Action by house-owners against building contractors and local authority arising out of severe structural defects due mainly to settlement–Extensive cracking and movement of floor slabs away from skirting–As building contractors had gone into liquidation the claim for damages on the ground of negligence was pursued against local authority — Authority alleged to be negligent in the consideration and passing of plans and in failure of proper inspection to ensure compliance with building by-laws–Parallel action (not the subject of this report) by present plaintiffs and other owners against insurance company claiming that damage fell within scope of owners’ policies–Claim against local authority based on negligence held to be established–Anns v Merton London Borough Council–Authority’s inspector negligent in failing to see that a soil survey was carried out, in not carrying out an inspection of the underfill on which the ground-floor slabs were laid, and in failing to see evidence that the subsoil was unsuitable as a load-bearing medium–underpinning of main foundations necessary as it was not clear that settlement had ceased–Ground-floor slabs had to be suspended so as to be supported by the strip foundations–Owners entitled to damages including a sum in respect of the diminution of the value of the property as a result of the bad reputation which it had acquired–Issues as to quantum of damages referred to an Official Referee–Judge’s evaluation of evidence should be of special interest to building surveyors
The plaintiffs
in these proceedings were Mr and Mrs Lyons, leasehold owners of a maisonette,
70 Roseholme, Maidstone, but the case was a test case of interest also to other
long leaseholders in the same building. The maisonettes were built in about
1963 and the leases were for 999 years. The first defendants, F W Booth
(Contractors) Ltd, had gone into liquidation and the claim against them was not
pursued. This report is concerned with the claim against the second defendants,
Maidstone Borough Council. The plaintiffs had bought the leasehold interest in
no 70 in 1972 and began to see cracks appearing in 1973.
M Myers QC and
C Aldous (instructed by Gulland & Gulland, of Maidstone) appeared on behalf
of the plaintiffs; J A T Loyd QC and C A W Gibson (instructed by Badhams)
represented the defendants.
Giving
judgment, DRAKE J said: This action, brought by Mr and Mrs Lyons against the
Maidstone Borough Council, and the associated action brought by Mr and Mrs
Lyons and a number of neighbouring house-owners against the Legal & General
Assurance Co Ltd is concerned with a block of eight maisonettes which were
built in Maidstone in about 1963. Mr and Mrs Lyons and the other plaintiffs
hold their respective properties on 999-year leases. For the purpose of these
actions I shall refer to them simply as owners.
In the early
days no one noticed anything wrong with the building; but at some time in or
about 1973 and thereafter serious things were seen to be happening. Numerous
cracks appeared both outside and inside a number of the maisonettes, some of
them small but some of them quite large. The concrete floors in a number of the
downstairs rooms sunk so that in some cases they parted from the skirting
boards at the bottom of the internal wall. At one end of the block the outside
concrete steps to a doorway sunk, so did a nearby concrete path; and some
retaining walls, one at the rear of the block next to the forecourt to the
garages, and two others in front of the building, developed severe cracks and
were apparently being pushed over by the ground they were intended to retain.
The total cost which will be involved in making good the entire block might
possibly, on one estimate, be in the order of £100,000.
These major
defects became obvious for all to see, and they were and are so serious that
building societies were not prepared to grant mortgages on the maisonettes, so
that the owners found themselves virtually unable to sell their properties. Mr
and Mrs Lyons who had bought the leasehold interest in their maisonette in 1972
tried to sell it when Mrs Lyons was about to have her first child in 1973; but
they could not find any buyer who would complete a purchase — so they are still
there, now with two growing boys, in 1981.
It is obvious,
from what I have said, that something went gravely wrong with the construction
of this building. But to make matters worse for the owners, the building
company who built the houses and who are the first defendants in the first
action have gone into liquidation. Furthermore, the insurers, with whom the
houseowners all insured their property, have denied that the damage falls
within the scope of the policies.
Faced with
this situation the owners have brought the two actions now before me. In the
first action Mr and Mrs Lyons claimed damages for negligence in the building of
their property by the builders; but, as I have said, the building company have
gone into liquidation, so the claim against them was not pursued. They also
claim damages against the Maidstone Borough Council as the local authority,
alleging negligence in the consideration and passing of the plans for the
building and also in failing to inspect the site and building so as to ensure
that the building complied with the local by-laws.
Although Mr
and Mrs Lyons of 70 Roseholme, Maidstone, are the sole plaintiffs in this
action I have been told that it is brought as a test case in respect of the
owners of five other properties, namely nos 58, 60, 62, 64 and 66. A seventh
owner (of no 56) wishes to claim but has not yet done so: the eighth property
(no 68) has for some years been empty and no claim is made in respect of it.
In the second
action the six owners sue the insurance company, seeking a declaration that the
damage to the buildings falls within the scope of their respective insurance
policies which, so far as is relevant to the claims, are in identical terms.
The defendants in each action deny liability.
The evidence
in the two actions was, by consent, heard during one hearing. It has also been
agreed that having heard full argument in the first action I should first give
judgment in that action, which I am now doing, so as to deal with all matters
other than the quantum of damages relating to the cost of remedying the defects
in the building and expenses which will be incurred by the occupiers moving to
alternative accommodation while the remedial works are carried out. The parties
involved in the second action concerning the insurance policies will then have
a short time (until tomorrow morning) to consider the judgment, which will be
accepted as dealing with all factual disputes. Argument will then be heard and
I shall in due course give judgment in that action.
Description
of the building
This is best
given by reference to the numerous plans and the agreed experts’ report used in
evidence, so I need not lengthen the judgment by referring to it in detail.
It comprises
eight maisonettes within a two-storey building, four maisonettes being on the
ground floor with the other four above them but having a staircase down to a
small entrance hall and door at ground level. The building, referred to on some
of the original plans as ‘Block E’ — which is a description I shall continue to
use — is in three parts joined together, being stepped in two places so as to
allow for the slope averaging 6 degrees from north to south on which it was
built. In the section on the highest part of the slope are two maisonettes (no
56 on the ground floor and no 58 above): in the middle section are nos 60 and
64 (on the ground) and 62 and 66 (above) and in the lowest section at the
southern end is no 68 (empty for some years on the ground-floor level) and no
70, the home of Mr and Mrs Lyons above.
Block E formed
part of one substantial estate development by the same builders comprising a
number of detached and semi-detached houses, maisonettes and flats all
surrounding a new road called Roseholme. The whole site is on ground sloping
from north to south down towards the River Medway; and in days gone by part of
the site, including the area on which Block E has been built, was in use as
watercress beds, as appears from the 1908 Ordnance Survey map. This was no
doubt because of the presence of spring water which, at least on some
occasions, probably emerges from the sloping ground on or just below part of
the site.
Block E itself
is a brick-built structure on strip concrete foundations. As can be seen from
the photographs, two types of facing brick were used, namely calcium silicate
bricks on the two end sections and clay bricks on the longer middle section,
which is partly weather-boarded in the front but wholly faced with clay bricks
at the rear.
The calcium
silicate brickwork on each of the end sectors is keyed into the clay brickwork
in the middle section, so that although the building is stepped to allow for
the slope it is one unit and not three separate units. Stresses developing in
any section are therefore capable of being transmitted to another section.
The floors of
the maisonettes are constructed of four-inch thick concrete slabs. At the
first-floor level the weight of the slabs bears on those walls which themselves
are founded on the concrete strip foundations to the building. But at
ground-floor level the concrete floor slabs do not bear on the strip
foundations; they are independent of the main walls of the building and bear
down directly on 4 in of hardcore resting on some fill material which in turn
bears on the ground underneath. The fill underneath the ground-floor slabs has
undoubtedly been one of the causes of damage to these properties. It is up to 2
m in thickness, but instead of having been compacted before the floor slabs
were laid, it was loose. With fill of this thickness it was essential to have a
granular or similar material of even size so that it could satisfactorily be
compacted; but in fact the fill was found on inspection to be loose, comprising
a clayey silt containing numerous fragments of stone of varying thickness and
in one place even an old metal bath. Such fill could not easily be compacted
and what happened was that it settled, ie compacted gradually over the 17 years
or so which have elapsed since the floor slabs were laid. This led to a void
ranging between 20 and 140 mm (ie nearly 1 in up to nearly 5 in) below the
concrete slabs, which, being unsupported, have fallen and moved, so that in
some places they have come away from the skirting board. The concrete floor
slabs on the ground floor are themselves the foundation for one internal
partition wall in each ground-floor maisonette, and the movement of the floor
slabs has consequently caused movement of and damage to these internal walls.
Damage has
also occurred to three retaining walls which were built at about the time the maisonettes
were built, probably immediately after the main parts of the block were
finished but before the building was regarded as ready to be lived in. Two of
these retaining walls are in front of the main building, each running out from
the place where the sections of the block are stepped, ie at the point where
the calcium silicate brickwork is keyed into the clay brick of the centre
section. These walls serve to retain the soil in the small front gardens to the
property to prevent it falling down the slope.
The other
retaining wall, clearly shown on plate 4 of the agreed bundle of photographs,
is at the top end of Block E and was designed to retain the fill laid to the
north of the block so as to provide the support for a large garage forecourt
and a number of garages. This wall, which runs along the length of the north
gable end of Block E, is about 2 m high and was built so as to be 4 1/2 in from
the gable wall to the block.
Each of these
three retaining walls has been damaged by the pressure of the ground or
material it was designed to retain. The wall retaining the garage forecourt has
been forced over so that its top is now in contact with the gable wall of Block
E (maisonette 56). The front walls are badly cracked and unless put right will
probably fall. In the case of the wall next to nos 60 and 62 the effect will be
to block the entrance to these maisonettes.
The damage
When Mr and
Mrs Lyons jointly bought 70 Roseholme in 1972 they did not have a private
survey carried out, but Mr Lyons saw no signs of anything wrong with no 70 or
anywhere else in the block. They obtained a mortgage from the Woolwich
Equitable Building Society, and paid for the society to have a survey. Mr Lyons
was not shown the result, but it must have been reasonably satisfactory because
a mortgage was granted.
In 1973 he saw
cracks starting to appear in his own home and then elsewhere in the block, and
they got bigger and more numerous. Mr Lyons repointed cracks under windows of
the main room in front and the kitchen at the back, and part of his work can be
seen in one or more of the many photographs, eg plate 10 of the main bundle.
But more cracks appeared; and the concrete floor slab to his entrance hall
moved and came away from the skirting leaving a gap of between 3 and 4 mm and
it also came away from the stairs and left a gap of similar size, and at least
three of the floor tiles cracked. Mr and Mrs Lyons wanted to move but it became
impossible to sell the property. The defects in Block E had become well known
to local estate agents, and building societies would not grant any mortgage
upon any of the maisonettes.
I need not
catalogue the extent of the defects to Mr Lyons’ property or elsewhere in Block
E because they are set out in detail in the various reports and shown on the
numerous photographs and plans.
Two experts
gave evidence and submitted various reports, namely Dr A G Weeks for the
plaintiffs and Mr L Langford for the Maidstone Borough Council. They also
compiled an agreed report to which the Legal & General Assurance Society’s
expert, Mr A P Blackham, was a party, although he did not give evidence in the
trial.
The experts
agree
(i) that some settlement has
occurred to the strip foundations due to consolidation of the underlying
materials;
(ii) that the depth of fill
beneath the ground-floor slabs is excessive and has settled and no longer
provides support to these slabs and to the internal partitions which are
founded upon it; and
(iii) that the retaining walls
are badly damaged.
Mr Langford
and Dr Weeks also agree that some of the external cracking to the calcium
silicate bricks is due to shrinkage of those bricks caused by moisture and
temperature changes. Mr Langford thinks that much of the cracking in the clay
bricks in the centre section is due to temperature changes and to stress
transmitted from the shrinkage of the calcium bricks. He agrees that some
damage in the clay bricks is due to settlement, as also is some damage in the
calcium silicate bricks in the extreme south-west corner of the block, ie at
nos 68 and 70, but his conclusion is that cracking throughout Block E is
predominantly due to shrinkage and thermal movement. Dr Weeks thinks that the
calcium silicate cracking is of comparatively minor importance and in his view
the predominant cause of cracking to both types of brick is the settlement of
the strip foundations. This is one of the major issues which I have to resolve.
These experts
are also in disagreement as to the remedy required to deal with the settlement
damage which has occurred. Mr Langford believes that the settlement is now
virtually complete, so that the damage can be remedied simply by repairing the
cracks and other damage which has occurred. Dr Weeks believes that the
settlement is as yet only about 75% complete and that it is essential to
underpin the strip foundations in order to avoid future damage by the remaining
25% settlement still to occur.
There is
agreement that the ground-floor concrete slabs will have to be removed in order
to remedy the existing and probable future damage; but there is disagreement as
to the remedial measures required. Dr Weeks (supported, according to the agreed
report, by Mr Blackham) thinks that the floor slabs should be suspended, ie
spanned on to the external walls and supported by the newly underpinned strip
foundations.
Mr Langford is
in favour of a new entirely independent floor slab resting on newly prepared
underfill.
If the
ground-floor slabs are to be supported by the strip foundations, he agrees that
the increased pressure upon those foundations will mean that they must be
underpinned. But as he does not regard underpinning as necessary to avoid
future settlement damage to the external walls he thinks that the high cost of
underpinning should not be incurred merely to deal with the floor slabs. His proposed
remedy for the floor slabs is first to deal with the existing faulty underfill.
This should either be removed and replaced with a new material which can be
satisfactorily compacted, or treated with a chemical injection which will bind
together the existing fill. A lightweight structure should then be built above
the fill to support new timber flooring.
The experts
agree on the damage which has occurred to the retaining walls due to pressure
of the retained materials and they also agree that the remedy required is to
rebuild these walls.
Involvement
of Maidstone Borough Council
I next turn to
consider the involvement of the borough council, who are and were in 1963 the
authority responsible for granting planning approval under the Town and Country
Planning Acts and also for making and ensuring compliance with building by-laws
under the provision of the Public Health Act 1936. The nature and scope of the
duties of the council under that Act were clearly indicated by the House of
Lords in Anns v Merton London Borough Council [1978] AC 728 to
which I must make further reference later.
In 1963 the
council considered plans in respect of Block E. By that time they had certainly
approved plans and inspected various stages of building work in respect of
numerous other properties forming part of the fairly large estate development
by the same contractors, F W Booth (Contractors) Ltd. Records exist and have
been produced of the plans and inspection reports made in respect of some of
the other properties. Unfortunately a large number of the council’s records
were lost or destroyed, possibly as a result of flooding of the borough
engineer’s office in 1968, so that some of the records, in particular the
inspection reports relating to Block E, have not been produced. However, some
of the approved plans have been produced and, as a result of the evidence, the
council properly and realistically on the balance of probabilities have
conceded some of the matters which were in issue as to the inspections carried
out by one of their building inspectors. The history, as revealed or conceded
as being probably true, is as follows:
(1) Plans for the maisonettes were drawn up by
some unqualified person on behalf of the contractors and sent to the council in
June 1963. I need refer only to three of those plans. One, no 15/37 dated
February 1963, shows ‘Typical Elevations’ and a section drawing shows ‘Concrete
Foundations — (Depth to suit site conditions)’. Plan no 15/38A of the same date
has notes, including
6.
Foundations. To approval according to site conditions.
17. Layout.
Plans repeated to form terrace, stepped to suit site conditions.
Another plan,
no 15/40A dated May 1963, is entitled ‘Plans, Elevations and Section’ and also
shows in section a foundation marked ‘Depth varies according to site
conditions’. Notes include note A, ‘Foundations — To approval according to site
conditions’. Each of these plans is stamped by the council as having been
‘Approved 26 June 1963’.
(2) Plan no 15/56 dated September 2 1963 is of ‘Details
of Maisonettes’ and on the drawing ‘Typical Section’ it shows concrete
foundations 9 in thick and 2 ft (or in the case of foundations to an internal
wall 1 ft 6 in) wide. The depth is not marked, but scaling the plan shows the
depth to be 2 ft 6 in. This plan is marked by the council ‘Approved 17
September 1963’; and the original, produced by the council, has written on it
‘detailed plan of maisonettes agreed, office copy’.
(3) The council in 1963 had an establishment for
four building inspectors whose duties included that of ensuring compliance with
the council’s building by-laws. The council operated a system of inspections at
eight stages of the development of which stage 1 was of the undeveloped site
before any building work, stage 2 was inspection of the foundation trenches
before any foundations were laid, stage 3 was of the foundation concrete before
any brickwork, and stage 4 was of brickwork up to damp-proof course level with
the foundations covered in and with concrete over the ground surface within the
external walls. I am not concerned with the subsequent stages.
Reports have
been produced of a number of inspections of buildings (detached and
semi-detached houses and a flat) during 1963 — but none exist for any of the
maisonettes in Block E. The reports produced show a virtually complete series
of inspections at the eight stages. The council have realistically conceded the
probability that inspections were carried out on the maisonettes in Block E.
As a matter of
practice the building inspector would have had with him, at the time of his
inspections, copies of the relevant approved plans.
It is a matter
for the discretion of the council as to the manner in which they will carry out
their duties to ensure compliance with the building by-laws. But as the plans
marked ‘Approved in June 1963’ showed ‘Foundations — To approval according to
site conditions’, it is conceded by the council that in this case they were
under a duty to inspect the site, which they did.
One of the
major issues in this case which I have to decide is what the building inspector
saw or ought to have seen on his inspection. The plaintiffs say that the
inspections were carried out negligently with the result that the building
by-laws were not complied with because the foundations required and constructed
were not such as to ensure the stability of the building. The council deny
this.
The inspection
was probably carried out by the then senior building inspector, a Mr Mitchell.
He remained with the council until April 1981, when he became mentally unwell
and ceased to work, and was retired in September 1981. During the course of
preparation of this action it was Mr Mitchell who provided all the available
information to the council and its insurers’ solicitors. However, nothing has
been made available to indicate what he knew about the inspections beyond the
answers to interrogatories sworn by Mr Osborne, now the assistant planning
officer employed by the
I therefore have
to decide this major issue as to what the building inspector saw or ought to
have seen on the basis of evidence given as to the sort of experience and
qualifications held by building inspectors; what Mr Osborne told me of the way
in which such inspections are made; and on the evidence of the two experts, Dr
Weeks and Mr Langford. But before I deal with this I must first refer to the
scope and nature of the duty owed by the council to the plaintiffs, and to the
relevant by-laws.
Duty of
the council
The plaintiffs
allege that the council were negligent at two stages, ie:
(i) in approving the plans and
(ii) on the inspections of the site and works.
There is no
issue between the parties as to the nature and scope of the duty of the council
under either of these heads.
As regards the
duty on inspection under the by-laws I have already referred to Anns v Merton
London Borough Council which deals fully with this matter. That case was
not concerned with any duty when considering and giving approval to plans under
the provisions of the Town and Country Planning Acts, but Mr Loyd, for the
council, concedes that in principle the duty should be the same as that arising
on an inspection to ensure compliance with by-laws. I fully agree and hold that
the nature and scope of the duty is indeed similar.
In the present
case this is probably only of academic importance. Although the plans
considered in June 1963 were marked ‘Approved’, this was in fact only qualified
approval, because the plans themselves stated that the foundations were subject
to further approval according to site conditions; and the council concede that
this meant that a site inspection was required. By September 1963, when the
detailed plan (no 15/57) was marked ‘Approved’, it seems probable that the necessary
inspection had been carried out. If it was done negligently then the subsequent
approval of the plan was done on the basis of a negligent inspection. If the
inspection was carried out without negligence then I do not think the council
could be held negligent in approving the plans on the basis of an inspection
carried out properly. In either event I think the duty of the council towards
the plaintiffs was the same.
I need refer
only to two passages in the speech of Lord Wilberforce in Anns v Merton
London Borough Council. At p 755D he said:
Passing then
to the duty as regards inspection, if made. On principle there must surely be a
duty to exercise reasonable care. The standard of care must be related to the
duty to be performed — namely to ensure compliance with the by-laws. It must be
related to the fact that the person responsible for construction in accordance
with the by-laws is the builder, and that the inspector’s function is
supervisory. It must be related to the fact that once the inspector has passed
the foundations they will be covered up, with no subsequent opportunity for
inspection. But this duty, heavily operational though it may be, is still a
duty arising under the statute. There may be a discretionary element in its
exercise — discretionary as to the time and manner of inspection, and the
techniques to be used. A plaintiff complaining of negligence must prove, the
burden being on him, that action taken was not within the limits of a
discretion bona fide exercised, before he can begin to rely upon a common law
duty of care. But if he can do this, he should, in principle, be able to sue.
and at p 758F
he said:
The nature
of the duty. This must be related closely to the
purpose for which powers of inspection are granted, namely, to secure compliance
with the by-laws. The duty is to take reasonable care, no more, no less, to
secure that the builder does not cover in foundations which do not comply with
by-law requirements. The allegations in the statements of claim, in so far as
they are based upon non-compliance with the plans, are misconceived.
I turn to the
relevant by-laws of the Maidstone Borough Council, which are as follows:
Under Part III
— Buildings
Foundations
18(1) The foundations of every building shall be:–
(a) so designed and constructed as to sustain the combined dead load of the
building and imposed vertical and lateral loads and to transmit these loads to
the ground in such a manner that the pressure on the ground shall not cause
such settlement as may impair the stability of the building, or of adjoining
works or structures.
I need not
refer to 18(1)(b) or (c).
19(1) The foundations for the load-bearing
structure of a domestic building where constructed as strip foundations of
plain concrete situated centrally under the walls or piers, shall be deemed to
satisfy the requirements of subparagraph (a) of the last preceding by-law if —
(a) there is no wide variation in the type of
subsoil over the loaded area, and no weaker type of soil exists below that on
which the foundations rest within such a depth as may impair the stability of
the structure.
By-law
19(1)(b) is concerned with the width of the foundation which is required to be
not less than that specified in a subjoined table. This table was referred to
in evidence because the council say that the building inspector was not shown
to have been negligent in seeing that by-law 19(1)(b) was complied with, which
involved him making an accurate assessment of the type of subsoil.
Although some
of the other by-laws, including by-law 21, were referred to in argument I do
not find it necessary to set them out in this judgment.
There is,
however, a dispute as to whether or not the retaining walls are ‘buildings’
within the meaning of that word as used in by-laws 18 and 19. I refer to by-law
1, which is the ‘interpretation’ by-law, only to say that ‘building’ is not
among the words or phrases there defined. By-law 2(2), so far as I need refer
to it, is as follows:
2(2) For the purpose of these by-laws any of the
following operations shall be deemed to be the erection of a building:
and at (c) is:
the roofing
over of any open space between walls or buildings.
The issues
I am now in
the position to formulate the issues which I have to decide, which are as
follows:
(1) As to the main foundations was the building
inspector negligent when he inspected the site and/or building works? In particular should he have called for a
soil survey, and if he had done so would that have resulted in foundations
deeper than those in fact laid?
(2) Are the ground-floor slabs ‘foundations’
within the meaning of the by-laws? If so
then:
(3) Was the building inspector negligent in
failing to ensure that these slabs were dealt with differently from the way they
were in fact dealt with, ie should he have required either:
(a) that they were supported by the ‘main’
foundations to the external walls, or
(b) that the underfill to these slabs was
properly compacted?
(4) Are the retaining walls ‘buildings’ within the
meaning of these by-laws?
(5) How much of the damage to Block E is due to
the settlement, and how much due to shrinkage and/or thermal movements of the
bricks?
(6) Is it now necessary as a remedial measure to
underpin the main foundations?
(7) What is the proper remedy in order to deal
with the ground-floor slabs?
(8) If the council are liable what sum should be
awarded to the plaintiffs for:
(a) diminution in value of the property as a
result of the bad reputation it has acquired (a head of damage similar to that
considered in Payton v Brooks [1974] RTR 169);
(b) diminution in the value of the property to
the plaintiffs during the time they have lived in it and been affected by the
damage. This includes the inconvenience caused by the defective state of the
maisonettes and by having people come to inspect them and dig boreholes and
trial pits nearby and the general worry and distress they have suffered?
It is agreed
that at this stage I am not in a position to quantify any damages which might
be recoverable under two other important heads, namely, first, for remedying
the defects in the building and, secondly, for expenses which will be incurred
in moving to alternative accommodation while the remedial works are done.
So I turn to
deal with these issues.
Was the
building inspector negligent with regard to the main foundations?
The plaintiffs
say he was negligent in failing to call for a soil survey. Dr Weeks gave
detailed evidence as to the geology of the site. He is a very experienced and
very highly qualified and skilled civil and geotechnical engineer who for many
years has specialised in geotechnics. His evidence as to the geology of the
site is not disputed. I need not deal with it at length. It is mainly contained
in his reports and in the agreed report, although he explained and enlarged on
these in his evidence with the help of drawings on a blackboard.
known as the Hythe Beds, but in some parts, including the area of Block E, the
Hythe Beds join up with another underlying subsoil known as Atherfield Clay. At
this junction spring water emerges — but there is an issue between Dr Weeks and
Mr Langford as to how easily this would have been noticeable to the building
inspector in 1963.
The Hythe Beds
and Atherfield Clay are found at varying depths up to about 6 m or less below
the present ground level, and are covered with a layer about 2 to 3 m thick of
material deposited in the last Ice Age known as ‘head’. Above the head is a soft
sandy and clayey material called ‘colluvium’ varying between about 1 and 2 m in
thickness, and over this is a thin layer of the original topsoil, which
includes decaying roots and other vegetable matter, and from there up to the
existing surface the original ground has been covered by a fill — much of which
was probably taken from the excavations for foundations and so on elsewhere on
the estate.
The
‘colluvium’, being a soft material, will consolidate, ie compact from the
weight of any building if the foundations bear on it; and this is what has
caused the settlement in Block E.
Two boreholes,
dug in April 1980, clearly reveal the structure of the ground at each end of
Block E; and those and a number of trial pits dug in June 1980 show that the
strip foundations were constructed in, and generally in the upper part of, the
colluvium, and in one case (trial pit 80/3) in the topsoil over the colluvium.
The results of these excavations are all contained in the agreed report.
Over the years
the weight of the building transmitted through the foundations led to
compaction of the soil underneath. This compaction was not uniform, as the
compressibility of materials on the site increases as you go down the slope.
Accordingly the building sank more at the lower end than at the top end — in
the order of 4 in at the lower end compared with only 1 in at the top end. This
resulted in damage to the block.
There is no
doubt that any qualified engineer surveying this site and considering plans to
build Block E down the slope, ie at right angles to the contours, would at once
have appreciated the dangers involved and would have called for a soil survey.
Mr Langford agreed with Dr Weeks on this and agreed that, although not
possessing Dr Weeks’ geological expertise, he would certainly have carried out
a soil survey and on what he found would have called for pile foundations for
Block E.
But the issue
is whether a building inspector ought to have called for such a survey or at
least have seen sufficient to make him refer the matter to the borough engineer
who, it is agreed, would have carried out such a survey.
Building
inspectors are normally unqualified except by practical training and
experience. Mr Mitchell, who was senior building inspector in 1963, was a
former carpenter-joiner with another local authority, but had become a building
inspector, probably after some training, including short courses and practical
instruction.
Dr Weeks says
that with his local knowledge, with the availability of geological maps and old
Ordnance Survey maps showing that there had been watercress beds on the site,
with knowledge of certain codes of practice relating to foundations, but above
all having regard to the signs of damp and probably of standing or running water
a little way further down the slope, and because of the length of this terrace
block running across the contour lines, down the slope, any building inspector
ought to have asked for a soil investigation before approval was given to the
plans. At the very least, says Dr Weeks, the building inspector should have
recognised potential problems so as to refer the matter to the engineering
staff of the council.
Dr Weeks
further thinks that a competent building inspector should have recognised the
dangers of the site when inspecting the foundation trenches at stage 2 of the
inspections. At that stage he could and should have seen that the soil was
possibly unsuitable as a base for the foundation, and by carrying out a ‘heel
test’ (digging his heel into the soil) and using the yard-long metal probe he
would have had with him, he should have been put on notice that a soil survey
was required.
Mr Langford
disagrees. He thinks it unlikely and beyond the normal practice for such an
inspector to have consulted old maps or the geological survey or that he would
be familiar with the particular codes of practice referred to by Dr Weeks. He
says that no building inspector would know of a material called ‘colluvium’,
which even he, Mr Langford, had never heard of until Dr Weeks referred to it,
and that the colluvium which the building inspector saw would have been
reasonably classified by him as head material which, in dry weather, would have
seemed firm and suitable to take the foundations. He agrees that the spring water
would have meant that there were damp patches on the ground with lush growth of
vegetation coming from them, but thinks that there would have been no visible
standing or running water. The water now visible on the surface he thinks comes
mainly from the rainwater soakaways and surface water from Block E.
As to the
inspection of the open trenches Mr Langford does not think that the building
inspector should have been put on notice that there was anything wrong with the
ground as a base for the foundations, and does not think the heel test or probe
would have revealed anything of significance.
That is a
summary of the conflicting views of the experts.
In reaching my
decision on this issue I have been careful to bear in mind that Dr Weeks is so
highly skilled that he might expect too high a standard of less experienced
people; secondly, that the building inspector was not a qualified man, save by
practical training and experience; and thirdly, that the virgin site in 1963
may have looked very different from the photographs of the surrounding land in
1980-81 (in particular I have in mind the fact that rainwater coming from Block
E and its surrounds must surely have added to the dampness of the ground below
the block); and fourthly, the burden of proving negligence rests firmly on the
plaintiffs.
As to the
geological and old Ordnance Survey maps, I doubt whether the building inspector
consulted them nor do I think him negligent not to have done so. I am not
satisfied that he would or should have been familiar with the codes of practice
referred to by Dr Weeks — although he may have been, and he would certainly
have read and been familiar with some textbook and practical written guidance
about building work including foundations.
But I have
reached the clear and firm conclusion on all this evidence that the building
inspector did fall below the required standards in failing to see that a
soil survey was carried out — either by requesting one himself or by referring
the matter to the engineering staff, which, on the evidence, would have led to
the same result.
On the balance
of probabilities I think that signs of boggy, marshy or wet ground were
visible in 1963. The spring lines certainly result in water being present on or
near to the surface, and the former existence of the water-cress beds show that
probably the amount of fresh spring water emerging at this site was
considerable.
The
photographs show a lot of water present below the site in October 1981, and
figure 1 to the agreed experts’ report dated October 7 shows that water issues
from the bottom of the bank just below the site, leading to a ‘boggy area’. I
do not think, on the evidence, that this is entirely due to water drainage from
Block E and its surrounds.
When it was
put to Dr Weeks in cross-examination that a building inspector could not be
expected to have known Block E was to be built on or near the spring lines he
retorted that the inspector would have found himself up to his knees in soft
boggy material and that it needs no expert to know what that means.
As to the lack
of professional qualifications of an inspector, I bear that in mind. But the
essential qualifications required of an inspector are a sufficient practical
expertise to enable him to secure compliance with the by-laws; and I think that
such practical experience and training should have led this inspector, whoever
he was, at least to have recognised that this building and site demanded that
at very least he referred the matter to the engineering staff.
As to the
subsequent inspection of the open foundation trenches the same findings apply,
but with this addition. At that stage the inspector was able to see down some
way into the colluvium and I think it likely that evidence of dampness and/or
softness was available to him then; and that the use of the heel test and probe
would have been likely also to indicate the need for a soil survey. My
findings that the building inspector was negligent are reinforced by the fact
that at one point the foundations rest on the topsoil. Any
for the foundations. The fact that part of the foundations was built on the
topsoil is an indication that the inspections were not carried out with the
thoroughness required, ie to see that the byelaws were being complied with.
In deciding
this issue I have had to be influenced greatly by the opinions expressed by the
two experts as to what a building inspector would be likely to have seen in
1963 and what conclusion he ought to have drawn from the facts available to
him. In this as in other matters the two experts both gave their evidence
clearly and carefully. I preferred most of the views expressed by Dr Weeks,
who, on this point, was very much more emphatic and certain than Mr Langford in
the conclusion that he reached. I therefore decide this issue in favour of the
plaintiffs. It is common ground, arising from Mr Langford’s evidence, that had
a soil survey been made it is likely that deeper, piled, foundations would have
been required.
Are the ground-floor
slabs foundations within the meaning of the by-laws?
Having regard
to the evidence that they support an internal partition wall, Mr Lloyd conceded
this point. Mr Langford, his expert, agreed that the ground-floor slabs are
foundations. I was referred to a decision of Woolf J, in Worlock v SAWS
(unreported as yet*, judgment given on June 19 1981), in which he held that
such a floor slab which had been specially thickened in certain areas so as to
take the weight of internal walls is a foundation for the purpose of building
regulations similar to the by-laws with which I am concerned. Woolf J said (at
p 14 of the transcript with which I have been supplied)† :
I . . .
regard a foundation as an object which is placed in position on or in the
ground in the course of constructing a building . . . the function of which is
to provide support for the building so that it in fact transmits load to the
material beneath.
*Now reported
fully at (1981) 260 EG 920, [1981] 2 EGLR 10.
† 260 EG at p
927.
I agree with
this definition, extending it so as to read, ‘. . . the function of which is to
provide support for the building or any part of the building, so that it
in fact transmits load to the material beneath’. I see no need to limit the
application of the definition, where it applies, to a floor slab specially
thickened in certain areas.
Was the
building inspector negligent with regard to the ground-floor slabs?
It seems
unlikely that he carried out any inspection of the underfill on which these
floor slabs were laid, because stage 3 of the council’s system was carried out
before the fill under the slabs was fully in position and stage 4 was carried
out only after it had been covered. Since the fill was itself resting on an
unsuitable base (ie the colluvium) it follows from my findings with respect to
the main foundations that I think the building inspector was negligent with
regard to the floor slabs.
But in my view
he was negligent also in respect of the fill. In the decision of Woolf J, to
which I have just referred, he held that not only the floor slab but also the
hard core beneath it constituted a foundation; and Mr Myers for the plaintiffs
argued that the definition should therefore be extended to cover the fill in
the present case. I think this is right and that by-law 18 therefore requires
that the fill should be so designed and constructed as to support the building
and any part of it.
Furthermore,
the unusual depth of underfloor fill to be used here was easily seen by
reference to the plans and should have called for exceptional care by the
building inspector to see that it consisted of suitable and/or suitably treated
material. Since no inspection at all was carried out I am of the view that the
council must be held to have been negligent by omission.
It is true
that they have a discretion as to the manner in which they ensure that the
building by-laws are complied with (see Anns v Merton London Borough
Council). But I do not think that discretion was properly exercised by
operating a system which virtually precluded inspection of the underfill to
ground-floor slab foundations.
Alternatively,
I would hold that in carrying out his inspections to the building the building
inspector was negligent in the case of this particular building in not
appreciating that the underfloor fill required special attention from him or,
if he did appreciate that fact, in not doing anything to inspect the fill.
Are the
retaining walls ‘buildings’ within the meaning of the by-laws?
As a matter of
fact I do not think that any of these walls form part of the main building,
Block E. The two front walls are not keyed in to the main structure and were
almost certainly built after it was completed but before any occupants moved
in. The forecourt retaining wall was probably built at about the same time. Dr
Weeks thought it possible that it rests on the main foundations of the building
but this was no more than speculation, doubted by Mr Langford and I cannot
accept it as a proved fact.
The only
authority cited to me was the decision of Romer J in Wood v Cooper
[1894] 3 Ch 671, in which he held that a covenant by a lessee not, without the
consent of the lessor, to erect or build on the demised premises ‘any other
building whatsoever’ save for a stable and coach-house, was broken when he
erected a trellis-work screen of wood above his boundary fence. He held that
the trellis-work was an erection, and that had it been a wall the matter would
not even have been open to doubt. I do not think that decision is of much
assistance to me in the existing case, although it does somewhat favour the
view that a wall may, for some purposes, be called a building.
Mr Osborne,
for the Maidstone Borough Council, said that the council had never regarded any
retaining wall as part of a building and never inspected them or the
foundations to them. He referred to by-law 2(2), part of which I have already
read.
I note that on
none of the plans in respect of the premises is there any reference to any of
these retaining walls. This fits in with Mr Osborne’s evidence that the council
did not regard such walls as structures which required planning or by-law
approval, and indicates that the contractors, and whoever drew the plans and
dealt with the council, also did not think that planning or by-law approval was
required. But the opinion held by the council or contractors does not, of
course, assist me in reaching my decision as a matter of law. I think that
since in ordinary language a wall has to be built there is some ground for
calling what is built a ‘building’. Some dictionaries give such a definition,
eg the Shorter Oxford (1944 edition) has one definition ‘Building . . .
that which is built; a structure, edifice’. But I am cautious to accept this.
It is true that in normal language a wall is said to be ‘built’; but so is a
road and I certainly do not consider that a road is a building within the
by-laws.
Although I was
not referred to this or any other dictionary definition I have looked at a
number without, however, deriving much assistance. Jowitt’s Dictionary of
English Law (2nd ed, 1977) refers to a bewildering number of different
meanings which can be given to the word in different circumstances. From that
dictionary, and by reference to the case cited, I find that in Moir v Williams
[1892] 1 QB 264 at p 270 Lord Esher considered that what is ordinarily called a
building is an inclosure of brick or stonework covered in by a roof. In 1981 I
do not think that what is ordinarily called a building need be made only of
stone or brickwork, but subject to that it is the meaning which I think would
ordinarily be given to the word today. This is close to the ‘deemed to be the
erection of a building’ definition given in by-law 2(2).
Looking at the
matter largely as one of impression against the objects of these by-laws as a
whole I have come to the conclusion that a wall which does not form a part of
another building but stands independently is not a ‘building’ within the
scope of these by-laws.
In reaching
that decision I have not been influenced by Mr Osborne’s evidence that
it would be wholly impracticable to require local authorities to inspect every
garden or ornamental wall that is constructed. But I think his opinion on that
matter is correct, and I am therefore not sorry to have reached the conclusion
I have done.
On this issue,
therefore, I find in favour of the defendants.
How much
of the damage to Block E is due to settlement?
I have already
referred to the different opinions held by the two experts, Mr Langford and Dr
Weeks. On this issue I have had no
When he first
looked at Block E in July 1979 Mr Langford concluded that virtually all of the
crack damage was due to drying shrinkage of the calcium silicate bricks. In a
letter to the council’s insurers, dated January 31 1979 he expressed this view
and said that he saw no reason to suppose that the ground was unsuitable as a
load-bearing medium.
Mr Langford is
an experienced, skilled and careful engineering expert, but I think that on his
initial inspection of the plans and building on that occasion he jumped too
quickly to a faulty conclusion. Perhaps he was misled by some of the
information with which he was then supplied, including his conversations with
the occupants of nos 58 and 62. Although he concluded that the calcium silicate
bricks were the source of the main damage he did not visit any of the
neighbouring properties, some of which were built of those bricks, to see if
similar damage had occurred. Had he done so he would have seen nothing
comparable to the cracking in this building. Subsequent further inspection with
fuller information has led him to agree that some of the damage is due
to settlement. The extent of the damage is now known to be greater than that
known by him in January 1979. He remains of the view that shrinkage of calcium
silicate bricks is responsible for the major part of the crack damage,
including some of the damage to the clay bricks. He thinks that some of the
other damage to the clay bricks is due to thermal expansion and contraction.
In my judgment
the body of evidence points strongly the other way. This block has undoubtedly
settled quite considerably and on the balance of probabilities I think that the
major part of the damage is due to this. The absence of any evidence of similar
trouble with silicate bricks elsewhere on the estate and the accepted fact that
part of the damage to the silicate bricks at the lower end of the block is due
to settlement favour Dr Weeks’ views. So too, in my judgment, does the degree
and pattern of cracking in the clay bricks in the centre section. On this issue
I have no hesitation in preferring the views of Dr Weeks where they conflict
with those of Mr Langford, and I believe it likely that Mr Langford has,
probably without realising it, had his present views coloured by the hasty
conclusions he came to on his initial brief inspection of the building.
I should add
here that it was urged on me that because on that initial visit, Mr Langford,
an expert, saw no reason to conclude that the subsoil was in any way unsuitable
as a load-bearing medium, it would be wrong to hold that a much less qualified
building inspector was negligent when he inspected the site and trenches in
1963. I reject that argument, firstly because I think that Mr Langford jumped
to an admittedly false conclusion based on what he saw, being misled by looking
at the calcium silicate cracking, and secondly because the circumstances were
wholly different. The building inspector did not have the calcium silicate
cracking to mislead him; he had the virgin site, later the opened trenches, at
his disposal for inspection.
There is no
detailed evidence on which an accurate assessment can be made of the proportion
of damage due to settlement and that due to the calcium silicate shrinkage. Dr
Weeks believes that by far the larger proportion is due to settlement: Mr
Langford puts it the other way round. Having accepted Dr Weeks’ view, and doing
the best I can on the evidence, I hold that the calcium silicate shrinkage has
had only a small effect — none at all in the clay centre section and only a
small part in the end sections. The lower section (including nos 68 and 70) has
been badly affected by settlement. In relation to the highest section, ie the
other end from nos 68 to 70, I hold that 90% of the damage is due to
settlement. In the centre section I reject the evidence that thermal
contraction is of any significance and hold that 100% of the damage is due to
settlement, and in the lowest section, including Mr and Mrs Lyons’ maisonette,
where it is agreed that there has been severe settlement, I hold that 95% of
the damage is due to that cause.
Is
underpinning necessary?
I have no
hesitation in holding that it is.
Again this
issue must largely depend on deciding between the opinions given by the two
experts and I have preferred that of Dr Weeks.
The
differences of opinion largely turn on whether or not the settlement which has
undoubtedly occurred so as to affect the building is by now virtually complete.
Dr Weeks believes that there is still a substantial amount of settlement to
come, part of which will be due to rising and falling levels of the underlying
water table caused by the climate. Mr Langford believes that after 16 or 17
years the compaction of the ground under the strip foundations is now virtually
complete and that any water tending to collect in the ground at the lower level
of Block E will drain off through the colluvium. Mr Langford does agree that if
there is any further significant settlement to come underpinning is required.
He regards a further 15 mm of settlement as being sufficient to require this
remedy.
In his report
of July 1980 Dr Weeks had made some highly technical calculations to show the
amount of settlement which could be predicted from the facts now known about
the building, its foundations and the ground. After some cross-examination on
these calculations it was agreed that he should discuss the matter with Mr
Langford to see if their differences could be resolved. This resulted in a
measure of agreement set out in a short joint written report dated October 15.
Although Dr Weeks had somewhat modified his calculations it did not at all
affect his views that further significant settlement is likely to occur.
Mr Langford in
reaching his conclusion that settlement is virtually complete took into account
a ‘crack monitoring survey’ carried out by him over the period of 26 weeks
starting with March 12 1981. They showed no indications of further settlement.
His report (dated September 1981) concluded that the measurement period was too
short to give conclusive indications, but that the lack of settlement over the
period was some indication that settlement is complete. Dr Weeks
considered that the period was too short to be of any practical use.
I bear in mind
Mr Lyons’ evidence, which I accept, that although Block E was built in about
1963-64 the first signs of cracking did not occur until about 1973 when cracks
appeared internally and about 1974 externally. Since then they have got very
much worse. Figure 3 of the experts’ agreed report dated July 1980 shows only
one internal crack in Mr Lyons’ property; but he told me that there are now
three or four cracks under the first window and another crack under the second
window shown in that diagram. He also referred to Figure 5 and said that there
are now further cracks in the rear of his maisonette.
As I have
rejected Mr Langford’s opinion that the cracking is mainly due to calcium
silicate brick shrinkage, it follows that in my view this increased cracking
during 1980 is due to settlement. This goes some way to neutralise any
conclusions to be drawn from the crack monitoring survey.
But having on
this matter preferred the evidence of Dr Weeks I would, in any event, have
concluded that underpinning of the strip foundations is required.
However this
issue is very much related to the seventh issue:
What is
the proper remedy for dealing with the ground-floor slabs?
I have not the
slightest hesitation on this issue in holding that they must be suspended so as
to be supported by the strip foundations. And in that event Mr Langford
completely agreed that underpinning of the strip foundations will be required.
Mr Langford’s
proposed alternative for dealing with the floor slabs was, in my judgment,
wholly unacceptable. The alternative envisaged the possibility that the
existing fill might have to be dealt with. If so, Mr Langford proposed that it
should be removed and replaced with new fill. But when it was put to him in
cross-examination that the removal of the existing fill would set up severe
stress which would cause further serious damage he seemed uncertain and
suggested a possible alternative of binding the existing fill with some
cementatious or chemical material. But he was unable to refute the suggestion
that it would be necessary to use a chemical material which would involve as
much expense as underpinning the strip foundations.
I do not think
that Mr Langford’s alternative for dealing with the floor slabs is in
sufficiently definite form for me to find it as acceptable.
Furthermore
his alternative is based on his opinion that settlement of the building is
virtually complete — a view which I have rejected.
The necessary
remedies for dealing with the strip foundations and the floor slabs are
interlinked but in my judgment, whether these issues be considered separately
or together, the conclusion is the same — that underpinning is required.
Damages
I can deal
briefly with the two heads on which I am asked to quantify damages.
Firstly, as to
diminution in value of the property as a result of the bad reputation it has
acquired, the council concede in principle that this is a properly recoverable
head of damage, subject to proof that such bad reputation does exist.
I am satisfied
on the evidence of Mr Lyons that local estate agents and building societies are
well aware of the history of Block E, and I think that such a reputation is
bound to exist having regard to the history, nature and extent of the damage.
I have no
expert guidance as to the amount by which the selling price of the plaintiffs’
property will be lowered, nor have I been told of the existing market value of
the property in repaired condition — although I am aware from documents before
me of the price paid by Mr and Mrs Lyons in 1972.
I hold that
the plaintiffs are entitled to damages under this head, but I am reluctant
without further evidence to quantify it. Therefore I propose to leave this to
be decided along with other outstanding issues as to damage, by another
tribunal.
The issues as
to quantum of damages should in my view be referred for assessment to an
Official Referee.
