Phillip O'Sullivan: Warranty plan best solution

A major justification for changing the Building Act was to ensure better protection for homeowners. But are owners of new homes better off?

In many ways yes, but there is still some way to go.

Leaky buildings burst into public consciousness in 2002 with the Hunn Report. Don Hunn and his team publicly acknowledged the serious nature and extent of the problem. Their recommendations were wide-ranging but were only a start.

The Building Industry Authority at the time should have been able to move forward, but initially was defensive.

George Hawkins, then the minister, tried to lay the blame on builders.

The public came to realise it wasn't just shoddy building work - cladding systems that retained water from small leaks, and untreated timber, meant even good builders were caught out.

Before Hunn, in May 2000, a Claddings Institute forum acknowledged that the leaky building problem did exist, but more importantly sought to understand its causes. These were found to be inadequate science, poor accountability and responsibility, and a lack of education.

Since then, our knowledge of weathertightness has greatly improved.

The development of the Licensed Building Practitioner regime by the Department of Building and Housing should bring a degree of responsibility into people's behaviour. In turn, this should create a demand for education.

However, there is a problem. The law of tort deals with negligent acts and omissions. Such acts usually arise from an individual's actions - or inactions. In turn, the company employing that person is vicariously liable.

It is difficult to identify who did what, whereas a company's involvement is much easier to prove.

Under the licensed practitioner scheme, those on the site who will be responsible for co-ordinating and managing projects become easy targets. Who would want to take on such personal risk?

The answer is that building companies need to be licensed as part of a building warranty scheme. Should a company cease trading, the warranty provider would take care of the homeowner, protecting the former employees from legal action, but not from losing their licensed practitioner status.

One of the best examples of a successful warranty scheme is the National House Building Council in Britain.

This is the scheme on which our master builder's guarantee was based - but there the similarity stops.

The National House Building Council has been properly established and resourced to manage construction risks.

The many benefits can be seen on their website www.nhbc.co.uk.

An alternative approach would be insurance of builders. This didn't work with building certifiers. At best it would mean protracted legal claims and marginal benefit to homeowners.

Another problem with the Building Act is product certification, the process that approves products and systems used in buildings. Its predecessor, the BIA accreditation scheme, has not been successful and has stalled.

So we are left with Building Research Association appraisals as the only real means a council or designer has of checking a product's fitness for its purpose.

But what happens when things go wrong?

In the case of untreated timber and leaky cladding, these appraisals were withdrawn only after the relevant faulty standards were amended.

Compare this with a warranty provider. They would want to know when things were going wrong, establish why and take immediate action to cut extra costs.

I always like to give any proposed change the leaky-building acid test. Would a properly established warranty scheme have helped or hindered? Had that been the case, we would have had action back in 1999.

Think of the money that could have been saved and the anguish of so many homeowners avoided.

* Philip O'Sullivan, a director of Prendos Ltd, is on the Department of Building and Housing building envelope advisory group and is president of the Claddings Institute.