Negligence — House with defective foundations — Liability of local authority — Appeal from decision of official referee dismissing owners’ action against authority — House built on land formerly subject of opencast mining operations with subsequent back-filling — House not built in accordance with plans — A 5-in concrete floor-slab to have been placed on top of a concrete raft was omitted in favour of suspended timber floors and there was a 6-in layer of hardcore beneath the garage floor — A subsequent extension was built on strip foundations not tied into the raft — In due course cracking of plaster and brickwork and tilting took place and the value of the house, of which the appellants had a long lease, was substantially diminished — The judge found that the local authority and its predecessor had been in breach of duty in allowing the house to be built as it was, and not as its plans required, and in allowing the extension to be built with only strip foundations, not tied into the concrete raft, on a recently back-filled site — But the authorities made it clear that damages can only be recovered against a local authority if its acts or omissions under building byelaws have caused a present or imminent danger to the health or safety of the oc-|page:137| cupiers — In the present case the judge found that there had been structural defects, inconvenience and depreciation in value, but not any danger to health or safety — Accordingly the action failed — On appeal the judge’s findings of fact were criticised by the appellants, the physical damage to the house was analysed in detail, and it was sought to establish that there was possible danger to health or safety — Held by Court of Appeal that there was ample evidence to support the judge’s findings of fact and that there was no basis on which the court could interfere with the decision — Appeal dismissed
The following cases are referred to in this report.
Anns v Merton London Borough Council [1978] AC 728; [1977] 2 WLR 1024; [1977] 2 All ER 492; [1977] EGD 604; (1977) 243 EG 523 & 591, HL, [1977] 2 EGLR 94
Bluett v Woodspring District Council [1983] EGD 900; (1982) 266 EG 220, [1983] 1 EGLR 25
Investors in Industry Commercial Properties Ltd v South Bedfordshire District Council [1986] 2 WLR 937; [1986] 1 All ER 787; [1986] 1 EGLR 252, CA
Jones v Stroud District Council (1986) 279 EG 213, CA
Ketteman v Hansel Properties Ltd [1984] 1 WLR 1274; [1985] 1 All ER 352; [1984] EGD 903; (1984) 271 EG 1099, [1984] 2 EGLR 157, CA
This was an appeal by Melvyn Raymond Percival and his wife, Susan Mary Percival, from a decision of Judge Hawser QC, sitting as an official referee, dismissing their claim against the defendant authority, the present respondents, Walsall Metropolitan Borough Council, on the ground of negligence in the performance of its statutory duties under building byelaws or building regulations. The house which was the subject of the action was at 16 Greaves Crescent on the former plot 56 of the Coppice Farm Estate, Willenhall in Staffordshire.
C J M Symons (instructed by Herbert Smith & Co) appeared on behalf of the appellants; J E Mitting (instructed by Howarths, of Birmingham) represented the respondents.
Giving judgment, DILLON LJ said: This is an appeal by the plaintiffs in the action, Mr and Mrs Percival, against the dismissal of their action by His Honour Judge Lewis Hawser QC sitting as an official referee on April 6 1984. The appeal comes on such a long time after the judgment because it has been stood out pending the hearing of appeals first in a case of Ketteman v Hansel Properties Ltd [1984] 1 WLR 1274 and then Jones v Stroud District Council in which judgment was delivered by a different division of this court earlier this week*. In the event, the decision in the Jones v Stroud case does not greatly assist in the determination of this appeal. The court also has before it an application by the appellants to amend their notice of appeal to raise an issue which was not canvassed in the court below and a cross-appeal by the defendants, the Walsall Metropolitan Borough Council, against an order of Judge Hawser in respect of costs.
*Editor’s note: Reported at p 133 ante.
The plaintiffs are the owners under a long lease, and were the occupiers, of a dwelling-house, 16 Greaves Crescent, which was erected on a plot formerly known as plot 56 of the Coppice Farm Estate at Willenhall in Staffordshire. The case is yet another in which a house has been built on inadequate foundations, and after some damage subsequent occupiers sue the local authority for damages for negligence in respect of the performance by the local authority of its duties under its building byelaws or under the building regulations. In relation to the building of this house, the respondents are concerned as the statutory successors to the Willenhall Urban District Council, but they are also concerned for their own acts and omissions in relation to the building of an extension. The question is whether the plaintiffs have established that they have suffered or are likely to suffer the type of damage which they have to establish if they are to succeed.
In 1957 the Coppice Farm Estate was the subject of opencast mining operations by the National Coal Board. In 1958 and 1959, those operations having ceased, overburden subsoil and topsoil were replaced by a process of back-filling without being compacted. The Coal Board decided to dispose of the land for development as a housing estate, outline planning permission was granted in 1962, and in January 1963 the land was conveyed by the Coal Board to a Mr Greaves. On October 2 1963 byelaw approval was given for the erection of a number of houses, including the plaintiffs’ house, 16 Greaves Crescent. This was given by the Willenhall Urban District Council. In October 1963 detailed planning permission was granted, and in 1965 16 Greaves Crescent was built.
As the land on which the estate was built had been used for the mining operations which I have mentioned, with the subsequent back-filling, it was decided that the foundations should consist of a concrete raft, and according to the plans lodged it was intended to have an integral 5-in concrete floor-slab on top of the raft. As actually built, the houses, as the judge points out in his judgment, were not in accordance with the plans. The judge cites the following differences: first, the edges were only thickened at the external walls (they were 350 mm deep instead of 650 mm); second, the 5-in concrete floor integral with the slab was omitted, and instead suspended timber floors were built; there was a lack of reinforcement, and instead of what had been planned, the garage had, over the concrete raft, a 6-in layer of hardcore beneath the garage floor. This caused loads to be concentrated in the front of the house and was responsible for a degree of tilting which occurred and also for differential settlement.
The plaintiffs acquired the house in August 1971. In July 1977 the plaintiffs submitted plans for the erection of a single-storey extension to the front of 16 Greaves Crescent. This was to provide them with a dining-room. The plans were approved and the extension was built. However, this extension was built, as the plans provided, on strip foundations not tied in, as they should have been, to the raft foundation of the house. Both experts agreed that that was most undesirable, given the nature of the land.
The houses were built in semi-detached pairs: nos 16 and 14 forming one pair, nos 18 and 20 Greaves Crescent formed the next pair. In the course of 1977 there was severe subsidence of nos 18 and 20. In 1978 damage to 16 Greaves Crescent first appeared in the form of cracking of plaster and brickwork and tilting of the house. The plaintiffs retained a civil engineer to advise them. He applied in July 1979 for building regulation approval to underpin 16 Greaves Crescent, but that was rejected a month later by the respondent council for the reason that the design and construction would not overcome problems inherent in the ground. It was sought in the court below to raise an estoppel against the council because of this refusal of permission to underpin, but that submission was rejected by the judge and was not pursued on this appeal.
In April 1982 the writ in this action was issued. At that time the evidence was that the plaintiffs’ house in an undamaged state would have been valued at £19,000, but in its damaged state and in the light of the condition of the estate around it it was worth only £5,000. In September 1982 the plaintiffs moved out of the house, having an opportunity to rehouse themselves elsewhere. Nothing turns on that.
The judge found that the successive local authorities were in breach of duty in allowing, in the first place, the house to be built as it was and not as the plans required, and in allowing the extension to be built with only strip foundations, not tied into the raft, on a recently back-filled site. The question is whether the damage suffered by the plaintiffs is damage for which the local authority respondent is liable.
The local authority byelaws of the Willenhall Urban District Council, as of other local authorities at the time, were made under section 61 and the following sections of the Public Health Act 1936. These sections were enacted to safeguard occupiers of houses against danger to health and safety. Hence it has been held by decisions binding on this court that damages can only be recovered against a local authority if the acts or omissions of the local authority in relation to its duties under the building byelaws have brought about a present or imminent danger to the health or safety of the occupier of the house. I refer without detailed citation to the decision of the House of Lords in Anns v Merton London Borough Council [1978] AC 728, and especially to the speech of Lord Wilberforce at pp 753 and 759, to the decision of this court in Ketteman v Hansel Properties Ltd [1984] 1 WLR 1274† , to which I shall have to refer also later, to the further decision of this court in Investors in Industry Commercial Properties Ltd v South Bedfordshire District Council [1986] 1 All ER 787‡ and to the decision of this court in Jones v Stroud District Council, which I have already mentioned. The building byelaws were superseded by building regulations made by the minister in 1961 by amendment of section 61 of the 1936 Act.
† Editor’s note: Also reported at (1984) 271 EG 1099, [1984] 2 EGLR 157.
‡ Editor’s note: Also reported at [1986] 1 EGLR 252.
In 1974 section 61 was again amended by the Health and Safety at Work Act 1974, and the purpose of the building regulations was thereby expressed to be extended to cover the welfare and|page:138| convenience of occupiers of buildings as well as their health and safety. Because of that amendment, the appellants have applied in this court to amend their notice of appeal to claim damage to the welfare and convenience of the occupiers in respect of the extension which was built in 1977. They cannot make such an extended claim in respect of the house itself because that was built before 1974.
This new point was not taken in the court below at all, and for that matter it was never pleaded. If it had been raised and properly taken in the court below, there would have been evidence directed to the issue. There was not. Physical damage to the extension appears to be slight, and in the course of the trial the extension was treated as very much subordinate to the house itself. On principle such a point not taken below cannot be allowed to be taken on appeal if there would have been further evidence had the point been taken in time. Accordingly, I would refuse the application to amend the notice of appeal. Therefore this case proceeds on the footing that there is no distinction between the object of the byelaws and the object of the building regulations.
In his recital of the authorities, His Honour Judge Hawser referred to the decision at first instance of Judge Hayman sitting as an official referee in Ketteman v Hansel Properties. He referred to it as a case in which the judge had arrived at the same conclusion as Judge Stabb had reached in an earlier case of Bluett v Woodspring District Council, decided on May 24 1982*, where Judge Stabb had said:
It seems to me that once I have found that the defect in the foundations did not imperil the plaintiffs’ health or safety, no cause of action has arisen, and the plaintiffs’ claim must inevitably fail.
*Editor’s note: Reported at (1982) 266 EG 220, [1983] 1 EGLR 25.
In the event, Judge Hayman’s decision in Ketteman v Hansel Properties was reversed on the facts by this court. In his judgment, Lawton LJ said at p 1290:
An absurd situation, said [counsel for the plaintiffs], would arise if the occupiers of a building which was structurally unsound due to a local authority’s negligence and which was likely to become a danger to health or safety unless remedial action were taken had to wait until it was about to collapse before his right of action against the local authority was accrued.
Then a bit later Lawton LJ said at F:
Having regard to the absurdity to which [plaintiffs’ counsel] invited our attention, it seems to me that Lord Wilberforce’s use of the word ‘imminent’ should be understood to mean a danger which was likely to arise soon — and how long soon was in any case would depend upon the facts and would be a matter of degree. The trial judge did not consider the factor of the likelihood of danger arising soon. He should have done so. Having regard to the nature and extent of the cracks and the likelihood that the damage would be progressive, I would adjudge that there was an imminent danger to the safety of the occupiers of all five houses.
Whether that approach of Lawton LJ makes any difference on the facts of any particular case to the approach which Judge Hayman apparently adopted on the facts of the Ketteman case must depend on the facts of the individual case. It is the function of the trial judge to find the facts, and I remind myself that Judge Hawser was sitting in the present case as an official referee. His findings of fact are very clear. They are set out at the foot of p 24 and the top of p 25 of his judgment. He says this:
Mr Symons referred me to the tilt, to draughts and a certain degree of leaking and the possibility that the drains might be affected. But he did not argue very forcibly that the plaintiffs had been able to establish danger to health or safety. It seems to me to be clear from Mr Percival’s
that is the plaintiff’s
very frank evidence — and I would like to pay tribute to it, if I may — that although he, his wife and his two young daughters, now aged four and two, have suffered a good deal of inconvenience and the value of the property has diminished, there has not been any danger to health or safety. The house is stable. It is true that some further settlement and tilting can be expected, but this will not be anything like as much as has happened in the past, and will not produce, or is not likely to produce, danger to health or safety.
The damage was in the moderate category (that is no 3 of the Building Research Establishment Report, exhibit 9 at p 251).
The judge therefore came to the conclusion that the action must fail.
That finding of fact is worded to cover the future as well as the present, and amply covers the fears expressed by Lawton LJ in the passage I have read in Ketteman and the absurdity pointed out in that case with which Lawton LJ was dealing.
Mr Symons criticises the judge’s findings of fact, and he sets out 11 heads of physical damage. The first is cracking of the internal walls and ceilings all over the house, and where cracks were repaired by filler they reopened. Second, cracking of internal and external brickwork, with brickwork falling out in the garage and damage to brickwork internally; third, tilting of the house on its raft; fourth, differential settlement of the extension; fifth, cracking of the floor slabs in the garage; sixth, sticking of doors internally; seventh, drafts caused by the internal cracking; eighth, a leak in the dining-room at one time; ninth, a risk to services, especially drains; tenth, the certainty that there would be future deterioration because of the refusal of the local authority to allow underpinning; and eleventh, the differential loading in the house due to the fill in the garage (the hardcore) which was imposing a strain on the raft.
Mr Symons lists four points which he says the judge should have regarded. First, he says that the local authority considered the inherent problems of the ground so great that they would not permit any form of underpinning to the house. As to that, it seems to have been the view of the local authority that the inherent problems were not particularly great for the future but might be worsened by underpinning. Second, he says that the houses next door, nos 18 and 20, had to be partially demolished owing to their dangerous condition and underpinned (that was in 1977). Third he says that there had been recent damage to other houses in the area which was indicative of continued settlement, and fourth that the extension to no 14, the house adjoining no 16, had to be taken down as it had pulled away from that house. Mr Symons, when somewhat pressed as to the danger to the health or safety of the occupants, referred to a possible danger to health from drafts owing to the internal cracking or if the drains cracked, and a possible danger to safety if bits of plaster or brickwork fell or if, where there was a crack in the garage floor, a difference in levels developed. He also referred to the statement of facts in the report of the Anns case and submitted that the damage relied on in that case was similar to the damage suffered by the plaintiffs in the present case and he submitted that there had been no suggestion by their lordships in Anns that that damage was not sufficient to make out the plaintiffs’ claim in Anns. However, it must be noticed that their lordships in Anns were only concerned to deal with very important preliminary issues of law. The facts had not been investigated; the application was pre-trial, and the facts were to be gone into at the trial. In those circumstances I find it not at all surprising that their lordships did not comment on the facts but only decided the issues of law, and I do not think that any analogy on fact to the present case can be drawn from the statement of facts in Anns and the absence of judicial comment on those facts in that case.
Judge Hawser in his judgment, in dealing with the facts, plainly regarded nos 18 and 20 as being in a much worse condition than no 16. The work done there had been done as long ago, as I have already mentioned, as 1977. Though the extension on no 14 had been demolished because it had pulled away, the extension on no 16 had not pulled away. The external cracks are hairline cracks in bricks and mortar. The brickwork and plaster which had fallen out was not of substantial amount. In fact it seems that it was merely a fallout of plaster from fairly small cracks and more of brick dust than brickwork. The photographs do not show a bad condition of the house inside or out. Mr Percival agreed in evidence that there had been no signs of widening of the cracks in the last few years. Mr Barnett, his expert, said that the tilt, though significant, would not affect the overall stability of the house. The evidence was clear that though there would be some further deterioration, it would not be great compared with such damage as had already been suffered, which the judge found to be only in the moderate category and not severe.
In these circumstances there is in my judgment ample evidence to support the judge’s findings of fact which I have read. There is no basis whatever on which this court would interfere with those findings, and I would therefore dismiss the appeal.
I turn to the respondents’ cross-appeal in respect of costs. The order of the judge in respect of costs was that the respondents do pay to the plaintiffs two-thirds of their costs up to and including March 19 1984. That was the first day of the trial before Judge Hawser. The order came about because the respondents amended their defence under some pressure from the judge and, one might say, under protest, on the first day of the trial. The amendment introduced a new para 13 which says this:
If, which is denied, the Defendants and/or their statutory predecessors failed to exercise due care in and about the exercise of their powers and the performance of their duties under Section 64 of the Public Health Act 1936 and/or the byelaws of Willenhall Urban District Council and/or the Building Regulations 1979 and the Plaintiffs have in consequence suffered damage it is|page:139| denied that there is any present or imminent risk to the health and safety of the Plaintiffs and denied that such damage affects the stability or structure of 16 Greaves Crescent and denied that the Plaintiffs have any cause of action against the Defendants.
that plea is a denial throughout.
It was submitted that the respondents ought to have pleaded that denial at an earlier stage because of Order 18 rule 8 of the Rules of the Supreme Court, which provides:
A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality — (a) which he alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading.
All the instances given in that rule are cases where it is necessary for the defendant to adduce evidence and prove facts. They must therefore be pleaded, but the onus to prove present or imminent danger to health or safety was on the plaintiffs throughout. It was not on the defendants to plead and prove a negative. Unless the plaintiffs succeeded in proving present or imminent danger to health or safety, interpreted in the way in which that phrase has been interpreted by Lawton LJ, they would not have made out their cause of action.
Therefore, in my judgment, in dealing with this matter which cropped up after his main judgment, the learned judge, Judge Hawser, erred in principle in penalising the defendants in respect of the costs before they made their amendment. In so far as insistence that damage had to involve present or imminent danger to health or safety might take the plaintiffs’ advisers by surprise, which I very much doubt, that could only be because they were not sufficiently aware of the authorities to which I have referred, which would be rather startling in view of their connection with the Ketteman case.
Therefore I would discharge the judge’s order against the respondents to pay two-thirds of the plaintiff’s costs down to the date I have mentioned. The defendants had indeed resisted the plaintiffs’ claim on grounds on which they failed, in asserting that there was no breach of duty, for instance, and therefore it was a case in which the judge could fairly have said that there should be no order as to costs or that the defendants should only get a proportion of their costs, but in my judgment he was not entitled to make the defendants pay that part of the plaintiffs’ costs. In all the circumstances I would substitute for that order a direction that there be no order as to the costs of the proceedings down to the end of the trial at first instance. I would allow the cross-appeal accordingly.
STEPHEN BROWN and NICHOLLS LJJ agreed and did not add anything of their own.
The appeal was dismissed and the cross-appeal allowed; respondents to have costs of appeal, cross-appeal and application to amend notice of appeal. Leave to appeal to the House of Lords was refused.
