Building disappointment: the limits and potential of tort liability for energy efficiency problems in domestic buildings

This interdisciplinary thesis examines the potential for liability in tort in relation to two problems, which recur frequently in energy efficient buildings: energy efficiency failings – the 'performance gap' – and summer overheating. It works at the interface between tort theory, climate change litigation and energy efficiency, a key requirement for the mitigation of climate change. It is grounded in two key theoretical perspectives. The conception of private law is pluralist: a structural model of tort based on Cane’s ‘anatomy’: variably protected interests of parties in a correlative relationship. It relies on instrumental approaches to private law, informed by regulatory theory, strongly to emphasise the potential for liability outcomes to frustrate an already weak and poorly enforced policy area. The second theoretical perspective is a conception of climate change as a multiscalar phenomenon, a workable solution to which will require coherent treatment on all levels and across all scales. It highlights the need for 'climate consciousness': greater attention on small and more mundane issues that interface with aspects of domestic climate policy. The first half of the thesis explores the research context and encompasses most of the interdisciplinary work. It explains how building energy efficiency might technically be achieved and how problems arise. It explores the governing regulation, including the shortcomings of regulatory enforcement. The second half of the thesis examines doctrinal and theoretical mismatches that could arise in adjudicating the problem areas. The core conclusions include concerns that disputes in this poorly regulated area might undermine decarbonisation and hence, climate change mitigation policy; in addition, 'climate blind' litigation can lead to perverse outcomes which reinforce a lack of awareness of both climate adaptation and mitigation policy goals.