with the subcontractors directly.

6.      The house was a two storey house, but the plans and specifications provided that the attic would be fully floored and would have three velux windows and a pull down stairs and attic trusses so that it could be converted into living space at a later date. However, and this is central to the case, the attic was not insulated or plastered. The house had an advanced central heating system which divided the house into zones which could be heated individually. There was provision in the central heating system for five zones, three in the house as built, one available for the attic and one available if a conservatory were added on.

7.      While the house was been built the Plaintiffs had a discussion with Liam Hill, the plumbing subcontractor. He suggested that radiators should be fitted in the attic, and told the Plaintiffs this had been done in one of the neighbouring houses. The Plaintiffs instructed Liam Hill to fit the necessary pipes and radiators in the attic, and also instructed Gerry O'Shea to make the necessary electrical connections to the pump. This was a private arrangement between the Plaintiffs and Liam Hill, who invoiced the Plaintiffs for their job and was paid by them. Neither the main subcontractor nor the second Defendant contracted to do this work nor did they get paid anything in respect of it.

8.      It is this work that is given rise to what is now the only real dispute between the parties. It was a term of clause 12 of the special conditions of the building contract that the Defendants would provide a certificate and opinion of an Architect/Engineer in the form of a draft which was contained in the book of documents agreed at the beginning of the transaction. This was to certify, inter alia, that:-

"the relevant works and the services therefore have been constructed in substantial conformity with the building regulations made pursuant to the Building Control Act, 1990".

9.      The Defendants have refused to furnish such a certificate on the grounds that the works carried out in the attic, and in particular the provision of radiators and a working heating system, are in fact in breach of the Building Regulations. Part L of the second schedule to the Building Regulations, 1997 provides under the heading conservation of fuel and energy:-

"A building shall be so designed and constructed as to secure, in so far as is reasonably practicable, the conservation of fuel and energy."

10.      Paragraph 0.5 of the technical guidance document in relation to the 1977 Building Regulations, which is issued by the Department of Environment, provides that:-

"Unheated ancillary areas such as conservatories, porches, garages and the like, to which the regulations apply, do not require specific provision for the conservation of fuel and energy provided such areas are separated from the main building by elements which satisfy the requirements of Part L."

11.      In the present case, the attic is separated from the rest of the building by a floor which has the necessary insulation to satisfy the requirements of Part L. Although attics are not specifically mentioned, I have no doubt that they come within the phrase "unheated ancillary areas." The provision at clause 0.5 then continues by allowing a heating facility for occasional use and frost protection in some conservatories under certain very specific conditions, but this relates only to conservatories and not to other ancillary areas. Following that provision there is then the statement:-

"Other conservatories and ancillary areas should be treated as an intrical part of the building and assessed for compliance with Part L on this basis."

12.      I have no doubt that the meaning of this in relation to the present circumstances is that the attic is an ancillary area, which therefore must be separated from the rest of the house by some form of insulation which satisfies Part L, and taking the attic as a separate unit, it itself must comply with Part L. If, as is the normal case with an attic which is not used as part of the dwelling, the attic has no heating at all in it, then effectively Part L does not apply, because there will be no heat loss. On the other hand, if the attic is to be used as part of the house, and in particular if it has heating in it, then it must be insulated sufficiently to comply with Part L.

13.      The attic in this case as it now stands contains radiators which, while they form part of the general heating system for the house, can also be treated as a separate zone. They are connected to the main system and are in full working order. In my view the presence of the radiators as now fitted does constitute a heating unit in the attic. As the attic is not insulated in accordance with the Regulations, it clearly does not comply with Building Regulation L.

14.      Evidence has been given by Engineers on behalf of both parties that if the heating system is capable of being activated as it is installed, an unqualified Certificate of Compliance with the Building Regulations could not be given. There are some differences of opinion in relation to what needs to be done to make the premises comply. The Defendants Engineer suggested either the attic must be insulated in accordance with the Regulations or the system must be removed, while the Plaintiffs Engineers suggest that it would be sufficient to remove the battery from the thermostat or to disconnect the electrical connection to the pump for this zone, so that while the system would be in place, it could not work because of the lack of electrical power. If indeed the Plaintiffs Engineer is correct, then I find it very strange that this action was not taken or suggested by the Plaintiff at an early stage. However, I do not think that for the purpose of this action I have to decide the exact limitations of what would bring the attic within the Building Regulations. I understand it is not particularly expensive process to actually insulate the attic, which is the solution recommended by all the Engineers.

15.      In any event, I have no doubt that the house as built did not comply with the Building Regulations, and that no Architect or Engineer would grant a certificate of compliance, or even of "substantial compliance". The offending work was carried out by subcontractors directly engaged by the Plaintiffs for that purpose, and not by the Defendants or even by the main subcontractor. That being so, the Defendants were perfectly entitled to refuse to furnish a Certificate of Compliance with Building Regulations as was provided for in the contract, and accordingly the Plaintiffs are not entitled to a degree of specific performance.

16.      The Plaintiffs are, however, entitled to complete either on the basis that they do not get a Certificate of Compliance with the Building Regulations, or if they carry out such works as will enable a certificate to be given. In either event, completion will then be in accordance with the terms of the contract.

17.      In the original civil bill the Plaintiffs also alleged that the Defendants failed to complete the building within the completion period as defined in the building agreement, that is twelve months from the date of the agreement. It is not quite clear from the evidence as to exactly when the house was completed, but it would appear to have been some time in late February or March, 2001. In fact the Plaintiffs stayed with the second Plaintiffs parents until mid March, and had they closed the sale at that stage they would not have had to pay any rent. However they undoubtedly suffered some considerable inconvenience due to the house not being completed on time, and I would award €2,000 damages for such inconvenience.

18.      Finally, the Defendants counter-claimed that they had rescinded the contract and claimed an order for rescission of the contract and damages for breach of it. They did effectively abandon the claim for rescission, but in any event I am quite satisfied that the building contract did not contain any rescission clause, and a purported rescission was of no effect. As far as damages are concerned, there has of course been a delay in the payment of the balance of the purchase money, but any loss thereby incurred can be dealt with under the terms of the building contract.

19.      I should say that this is a dispute which ought never to have taken place had the parties adopted more reasonable attitude. A solution to the building regulations problem ought to have been very easy to agree, but unfortunately both parties took it on themselves to adopt negative tactics towards the other where a little co-operation at an early stage would have resolved the entire dispute.

20.      There will be a decree for the Plaintiff in the sum of €2,000 and I will hear arguments as to costs.