Four years after the decision in Cottingham v Attey Bower & Jones [2000] PNLR 557, Raymond Perry looks at the continuing impact of the case on the world of residential conveyancing

Are home improvements always a good thing? Because they frequently require building regulations consent, residential conveyancers often don't think so.

Evidence of approval is easily lost - assuming that it was obtained at all.

Until recently, this was not a problem.

Where alterations were more than 12 months old, conveyancers would not normally investigate further, maintaining that enforcement proceedings were time-barred.

Issues relating to the condition of the property were a matter for the buyer's survey.

Or so it was thought.

This agreeable state of affairs came to an abrupt end with the judgment in Cottingham in March 2000.

Mr Justice Rimer decided that what had been long-established conveyancing practice was deficient.

The defendant solicitors, who had represented the buyers in a residential purchase in 1993, were held negligent for not attempting to obtain a copy of the building regulations approval for renovations carried out eight years earlier.

The vendors claimed that approval had been granted, although no copy was produced.

Had the defendants made additional enquires they would have discovered that approval had been refused.

Unfortunately, the house was later found to have structural problems.

The buyers' case was that their solicitors had been negligent in not advising them that building regulations approval had not been obtained - something that would have made them reconsider their purchase.

At the time, the judgment was greeted with consternation.

Dire consequences were predicted.

Four years on, how has the world of residential conveyancing changed?

Cottingham was unusual as it involved a claim that might normally have been made against the buyers' surveyor.

There was a survey but the ability of the surveyor (and also the seller) to satisfy a damages claim was in doubt.

So the buyers sued their own solicitors.

The immediate effect of the judgment - one that has persisted ever since - was to increase delay in ordinary conveyancing transactions.

The problem with the decision in Cottingham is that it was hardly consistent with cheap and speedy house buying.

The ruling meant that a purchaser's conveyancer was unable to shield himself from litigation simply by satisfying himself that the client has had an appropriate survey.

Indeed, to be absolutely safe he points out that the conveyancer might have to engage in extensive correspondence with a view to checking precisely what works were done and whether these matched up with the documentation.

Moving house is a stressful experience.

Buyers and sellers are frequently subject to tight deadlines.

In theory, investigating whether building regulations approval has been obtained is straightforward.

In practice, time is often not available given that a delay might easily lead to the collapse of a chain.

The result is misery and despair for the public.

One solution is to use indemnity insurance.

Now seen as a relatively cheap and quick answer to Cottingham-inspired delays, it has been adopted across the profession with enthusiasm.

Industry specialists say that before 2000, although such policies were available, there were few, if any, requests for cover.

Now they are commonplace.

Even so, insurance has important limitations.

Cover is usually restricted to losses arising from enforcement proceedings by the local authority.

In Cottingham the buyer's claim related to the cost of rectification of the defective works.

No enforcement action was ever brought.

Paradoxically, most insurance policies would be of no help to a buyer in a Cottingham-type situation.

For some, such as Trevor Haynes, the head of Birmingham City Council's building control department, greater interest in building regulations has a positive aspect as it increases public awareness of a fundamental part of the construction process.

Others see the changes that took place after Cottingham as making it easier for them to protect the public.

'The insistence of solicitors in obtaining copies of approval notices and completion certificates for work has now become an additional means of enforcement for us - and it is also a very effective one,' comments one building-control manager.

But Cottingham has had a downside for building-control departments as well.

Desperate members of the public regularly turn up in person to try to save sales threatened by missing documents.

For even small district councils, this is a weekly event imposing considerable stress on staff.

Surprisingly, misconceptions about the reality of building control enforcement remain widespread.

Enforcement via the courts is actually rare.

Birmingham building control unit, the largest in the country, only had to resort to court action in five cases in 2003.

With smaller councils, it is normal for there to be no enforcement proceedings at all in an average year.

Misapprehensions about enforcement proceedings may also have played a part in the outcome of Cottingham.

No expert evidence on conveyancing practice was available at the trial.

The defence relied up the Law Society's Conveyancing Handbook, which made clear that only where work had been done in the preceding 12 months should the purchaser's solicitor enquire whether building regulations consent was obtained and complied with.

However, the judge focused on the fact that while enforcement under section 36(1) or (2) of the Building Act was limited to 12 months, enforcement by injunction proceedings under section 36(6) was not subject to the same restriction.

He decided that the defendants should have warned the buyers that they faced at least some risk of injunction proceedings.

According to Mr Haynes, injunction proceedings under section 36(6) are exceptionally rare, and are usually reserved for situations involving a serious threat to life and safety.

The heads of building control in 20 local authorities were interviewed for this article and asked whether they had brought section 36(6) proceedings in recent years.

None had for domestic property.

Since 1993, there have also been other changes involving the practical side to enforcement.

The enforcement concordat, signed in 1998 has been adopted by almost all local government organisations with an enforcement function.

This requires building control departments when carrying out enforcement to take a consistent approach and treat matters with proportionality, effectively making it unthinkable that injunction proceedings would now be utilised in relation to a minor item of domestic building work that took place years before.

These changes mean that it is possible that Cottingham might not be followed today.

The case laid bare the tension between the desire of the public (and the government) for swift and consumer-friendly conveyancing and the readiness of the judiciary to impose liability for negligence in ever more unlikely circumstances.

The unfortunate result has been to make the conveyancing experience even more difficult for the public

However, the end of Cottingham-inspired problems may be in sight.

It is envisaged that the much-maligned home information packs will have to include building regulations notices and certificates - although no final decision has yet been made.

For all the criticisms of the packs, this is one area where they would undoubtedly solve a major problem.

Raymond Perry is a partner at Gloucester-based law firm Davies and Partners