Debate contribution: Defective Premises Bill: Second Stage

Debate contribution by Mr Gordon Lyons on 3 June 2024.

MLA

Mr Gordon Lyons

Party at the time

Democratic Unionist Party

Date

3 June 2024

Type

Debate contribution (made as a minister)

Business

Executive Committee Business

Heading

Defective Premises Bill: Second Stage

Assembly identifier

Official Report component 4493627

Read the official Assembly record

Text

I beg to move

This is a short Bill of only four clauses. With the agreement of the Assembly, it will bring our citizens into parity with those in England and Wales so that there will be parity of opportunity to legal recourse should their home become uninhabitable due to a defect arising either from the construction of the dwelling or as a consequence of work carried out to it. It may help if I provide some background to the reason why that disparity has arisen. In the wake of the Grenfell tragedy, the UK Government carried out a root-and-branch review of the residential building safety regime and procedures in England. That eventually led to the introduction in England of the Building Safety Act 2022. That Act included provisions to amend the Defective Premises Act 1972 and the Limitation Act 1980 to increase the limitation period within which leaseholders can take action against developers when defects to their dwelling have rendered it uninhabitable. Following the publication of the Building Safety Act 2022, the Executive recognised that Northern Ireland citizens should be afforded the same level of safety as their counterparts elsewhere in the UK, and they commissioned the Department of Finance to establish an expert panel to examine the local position and report back. The report, which found issues similar to those identified in England, was published in December 2023. The report recognised that the building safety regime in Northern Ireland was much more fractured than elsewhere in the UK, with responsibility for safety falling between six Departments, 11 local authorities and a number of other public bodies. In January this year, a residential building safety division was established in my Department to take forward the report's recommendations. Work has already commenced on developing policy and legislation that will introduce a legislative framework that places us on a par with other jurisdictions and puts citizens' safety at the heart of the residential building safety procedures. I anticipate that a substantive Bill will most likely be introduced in the next Assembly mandate. While work on the new legislation has been proceeding, the outcome of the recent High Court case has cast a harsh light on the real disadvantages that that legislative disparity can bring to Northern Ireland homeowners. For that reason, I have sought to address the disparity as a matter of urgency by offering homeowners here the same recourse to legislative protection as those in other jurisdictions enjoy. Following my meeting with the AERA Minister and the Finance Minister, I undertook to legislate to address the disparity at the earliest possible opportunity, subject to Executive and Assembly approval. I am grateful for the support that Ministers Archibald and Muir offered, as it has helped work on the Bill to proceed at pace. I thank the Executive Committee for their agreement to bring the Bill to the Assembly. I will now focus on the content of the Bill. As I mentioned, the Bill consists of four clauses that introduce new provisions to two existing pieces of primary legislation, namely the Defective Premises (Northern Ireland) Order 1975 and the Limitation (Northern Ireland) Order 1989. It transfers the functions of the 1975 Order from DAERA to DFC and establishes that the Act will come into operation on the day after receiving Royal Assent. Clause 1 introduces a new article 4A to the Defective Premises (Northern Ireland) Order 1975 that extends the duties that exist in the Order to people carrying out work to a building that contains one or more dwellings. Previously, the Order applied only to new dwellings. The clause is a close replication of the equivalent provision in England and Wales, which was introduced by section 134 of the Building Safety Act 2022. Like that provision, it cannot be applied retrospectively to defects that arise before the commencement of the Bill. Clause 2 is broadly similar to the new provisions introduced in England and Wales by section 135 of the Building Safety Act 2022. It amends the Limitation (Northern Ireland) Order 1989 to introduce new limitation periods for actions taken in respect of defective buildings. With the introduction of the provision, the limitation period for actions taken for defects arising after the Bill commences is extended from six years to 15 years.

It also introduces a retrospective provision for actions taken under article 3 of the Defective Premises (Northern Ireland) Order 1975 — actions relating to the provision of a dwelling, in other words — extending the limitation period from six years to 30 years. Subsection (2) requires that any action taken under article 3 of the 1975 Order should be treated by the courts as if the new limitation period has always been in effect.

Subsection (4) requires the court to dismiss a case brought by virtue of the retrospective effect of the amendments on limitation if it is satisfied that it is necessary to do so to avoid a breach of the defendant's convention rights. The essential point to note is that the clause does not guarantee the success of a case brought under the new limitation periods. The plaintiff still has to prove his case. Subsection (5) prevents the new limitation periods —.

Yes, I will give way to the Member.

I will provide for the Member, before the end of the debate, the relevant rights. There are, obviously, a number that are applicable. I will get the precise wording for him. Subsection (5) prevents the new limitation periods being used in relation to claims that have previously been settled by agreement or finally determined by a court, whether on the basis of limitation or otherwise. I am aware that some people have expressed concern about how clause 2 might impact on cases that are being appealed. I can confirm that the intent of the clause is that it should apply where an appeal has been lodged with the courts or a where a case is still within the period in which an appeal may be lodged. Legal advice received from the Departmental Solicitor's Office (DSO) and senior legislative counsel has confirmed that the wording of the clause allows appeals to be brought under this legislation. In addition, in the case of URS Corporation Limited v BDW Trading Limited, the Court of Appeal in England ruled that the amendments brought about by sections 134 and 135 of the Building Safety Act explicitly allowed for their retrospective application and that, in cases in which proceedings were still open, the new limitation periods could be used. Clause 3 transfers the provisions of the Defective Premises (Northern Ireland) Order 1975 from DAERA to DFC. The Bill addresses residential buildings only, and, as responsibility for residential building safety now sits within my Department, it makes sense to transfer those provisions to DFC. Clause 4 allows for the provisions of the Bill to commence the day after it receives Royal Assent.

Give me a second. It is often said that our homes are the biggest financial investment that most of us will make in our lifetime. This legislation gives homeowners here the same opportunity as their counterparts in England and Wales to protect that investment where, through no fault of their own, the dwelling has been rendered uninhabitable due to defects caused during its construction or by work carried out on the property. It provides more time to hold to account those responsible for building the house or carrying out work on it, in order to ensure that the work is of the highest quality and is done using the best materials for the job. Maybe the Member could address his points in his contribution, and I will come back to him when I am summing up. I hope that Members will support the Bill's progress. I am happy to provide fuller responses on any issues that Members raise.

1,306 words. Text as published by the Northern Ireland Assembly.

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