Cottingham v Attey Bower & Jones: Missing Building Regulations
Conveyancing Negligence: When Solicitors Fail to Spot Missing Building Regulations
Purchasing a property is one of the most significant financial commitments a person can undertake, and conveyancing solicitors play a vital role in safeguarding their clients’ interests. When professional duties are not properly discharged, particularly in relation to regulatory compliance, the consequences can be severe. The High Court decision in Cottingham v Attey Bower & Jones (a firm) [2000] PNLR 557 (Ch) remains a leading authority on solicitor negligence in conveyancing transactions. It underscores the importance of thorough due diligence, including the duty to identify and advise upon missing building regulations approval. This article examines the case and its continuing significance for conveyancers, legal professionals, and property buyers concerned about professional negligence, defective title risks, and regulatory oversight failures.
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Introduction
Cottingham v Attey Bower & Jones (a firm) [2000] PNLR 557 (Ch) involved a claim of professional negligence against solicitors in a house purchase, and it rattled the conveyancing world by highlighting the importance of checking building regulation approvals during property transactions. For both legal professionals and clients, the case illustrated why due diligence on planning and building consents is critical.
Background of the Case
In Cottingham, a couple, Mr. and Mrs. Cottingham, purchased a house on which the seller had carried out extensive renovations and extensions about 8 years earlier. Unbeknownst to the buyers at completion, the property had serious structural defects related to those past works. Importantly, the seller did not have building regulation approval for the works and had not answered correctly pre-contract enquiries about it. The buyers’ solicitor, Attey Bower & Jones (“ABJ”), had followed then standard practice by asking the seller, via standard inquiries, whether any building regulation consent had been obtained for recent work – typically defined at that time as work in the last 12 months. The sellers responded that they had no such certificate. In fact, building regulation approval had been applied for and twice refused by the local authority back when the renovations were done, but this was not disclosed to the buyers.
Compounding the problem, the buyers had commissioned surveys, the lender’s valuation report and a structural survey. While some issues were noted, the structural survey negligently missed key structural problems. The surveyor was uninsured and thus not a viable source of recovery, and the buyers also chose not to pursue the seller for misrepresentation, likely due to practical or financial reasons. After purchase, the buyers discovered that the house required expensive remedial works to fix the defects that should have been prevented or disclosed. They ultimately sued their solicitors (ABJ) for professional negligence, claiming that if they had known about the lack of building regulations approval and the attendant risks, they would not have proceeded with the purchase. The Cottinghams sought over £40,000 in damages, the cost of necessary rectification works and related losses.
Court’s Decision and Legal Analysis
The High Court (Chancery Division, Rimer J) found that the conveyancers (ABJ) had breached their duty of care to the buyers and were negligent. The court identified several key failures in the solicitors’ conduct:
Failure to obtain proof of building approval:
The solicitors had asked the standard inquiry about building regulation consent, indicating they knew it was an important issue, but when the seller answered that no approval document was available, the solicitors did not take further reasonable steps to verify or obtain the approval. In other words, the importance of seeing the building regs approval did not disappear simply because the vendors said they did not have a copy. A reasonable solicitor should have pursued the matter, for example, by making additional inquiries of the local authority or insisting on evidence,rather than dropping the issue. At minimum, they should have informed the buyers that no approval was obtained and explained the significance.
Failure to advise of the risks:
Crucially, the solicitors failed to warn the clients about the potential risks arising from the lack of a building regulations certificate. The court held that ABJ should have explicitly advised the Cottinghams that proceeding without proof of building regulations approval was risky, including the possibility that approval had been refused, as was actually the case, and that the works might be substandard. They also should have explained the legal ramifications, notably that even though more than a year had passed since the works, the local authority could still take enforcement action by way of an injunction. Under the Building Act 1984, section 36, while the council’s power to issue an enforcement notice for building regulation breaches expired after 12 months of completion, there was no time limit for the authority to apply to the court for an injunction to remedy non-compliant work. At the time, many conveyancers limited their inquiries to recent work, past 12 months, assuming older alterations were “safe” from enforcement. The Cottingham judgment made clear this assumption was flawed: there was no justification for limiting the enquiry to twelve months given the spectre of an injunction under s.36(6) of the 1984 Act.
In essence, ABJ had followed the 1990s Law Society Conveyancing Handbook guidance, which focused on recent works, but the court found this inadequate. A reasonably competent solicitor should have looked beyond the one-year window and either obtained the historical approval documents or fully informed the client of the missing approval and its implications. Had they dug deeper, the solicitors would have discovered that building control approval had been twice refused, a red flag that likely would have led the buyers to investigate further or reconsider the purchase. Indeed, the judge noted that knowledge of the refusal would have prompted a closer re-examination of the surveyor’s report which had wrongly assumed the works complied with regulations.
The court concluded that the solicitors’ negligence caused loss to the claimants. If properly advised about the lack of approval, and the attendant risk of structural issues and enforcement, the Cottinghams testified they would not have bought the house. Therefore, they overpaid for a defective property. The measure of damages was the difference in value of the house with and without the defects (essentially the cost of necessary repairs). While the claimants initially claimed £40k, the court did reduce the award: some of the defects had actually been noted in the surveyor’s report pre-purchase and were risks the buyers knowingly assumed. Excluding those, the court awarded roughly £8,200 in damages for the remaining loss attributable to undisclosed defects. In summary, judgment was entered for the Cottinghams, establishing the solicitors’ liability for negligence.
Impact on Conveyancing Practice (Lessons Learned)
Cottingham v Attey Bower & Jones has had a lasting influence on how solicitors handle transactions, especially where a property has been altered or extended. The lessons learned can be summarised as follows:
Building Regulations Checks are Mandatory:
It is now standard practice for a buyer’s solicitor to investigate all material works carried out on a property, regardless of when they occurred. Before 2000, many solicitors routinely ignored older modifications, beyond 12 months, on the assumption that the risk of enforcement was time-barred. That approach was judged negligent in Cottingham. Today, conveyancers know they must obtain copies of any building regulation approval certificates or final completion certificates for significant renovations no matter how old. In practice, this means raising detailed enquiries about extensions, conversions, structural alterations, etc., and not being content with vague assurances from the seller.
No Time Limit on Risk (Enforcement Exposure):
It must be appreciated that the legal risk from unapproved works does not vanish just because work was done long ago. Section 36 of the Building Act 1984 allows local authorities to seek a court injunction at any time to force compliance or removal of non-compliant work. Thus, even if the usual 12-month enforcement notice period had passed, a buyer who inherits non-compliant work could face costly consequences years later. The Cottingham case referenced this injunctive threat as a reason to widen the scope of inquiries. Solicitors should explain to clients that an old loft conversion or extension without the proper sign-off can still come back to haunt them, for example, a council could demand alterations or demolition, or refuse to sign off future works until issues are fixed. In 2023, this risk was further amplified by legislation, the Building Safety Act 2022 extended the time limit for serving building regulation enforcement notices from 12 months to 10 years. This significant change means that even works completed up to a decade prior can now trigger formal enforcement action by a local authority, in addition to the enduring possibility of an injunction. Conveyancers must factor this extended window of liability into their advice; no one should assume that older alterations are “safe” from scrutiny simply due to the passage of time.
If required documents, building regulations approval or completion certificates, cannot be obtained, the solicitor must advise the buyer of the potential risks in clear terms. This advice should cover several points, as recommended in modern practice: (a) the lack of approval might indicate the works were substandard or unsafe (so the buyer should consider a structural engineer’s inspection); (b) there is a possibility of enforcement action, while a formal notice was historically time-barred after a year, the buyer could face an injunction or, now, even a late enforcement notice under the new 10-year rule; and (c) options to mitigate risk. All such advice should be given before exchange of contracts so the buyer can make an informed decision. It should be documented in writing for the file.
Mitigation Options Regularisation or Insurance:
In situations where building regulation consent or a completion certificate is missing, two main options are typically discussed: retrospective approval, regularisation,or legal indemnity insurance. A retrospective building regulations application can be made to the local authority to certify the works after the fact, but this can be risky, the council might refuse approval and instead require extensive remediation. It’s also time-consuming and could delay the transaction, potentially derailing the sale. The more common solution, if the defect seems relatively minor and no immediate safety issue is evident, is to obtain a legal indemnity insurance policy. These policies protect the buyer, and usually their lender, against losses if the local authority later takes enforcement action for the lack of building consent. One important condition is that no one contacts the local authority about the issue before policy inception, contacting the council can alert them to the violation and void the chance for insurance. Indemnity insurance has become a routine tool ,it can often be arranged within minutes online and provides coverage in perpetuity for the cost of compliance or diminution in value if enforcement occurs.
In Cottingham, had such insurance been in place, the solicitor’s duty to investigate might have been somewhat alleviated, but absent that, the onus was on the solicitor to investigate or warn. Modern conveyancers will typically either obtain the missing approval or secure an indemnity policy (with the client’s consent), and document the file accordingly. However, recent changes to the law may affect this safety net, with the enforcement period now extended to 10 years, insurers have signaled that the availability or cost of indemnity cover may be adjusted to reflect the longer risk window. In other words, practitioners might find some insurers less willing to insure older works, or only doing so at higher premiums, now that councils have much more time to enforce non-compliance.
Completion Certificate / Guarantee of Compliance:
It is crucial to understand, and to advise clients, that even having a building regulations completion certificate does not guarantee that the work is actually compliant or free from defects. Building control inspections are generally carried out on a sample basis; corners can be cut or mistakes overlooked. If substandard work slips through and later causes issues, the homeowner typically has no legal recourse against the building control authority or inspector for having approved the defective works. In most situations, a council or private inspector cannot be sued in negligence for failing to spot defects. Local authorities’ duties under building regulations are largely discretionary, the law gives them powers to act, for example, to address dangerous structures under sections 77–78 of the Building Act 1984), but not an absolute duty to guarantee safety. In R (Gresty & Anor) v Knowsley MBC [2012] EWHC 39 (Admin), homeowners who discovered defects in their property tried to compel the council to rectify or compensate for the shortcomings of its building control, but the court refused their judicial review claim, confirming that no private law duty of care was owed. The takeaway is that a completion certificate is a valuable document and should be obtained whenever possible – but neither clients nor solicitors should treat it as an infallible shield. The ultimate responsibility for building quality lies with those who designed and carried out the work (and potentially those who warranted it, such as developers under new home warranties). If a problem emerges despite a certificate, the buyer may need to rely on those parties or on mechanisms like NHBC warranties or the Defective Premises Act, rather than any claim against building control. This reality underscores why thorough due diligence and independent surveys remain important, even if the paperwork appears to be in order.
Updated Standard Enquiries:
Standard conveyancing practice after Cottingham and protocols were updated. Sellers are now generally required to disclose all works and whether the appropriate planning permissions and building regulation approvals were obtained, regardless of age. For instance, the Law Society’s Property Information Form (TA6) and typical pre-contract enquiries ask specifically about any alterations and the existence of relevant consents or certificates. A prudent buyer’s solicitor should follow up on any indication of works, even historical, by asking for copies of approvals or explaining the absence of them. Some practitioners use a rule of thumb, for example, checking the past 10 years of work to align with certain planning law limitation periods, but the safest course is not to ignore older modifications, especially if they appear significant, such as a 20-year-old extension. The bottom line is that the Cottingham case shifted the culture, a solicitor who overlooks a missing building regs certificate does so at their peril.
Related Planning Permission Issues:
Although Cottingham dealt with building regulations, conveyancers similarly must check for proper planning permission for past works. A lack of planning consent can also trigger enforcement, though planning law has different time limits usually 4 years for unauthorised building works, 10 years for changes of use, etc., with no limitation if there was deliberate concealment or for listed buildings. The principle remains: missing permissions can cause a sale to fall through or lead to legal action, and a solicitor is expected to spot these issues. In practice, the solution is often indemnity insurance if retrospective permission is impractical. Many lenders will require either evidence of consent or an indemnity policy before lending on a property with an undocumented extension. So, Cottingham’s legacy extends to a heightened awareness of all consents,building regs and planning, in conveyancing transactions.
Building Safety Act 2022 and the New Building Control Regime
In the wake of tragedies like the Grenfell Tower fire (2017) and the ongoing issues exemplified by RG Securities, the UK government undertook a major overhaul of building safety regulation. The result was the Building Safety Act 2022 (BSA 2022), which introduced sweeping changes to building control and accountability. Many of its provisions took effect on 1 October 2023, significantly altering the landscape in which conveyancers and their clients operate. Key aspects of the new regime, and their implications for solicitor due diligence, include the following:
New Building Control Framework:
With effect from October 2023, the Building Act 1984’s building control regime has been extensively reformed. Notably, oversight for design and construction of certain buildings has been centralised under a new national regulator. For higher-risk buildings (HRBs), broadly, buildings that are at least 18 metres high or have 7+ storeys and contain residential units, the local authority is no longer the sole building control authority. Instead, a dedicated Building Safety Regulator (housed in the Health & Safety Executive) supervises building control for these HRBs, with more stringent procedures and gateway approval stages. In practice, this means if a client is buying a flat in a newly constructed or converted high-rise block, the solicitor must verify that the building has been through the new approval process. For new HRBs, there will be a different set of compliance documents, for example, a Gateway completion certificate or a Building Assessment Certificate issued by the regulator upon occupation (confirming the building’s safety case has been assessed). Conveyancers should ensure that any required certificates under the new regime are provided in the contract package, just as one would expect a building regulations completion certificate under the old regime. The principle remains the same: no matter who the sign-off comes from, local council, private approved inspector, or now the Building Safety Regulator, evidence of compliance is vital. Moreover, practitioners need to stay alert to the evolving administrative requirements. For instance, all existing high-rise residential buildings had to be registered with the Building Safety Regulator by October 2023 under the Act’s transitional provisions, failure to register is an offence. A solicitor acting for a buyer of a flat in such a building should inquire and confirm that the building is duly registered and, if applicable that a Building Assessment Certificate is either in place or in process according to the statutory timetable.
Extended Enforcement Periods:
The BSA 2022 has significantly lengthened the timeframe during which building regulation breaches can be formally enforced. Under the previous regime, councils had only 12 months from completion of the works to serve an enforcement notice, an order to alter or remove non-compliant work, though they could apply for a court injunction without time limit. Section 39 of the BSA 2022 amends the Building Act 1984 to extend the time limit for enforcement notices to 10 years . It likewise extends the period for prosecuting building regulation offences (which was 2 years) to 10 years. Importantly, these longer periods apply not only going forward but also retrospectively in some case, if a violation occurred in the past but was still within the old limitation period as of October 2023, the clock is effectively extended to 10 years total. The practical effect for conveyancers is a further elevation of the risk associated with undocumented works. A homeowner who did unapproved works, say, 5 or 6 years ago was previously very unlikely to face any enforcement notice, since the one-year window had long passed, and the threat of a council seeking an injunction decades later was remote. Now, however that homeowner remains squarely within the enforcement period. A buyer of such a property could receive an unpleasant surprise if the council discovers the breach a few years down the line. This change reinforces the need for robust inquiries about alterations carried out within the last decade, and it may justify expanding the standard period that solicitors look back for approvals. In contract terms, buyers may start insisting on warranties or indemnity insurance covering a 10-year period of works. Indeed, conveyancers should be aware that indemnity insurers are closely watching these developments, an insurer’s willingness to cover lack of building regulations may diminish for relatively recent works, now that the potential liability period is much longer .
Indemnity Insurance Constraints:
For years, legal indemnity insurance has been the fallback solution to cover breaches of building regulations, and planning discovered during due diligence. The extended enforcement window under BSA 2022 is testing this model. Insurers price their policies based on risk and if the risk period expands from 1 year to 10, the calculus changes. Early indications in the market are that premiums are rising for building regulation indemnity cover, and some insurers may impose new conditions, or refuse cover for situations involving post-October 2023 works where the full 10 year exposure still lies ahead . Solicitors should not assume that a quick insurance fix will always be available as it was in the past. Best practice in light of this is twofold: preventive due diligence, try to obtain proper sign-off for recent works via the seller or regularisation, if feasible, and, if insurance is the only option, early engagement with insurers to confirm that a policy can be obtained on acceptable terms. Also, the extended enforcement horizon makes it more important to scrutinise policy wording: most indemnity policies cover the homeowner in perpetuit, until the issue is resolved and will pay out even if action is taken 20 years later, but if insurers start capping coverage or excluding certain long tail risks, the client needs to be informed. Ultimately, while indemnity insurance remains a useful tool, it should be seen as a last resort, not a substitute for obtaining consents, especially in this new era of greater regulatory scrutiny.
Greater Accountability for Defects:
The BSA 2022 didn’t stop at procedural changes; it also expanded the avenues of legal recourse for building defects. A long-dormant provision, section 38 of the Building Act 1984, has been brought into force, meaning that a breach of building regulations that causes damage can now give rise to a civil claim for damages. Section 38 had existed in law but was never commenced; its activation is a significant development, allowing individuals to potentially sue those responsible for non-compliant work without needing to prove negligence, solely on the basis of breach of regulations. Any such claim will be subject to a 15-year limitation period from the date of the work . In addition, as noted above, the Act dramatically extended limitation periods for certain historic claims, for example, the time limit for bringing a claim under the Defective Premises Act 1972 (which imposes duties on those involved in constructing dwellings) has been extended from 6 years to 15 years for new cases, and a one-time retroactive extension to 30 years was applied for past cases where the usual limitation had already expired . These changes mean that developers, builders, and construction professionals are exposed to legal liability for much longer periods. For conveyancers advising purchasers, this is a double-edged sword: on one hand, clients have more potential remedies if they find latent defects, even many years after construction; on the other hand, it reinforces how crucial it is to get things right at the outset. A solicitor should still strive to ensure the client is not buying a problem to begin with the existence of a longer statutory claim is no substitute for proper diligence and negotiating appropriate contractual protections. Nonetheless, when explaining risk, lawyers can inform clients that the law now provides stronger fallback options if, for example, a flat they buy today is later discovered, within 15 years, to have been built unsafely. This may influence how one evaluates older issues as well for instance, in a conversion done in 2010 that lacks a completion certificate, the buyer now might still have a DPA 1972 claim against the converter if the work proves defective, since 2010 is within 15 years of 2025.
Conclusion
Cottingham v Attey Bower & Jones is remembered as a cautionary tale for solicitors and clients alike. For legal professionals, it fundamentally changed the standard of care expected in property transactions: a conveyancer must proactively investigate and advise on building regulation approval for past works, or face potential negligence claims. Checking the paperwork is not a mere formality but a crucial aspect of protecting a purchaser’s interests. It led to more rigorous enquiry routines and greater use of tools like indemnity insurance to manage residual risks.
For clients, homebuyers and property investors, the legacy of Cottingham is equally important. Buyers should be made aware that a missing building regulations certificate is a red flag that can materially affect a property’s value and safety, and that it’s worth pausing a transaction to get to the bottom of such an issue. Indeed, a buyer who unknowingly purchases a house with unapproved alterations could end up bearing significant costs, they might have to undertake remedial works or even face legal action requiring part of the property to be altered or removed, years after purchase. In the worst case, as the Cottinghams experienced, the buyer may have to sue their professional advisors to recover losses, an unpleasant scenario for all involved.
The key lessons learned are clear. Conveyancers must diligently verify that all necessary planning and building regulation approvals are in place, or advise on the risks if they are not, for any property they handle. They should never assume that older works can be ignored.
The decision in Cottingham v Attey Bower & Jones remains important in the law of professional negligence, and conveyancing. It established that a solicitor’s failure to obtain or investigate missing building regulations documentation may constitute a breach of duty, exposing the firm to liability for losses arising from undisclosed defects. In an era of heightened regulatory scrutiny, especially following the Building Safety Act 2022, the legal responsibilities of conveyancers are more stringent than ever. At Carruthers Law, we specialise in professional negligence claims, including cases involving conveyancing errors, failure to investigate consents, and overlooked risks during property transactions.
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