# Legal Dispute with Builder & planning advice



## Byrnsie2112 (13 Jan 2011)

We are currently in a dispute with a builder who carried out renovation works to our dwelling house. As it turned out there were numerous defects for which will cost large sums of money to remedy. The builders BOQ  which the contract was based on was also full of errors, claiming overvalued additional works which were never agreed and even works which were never carried out. However long and short at the time of building, the original plans changed for which we had planning and we proceeded with alternative plans for which we did not have planning permission for. 

A highcourt date has been set for 10th February 2011, retention has been applied for but is still in early stages and is not granted as of yet and will not be received in time for the highcourt date. We were told legally that we would have had a very strong case, but under the circumstances on account of the fact we did not have planning and have not been granted retention as of yet, we are at a major disadvantage and stand to lose everything in court. This is despite numerous structural faults throughout the building which we have certified engineering reports.

Can you advise please? As you can understand it is quite worrying.


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## Brendan Burgess (13 Jan 2011)

It's very difficult for anyone to advise you on this other than your solicitor. 

What is your solicitor saying?


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## onq (13 Jan 2011)

Hi Byrnsie2112

You have left it very late to be seeking guidance on this matter from the AAM forum.
I wouldn't be confident that the case will be helped to a significant degree by a permission.

Allow me to put matters to you as if I were the Contractor's Barrister and you were a witness.
_"I have included comments he might also make in inverted comments in italics."_

1. You are alleging defects in a house extension and renovation which has been built without benefit of planning permission._
"The contractor didn't build an unauthorised structure compliantly."_


2. You also seem to be alleging that a builder has built defective work without the benefit of an architect having been involved.
_"We didn't appoint an architect, pay for a set of working drawings or make sure that limited inspections by a professional occurred and now it looks like the building is badly built ."_


3. You changed the design for which you had permission, and I assume this was done during the build.
_"We asked the builder to build a particualr design, agreed a price then changed our mind in the middle of the project."_


None of these statements is likely to impress a Court in my opinion.

Nor can you take huge comfort from the fact that you have an engineer involved if he also certified payments.
Depending on when and how the defects manifested themselves the competence of whoever certified the payments may be called into question.
If the defects had been covered up on the dates of the inspections and their existence could not be inferred from a visual inspection, you may have a case.


ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                                        as a defence or       support  -     in     and    of        itself  -         should             legal             action        be           taken.
Competent legal and building professionals should be asked to advise in                                                        Real Life with    rights    to         inspect     and       issue         reports    on        the                    matters    at           hand.


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## Bronte (14 Jan 2011)

Does it matter if the building is not planning complaint. Isn't that a separate matter. Surely what matters is whether whatever was built was built properly. 

Can you give us an idea of the defects. 

Whatever about the rights and wrongs of it, it's a very brave person indeed who would go to the High Court. How much is the cost of the repairs and how much is the cost of High Court if you lose?

Is your High Court case only in relation to the structural defects (with your engineeer's report) and is the builder defending this on the basis that he has an engineeer's report saying it is built correctly. Is the planning issue part of the case in any way.


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## threebedsemi (14 Jan 2011)

In my opinion, it is a builders responsibility to build in accordance with the building regulations. This requirement stands even if what he is building does not have planning permission, or if there is no engineer or architect involved The planning and building regulations are completely separate statutory instruments.

Were any photographs taken during the works which would be most useful now in ascertaining the quality of what has not been covered up?

If the contractor is registered, you might be better approaching the Construction Industry Federation with a view to ADR before proceeding to the high court (Alternative Dispute Resolution such as mediation or conciliation) as this may be sufficient to resolve the matter.

The best advice i can give you if you do end up in court is to appoint the best possible expert witness you can find to act on your behalf. The persuasive power of an experienced expert witness cannot be overstated in these instances.

BTW, any contract entered into to carry out an illegal activity is not a legal contract in the first place. Building without the relevant compliances is illegal activity, so the contract _may be_ thrown out in court.


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## Sconhome (14 Jan 2011)

Regardless of the state of the contractual issues the builder has a duty of care to build in accordance with the building regulations applicable at the time of the work being carried out.

If this has not been done then they can be held liable for the defective works irrespective of whether planning permission is legitimate or not. You may have a problem getting retention on the unplanned works if they are so defective as to be dangerous and if they are not in accordance with the building and planning regulations (consider different to planning permission) you will not get retention permission.

Is the engineer a separate entity from the builder? If they have certified works as being compliant and structurally sound there will be a further case to be answered here under a second liability case

If the engineer is from the builder's team then the engineer is a 3rd party to the case and will have to answer under the case against the builder. It seems that the certs have been "bought" for the sole purpose of covering up defective work to enable payment, so this can be characterised as fraud and misrepresentation of goods & services.

This really is a solicitor affair.


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## onq (14 Jan 2011)

As  has posted; -

_"The persuasive power of an experienced expert witness cannot be overstated in these instances."_

 Connecting the dots from building defects to major items under the contract to significant non-compliance items is his job.

Besides any outstanding claims for additional monies following variations on site, the balance of the case appears to rest on defective work.

Of course if this competent witness is then asked about complaince matters under both planning permission that sword could prove to be two edged.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                                         as a defence or        support  -     in     and    of        itself  -         should              legal             action        be           taken.
Competent legal and building professionals should be asked to advise in                                                         Real Life with     rights    to         inspect     and       issue         reports    on         the                    matters    at           hand.


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## onq (14 Jan 2011)

Bronte said:


> Does if matter if the building is not planning complaint.  Isn't that a separate matter.  Surely what matters is whether whatever was built was built properly.



"t doesn't matter if you have insurance as long as the car has its NCT."
Admittedly it may not be as clear cut or dramatic as that, but there are parallels.

The building regulations and the Technical Guidance Documents telll us how to build.
The planning permission confirms what we can build.

A wholly different house built on a wholly different part of the site, with a different septic tank and percolation area and both located in another location to that shown on the plans, with a completely different entrance does not have permission in any sense of the word.

Although it may amount to a single dwelling, all the elements of difference taken together would require mean the house would require a separate permission.

In my opinion there is a world of difference between what I have described above and a house located in the correct location, etc. but having some elevational changes, extensions or enlargement entirely to the rear and having a total area under 40 square metres.

In such a case the substantial part of the house could be deemed to be compliant in terms of planning law availaing of the exempted developmetn schedule, saving only that it was not first completed and then extended as the wording of most typical first Conditinos would require.

A lenient judge judge - or one who had this carefully explained to him, if such was the case - could decide to set the planning issue to one side and deal with the matter of what was built under the building contract, if indeed such a documetn exists.

Equally a judge may decide that ruling on a matter which is not strictly by the book was not within his competence, to cherry pick its transgressions, ignoring some and addressing others.

In such a case the judge may strongly suggest to both parties that they should explore mediation.
If he does, I suggest that both parties should do so and think twice before re-appearing.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                                          as a defence or         support  -     in     and    of        itself  -         should               legal             action        be           taken.
Competent legal and building professionals should be asked to advise in                                                          Real Life with      rights    to         inspect     and       issue         reports     on         the                    matters    at           hand.


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## Superman (19 Jan 2011)

The issue that your lawyers appear to be getting at is illegality and its effect on the contract. 

There is case law on how the nature of an illegality affects a contract. 
Here is a link on a good explanation: http://www.gillhams.com/dictionary/442.cfm

From the information available, I imagine it should be possible (as noted in this link) to claim for relief in a manner that does not refer to the illegality - i.e. the planning issues should be irrelevant.
You may wish to seek clarification from your solicitor as to why exactly he feels this is relevant.

Once this issue is dealt with, your claim in Contract seems quite strong.

Besides this, you should also be able to claim in Tort, which I do not believe would be affected by the illegality of the contract - though I am open to correction.  
If you do get clarification from your solicitor on any of these issues, you might post it.

Sconhome's post is also correct.


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## threebedsemi (20 Jan 2011)

The planning issues are irrelevant in your case, and should not be allowed to distract from the core issue. Unfortunately, some solicitors do not have a sufficient grasp of construction law and regulations to tease out issues such as these, which goes back to my earlier post that a construction professional with experience in these matters should be able to clarify things a bit for both you and your solicitor (if they are getting confused).


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## Bronte (21 Jan 2011)

onq said:


> "t doesn't matter if you have insurance as long as the car has its NCT."
> Admittedly it may not be as clear cut or dramatic as that, but there are parallels.


 
A wall is either built correctly or it is not, you don't need planning or building regulations or any other documents for that.


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## onq (21 Jan 2011)

Bronte said:


> A wall is either built correctly or it is not, you don't need planning or building regulations or any other documents for that.



Some walls do not require planning permission [under 2.0M to the rear of a property, under 1.2M to the front] others do.

If they do need permission and you don't have it and you build the wall under a contract with a builder, you have contracted to commit an offense under the planning laws.

As you cannot contract to do an illegal thing, in theory you may not be able to bring a case based on contract law.

This may also void the builders insurance which could have other implications for you as the procurer if a serious incidents, accident or injury occurred.

In practice, its normally up to the builder to make matters compliant assuming this can be done.

I'm off to read Supermans case law reference now.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                        as a defence or support - in and of itself -   should       legal        action    be      taken.
Competent legal and building professionals should be asked to advise in                        Real Life with rights to inspect and issue reports    on     the         matters    at      hand.


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## Bronte (21 Jan 2011)

I bow to your superior knowledge Onq but I'd never be able to get on in life if I had to think about doing things the way you do.


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## Superman (21 Jan 2011)

The point of my reference to illegality is that depending on how illegality affects the contract, a case may be brought - or not as the case may be.

Unless there is some unusual circumstances that I cannot think of, 3bedsemi's last post is correct.


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## onq (21 Jan 2011)

Superman,

I noted your reference to the legal position arises from English law, not the law of Ireland.
I don't know enough to comment definitively on that.
Are they equivalent?


ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                                          as a defence or         support  -     in     and    of        itself  -         should               legal             action        be           taken.
Competent legal and building professionals should be asked to advise in                                                          Real Life with      rights    to         inspect     and       issue         reports     on         the                    matters    at           hand.


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## Superman (21 Jan 2011)

onq said:


> I noted your reference to the legal position arises from English law, not the law of Ireland.
> I don't know enough to comment definitively on that.
> Are they equivalent?.



Yes.


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## onq (21 Jan 2011)

Superman,

I take your and 3bedsemi's points about the relevance of  illegality to the section of law under which the case is being tried [at  least I think that is what you mean ].

E.g - a case taken to the District Court under the Building Control Act  for a breach of building regulations or a non-compliance with a fire  safety certificate would not normally touch on any planning matters  which might be associated with the same development.

However if the house was grossly in breach of the planning acts and  someone was to bring a broadly defined case attracting comment on both  sections of law the judge could possibly form a view that the house as  constructed has no basis for existence under planning law and order it  pulled down.

More than likely he would only take this precipitous course of action on  foot of a separate section 160 action under the planning and  development Act 2000 as amended, requiring demolition, and for this to  be authoritative, it might need to come from the local authority.

I don't know that a judge would take this course of action if there was an extant application, permission or appeal going on.
In general and notwithstanding the somewhat draconian powers conferred  on the court by Section 160, the discision dismissing the Delgany  Residents case may be seen as psesuasive precedent, which IIRC rested on  the acceptance of the fact that while the quasi-judicial planning  process to An Bórd Pleanála remained incomplete, the High Court should  not act [sorry I don't have that reference] because to do so would be  premature.


ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                                           as a defence  or         support  -     in     and    of        itself  -          should               legal             action        be           taken.
Competent legal and building professionals should be asked to advise in                                                           Real Life with       rights    to         inspect     and       issue         reports      on         the                    matters    at           hand.


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## onq (21 Jan 2011)

Bronte said:


> I bow to your superior knowledge Onq but I'd never be able to get on in life if I had to think about doing things the way you do.



Well, its more knowing the route around the houses rather than superior knowledge 

On balance in this case 3bedsemi's and Superman's comments are likely to have more currency.

But I've seen some judges form opinions on matters not directly before the court or present in a different way.
The judge might form a view on the planning issue - technically not before the court - and inquire about it and make a decision.

Equally, many judges simply do not want to know about tehnical detailed builder's disputes and I'd be surprised if its not referred to arbitration.

But where the judge feels one or both parties rushed to law without being reasonable and or seeking to mitigate their repspective losses the decision might be other than either anticipated.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                                            as a defence   or         support  -     in     and    of        itself  -           should               legal             action        be           taken.
Competent legal and building professionals should be asked to advise in                                                            Real Life with        rights    to         inspect     and       issue         reports       on         the                    matters    at           hand.


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## onq (21 Jan 2011)

Superman said:


> Yes.



Well then, ignoring the references to the UK and Knighthoods 

... the phrase that caught my eye was _in pari delicto
_ 
Term: illegal contracts
*1.*
 Illegal Contracts are void _ab initio _at  common law provided the illegality was present at the time the contract  was formed and an exception does not apply. The exceptions to illegal  contracts (the contract will not be held to be void _ab initio_)are:  


the parties were not _in pari delicto_

==============

Term: in pari delicto
*1.*
 This phrase is used in English law to indicate  that the parties are both at fault and equally responsible for a  misunderstanding of the law.  In business disputes, it is usually used  in the context of determining liability between the parties, in that  neither party to a dispute is liable to the other, on the footing that  they are equally at fault for the relevant misunderstanding. 
 [Latin: in equal fault]


------------------

I'm not sure what the position in law will be for both parties in the present case.
They could both be at fault, one for requesting somethign that could breach the building regualtions, the other for constructing it.

Its a bit beyond the competence of this forum to sort out AFAICS.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                                             as a defence    or         support  -     in     and    of        itself  -            should               legal             action        be            taken.
Competent legal and building professionals should be asked to advise in                                                             Real Life  with        rights    to         inspect     and       issue          reports       on         the                    matters    at            hand.


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## onq (21 Jan 2011)

threebedsemi said:


> The planning issues are irrelevant in your case, and should not be allowed to distract from the core issue. Unfortunately, some solicitors do not have a sufficient grasp of construction law and regulations to tease out issues such as these, which goes back to my earlier post that a construction professional with experience in these matters should be able to clarify things a bit for both you and your solicitor (if they are getting confused).



I wouldn't assert "irrelevance" on any matter before a Court - certainly plannning breaches can be deeemed relevant by the judge.
Before you can start arguing the toss over whather you built it right, you need to establish you had the right to build it at all. 

Having said that, minor revisions should not undermine the right to built a substantially similar housee.
The degree of the breach that may determine whether or not this is to be taken into account.

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                                             as a defence    or         support  -     in     and    of        itself  -            should               legal             action        be            taken.
Competent legal and building professionals should be asked to advise in                                                             Real Life  with        rights    to         inspect     and       issue          reports       on         the                    matters    at            hand.


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## Sconhome (21 Jan 2011)

Another interesting debate ensues!

My understanding of this outline is that there is a case re the planning permission and a case re the building regulations, control act and the liabilities of the builder under duty of care and tort law.

Just because planning permission is needed and not sought does not exonerate the requirement to build properly. 

Yes you can have an illegal development under planning law but this does not mean you automatically assume the contract is illegal and has no grounding. An illegally build structure which is built properly has a much better foundation (like it?) for a case of retentive planning permission.

If it is built illegally and build in contravention of the building regulations then the case will crumble because you should / could never get planning permission for something which is not to the regs in the first place.

Bottom line- independent architect, independent structural engineer and independent contractor should be the minimum conditions required for granting of planning permission in the future. This should be endorsed by banks, builders and planners to ensure some quality into the future.


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## onq (22 Jan 2011)

Well Sconhome - with that last line you'll get no argument from me!

However, I'd like to "undermine" your argument in this line:

_"Yes you can have an illegal development under planning law but this does  not mean you automatically assume the contract is illegal and has no  grounding."_

What happens if you contract with a builder who builds a house for you which has got no planning permission?

Let's say you have misled him into believing it has permission and he builds in good faith?

ONQ.

[broken link removed]

All advice on AAM is remote from the situation and cannot be relied upon                                                              as a  defence    or         support  -     in     and    of        itself  -             should               legal             action        be             taken.
Competent legal and building professionals should be asked to advise in                                                              Real Life   with        rights    to         inspect     and       issue           reports       on         the                    matters    at             hand.


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## Sconhome (22 Jan 2011)

Onus of proof I would assume is on the 'professional' ensure all applicable permissions are in place.

Checks & balances.

If it was a case of deception I would expect that there is a civil case for the builder to chase with the client re fraud or deception. I would expect the court would not be sympathetic to the contractor.

However if there are drawings issued for construction the responsiblity for deception would be pushed back to the design team who should have ensured all applicable permissions had been obtained.

In the chain of professional the contractor will sit between the clients interpretation of the architect & engineers specification. Consider them as an interpreter who has to realise the practicalities of the design.


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## seantheman (7 Mar 2012)

Was this case ever resolved?


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## sunnydonkey (25 Mar 2012)

Interesting case. Woud like to hear the outcome as well, though maybe its still in the court system. 

I think the planning issue is indeed relevant.  

I would argue as follows if i was speaking for the builder:   

1. the building doesnt have permission; 
2. it may have to be pulled down; 
2. therefore it is worth nothing, it even has a negative value; 
3. ok it was badly built, 
4. but the mistakes of the builder have not caused the owner any additional loss over and above the loss he incurred to himself by getting an illegal structure constructed.


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