Action against local authority for breach of duty based on alleged negligence of building inspector in failing to ensure that a house had adequate foundations–House built on site of old gravel quarry which had been filled in–Settlement causing serious structural damage–Plaintiffs second assignees of house constructed on plot originally purchased from local authority–Inspector relied on borehole logs and advice supplied by consulting engineers–Previously instructed by local authority–Inspector carried out his task with reasonable care within the limits set by experts’ report–Not under a duty to have further boreholes sunk to test firmness of ground–Not inspector’s function to act as consulting engineer, insurer or warrantor–Inspector not negligent and action against authority therefore dismissed–Observations on scope of decision in Anns v Merton London Borough Council
The
plaintiffs, owners of a house at 5 Trinity Drive, New-market, sued the
defendant local authority, as successors to Newmarket Rural District Council,
for damages in respect of structural damage due to settlement. The plaintiffs
had purchased the house from the assignees of a person who had built it on a
plot which he had acquired from the Newmarket council.
P Leaver
(instructed by Crossman & Co, of Cambridge) appeared on behalf of the
plaintiffs; J J Davis QC (instructed by Taylors, of Newmarket) represented the
defendants.
Giving
judgment, SIR DOUGLAS FRANK QC said: In this action the plaintiffs, as owners
of a house known as 5 Trinity Drive, Newmarket, claim damages against the
defendants as successors to the Newmarket Rural District Council for breach of
statutory duty resulting in damage to their house.
In 1966 the
Newmarket Urban District Council owned land within the district of the rural
district council which they had divided into plots and offered for sale. Some
of the plots, including plot 5, were on ground which at one time had been
excavated as a gravel pit and then filled. A Mr R J C Collyer, a bricklayer,
was interested in buying plot 5 and in April 1967 applied for both planning
permission and consent under the building regulations to erect a two-storey
house with garage. On May 31 the clerk of the urban council sent a letter in which
he said that the preliminary investigation revealed that there had been
infilling on the site and that further investigations would be required and
that it would not be possible to proceed with the erection of a house until Mr
Collyer could be advised more about the nature of the land. In June the urban
council instructed Foundation Engineering Ltd, consulting engineers, to make a
site investigation. On August 2 that company reported that they had put down
three borings; they enclosed their borehole logs showing that the ground was
filled to a depth of 20 ft with sand, flints, chalk and other material. Their
advice was in these words:
Major
structural loads should not be set directly on the made ground without further
inspecting it by means of trial pits. However, for preliminary design purposes
only, a safe allowable pressure of 1/4 ton per sq ft may be assumed.
That
information was conveyed to the rural district council, who in turn told Mr
Collyer that ‘it would be necessary for foundations to be not less than 4 ft in
width and reinforced with two layers of no 9 BRC.’ Mr Collyer continued with the purchase of
plot 5 and on or about September 25 commenced to dig foundation trenches
although completion did not take place until about two weeks later. Following
the inspection of the foundation trenches by the building inspector, J F D
Hazelwood, the rural district council wrote to Mr Collyer on September 26
saying:
The
foundation trenches in connection with the above development have now been
inspected, and it will be necessary to reinforce concrete foundations with not
less than one layer of no 9 BRC fabric.
That letter
was drafted by Mr Hazelwood. He cannot remember why he reduced the layers of no
9 BRC fabric, but nothing turns on that.
The house was
built, although it seems to have taken a long time to complete it. In April
1971 Mr Collyer complained that there had been movement in the corner of his
house and garage which he attributed to water discharge by a soakaway from a
swimming pool recently constructed almost opposite his house by the county
council. The county council denied that allegation and attributed the cracks in
Mr Collyer’s house to the settlement of the site.
Mr Collyer
sold the house to a Dr McLean, who in turn sold it to the plaintiffs in 1972.
In response to a requisition for search the clerk of the council said:
This property
was partially constructed on the site of an old gravel quarry and as a result
of this the Newmarket Urban District Council employed a consultant structural
engineer to advise on the suitability of the site. These recommendations from
this specialist firm were incorporated in the design of the foundations.
That letter
was revealed to the plaintiffs’ solicitor following the search at that time and
he advised them to have a survey carried out, but they declined. Within a short
time of their occupation of the house cracking in the walls began to appear
which became very serious. It is common ground that this cracking is due to
settlement of the site. It is the plaintiffs’ case in a nutshell that the rural
district council’s building inspector, namely, Mr Hazelwood, was negligent in
failing to ensure that the house had adequate foundations and accordingly the
defendants are liable for the cost of making good the damage to the house.
Mr Hazelwood
had seen the borehole logs and had been supplied with the calculations leading
to the requirement for foundations of not less than 4 ft wide with
reinforcement; it was not his function to question those matters. Moreover, it
is no part of the plaintiffs’ case that the foundations as specified and laid
did not provide for a pressure of 1/4 ton per square ft as advised by
Foundation Engineering Ltd. When Mr Hazelwood inspected the foundation trenches
before sending his letter of September 26, he prodded the trenches with a
crowbar every pace and examined the soil. He found that
levelling pegs were rigid, that there was no loose fill or putrescible matter
and in general that there was no cause for concern or anything to lead him to
believe that strip foundations 4 ft wide would not be safe.
I am satisfied
on the evidence, notwithstanding the borehole logs and the advice of Foundation
Engineering Ltd, that the ground had not sufficiently consolidated to avoid
settlement with only strip foundations and that settlement could only have been
avoided by deep piling to firm ground. I so find notwithstanding the
defendants’ argument that the settlement might have been caused by water from
the soak-away of the swimming pool; having regard to the fall of the land and
the quantity of water discharged that seems highly unlikely. The question then
is whether Mr Hazelwood, knowing the site to be on made ground, carried out his
inspection with reasonable care or, on the other hand, whether he was negligent
in allowing the house to be built without seeing that the foundations were
adequate. It was finally conceded by counsel for the plaintiffs that Mr
Hazelwood could only satisfy the duty which it is said was incumbent upon him
by having boreholes sunk to the bottom of plot 5, that is to a depth of 20 ft,
for otherwise he could not be sure of there being firm ground.
The case of Anns
v Merton London Borough Council [1978] AC 728 established or confirmed
the principle that there is a duty on a building inspector to exercise
reasonable care to ensure that the regulations applicable to foundations are
complied with. I bear in mind that a building inspector has limited
qualifications; ordinarily he is not a civil engineer, architect or chartered
surveyor and cannot be expected to be vested with the expertise of those
professions. Mr Hazelwood had to rely on the advice of those qualified to give
it, such advice being based on a soil exploration and analysis. He carried out
a routine inspection and complied with the advice of the soil engineers in that
the trial pits, namely, the trenches, were carefully inspected and found
unexceptional. Mr Leaver says that that was not enough. At first he said that
Mr Hazelwood should have used an auger, but when it was pointed out that an
auger would not reach the bottom of the filled land, he said that the duty of
care was to sink boreholes to the bottom of the site and that was the essence
of the plaintiffs’ case. It seems to me that what is enshrined in that
submission is the proposition that it is the function of the local authority to
carry out for a developer the functions of a civil engineer in ascertaining the
suitability of a site for building and advising on the design of that building.
It puts the building inspector in the position of consulting engineer, insurer
and warrantor.
The
plaintiffs’ contention might not only involve design of the foundations, for
the size and type of the foundations might depend on the design and layout of
the superstructure. The burden on the local authority and the cost to the
ratepayer would be immense and I cannot conceive that either Parliament or the
House of Lords in Anns case ever envisaged that such a burden would be
placed on the building inspector and the local authority. In my judgment the
building inspector, armed as he was with the technical advice and following it
with reasonable care, was under a duty to ensure that the foundations were in
accordance with the requirements made in his letter, but no more. Indeed, it is
not established that even if further boreholes had been taken, the results
would not have been the same as those found by Foundation Engineering Ltd.
I have great
sympathy for the plaintiffs who bought a house which will cost a large sum to
put into a fit state, but really they have only themselves to blame for not
having the house surveyed, for a survey almost certainly would have revealed
the defects. Be that as it may, it follows from the conclusion which I have
reached that the action against the defendants must fail. Under the
circumstances it is unnecessary for me to consider two other questions which
arose, namely, whether the plaintiffs were guilty of contributory negligence
and what is the proper measure of damage. However, for completeness I may say
that I do not think that the question of contributory negligence arises, as the
plaintiffs were not parties to the building of the house. As to damages, in my
judgment, had the plaintiffs succeeded, they would have been entitled to the
cost of the repairs as soon as it was reasonable to execute them, irrespective
of personal financial circumstances; I would have assessed them at £8,350.
The action was dismissed with costs.
