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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Crowley (t/a Crowley Civil Engineers) v Rushmoor Borough Council [2009] EWHC 2237 (TCC) (18 September 2009) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2009/2237.html Cite as: [2009] EWHC 2237 (TCC) |
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QUEEN'S BENCH DIVISION
Technology and Construction Court
131 – 137 Fetter Lane, London, EC4A 1HD |
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B e f o r e :
Between:
____________________
Mr Timothy Crowley t/a Crowley Civil Engineers |
Claimant | |
| and | ||
Rushmoor Borough Council |
Defendant |
____________________
Mr Paul Darling QC (instructed by Wansboroughs, Northgate House, Devizes, Wiltshire, SN10 1JX) for the defendant
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Judge Thornton QC:
A. Introduction
Crowley,
trading as
Crowley
Civil
Engineers
("
Crowley"),
is claiming a contribution from the defendant,
Rushmoor
Borough
Council
("
Rushmoor")
under section 1(1) of the
Civil
Liability (Contribution) Act 1978 ("CLCA"). The claim arises out of the settlement of the main action in which
Rushmoor
was the first defendant and
Crowley
was the second defendant. The claimants in the main action were four members of the Sampla family ("the claimants") whose end of terrace house, Number 80 Queen's Road, Aldershot, Hampshire ("Number 80"), partially collapsed on 5 July 2002. This collapse occurred when paving work was being carried out on a public open space owned by
Rushmoor
that was located immediately adjacent to the exposed flank wall of Number 80. This work was being carried out by
Crowley
for
Rushmoor
and it caused a significant withdrawal of support to the flank wall foundations of Number 80. In the main action, the claimants claimed that the partial collapsed was caused by the negligence of both
Rushmoor
and
Crowley
and claimed damages based on the extensive cost of rebuilding and reinstating Number 80, the
value
of their possessions that were lost or damaged by the partial collapse and all the other resulting direct and consequential losses that had occurred. Both
Crowley
and
Rushmoor
had, when serving their respective defences in the main action, joined into those defences an additional claim against the other defendant seeking contribution for any liability to the claimants that that defendant might incur.
Crowley
agreeing to pay the claimants £384,500 and their assessed costs incurred in the main action.
Rushmoor
declined to pay anything towards this compromise which was finalised by a consent order dated 25 September 2008. The effect of this compromise was to stay the main action against both
Crowley
and
Rushmoor.
This order also provided that
Crowley
and
Rushmoor's
respective contribution claims would continue even though the main action had been stayed. In consequence,
Crowley
has continued with its CCLA contribution claim and now claims from
Rushmoor
such part of its liability to the claimants under the compromise as the court determines to be fair and reasonable for
Rushmoor
to fund.
Crowley
contends that by far the greater part of this liability should be funded by
Rushmoor
whereas
Rushmoor,
in its defence, maintains that it should fund no, or only a
very
small, part of this liability.
taken
of the site before or after the collapse, no site survey was undertaken and no trial pits were dug prior to work being started.
Various
photographs were
taken
of the exposed foundations during the course of the work and of Number 80 in its damaged state after the collapse. My findings in relation to the topography of the site and the details of Number 80 and its foundations are based on the following sources of evidence:
(1) The photographstaken
by the experts and by Mr Simpson;
(2) The evidence and recollections of the three witnesses who had any first hand knowledge of the site and the work:
(i) MrCrowley,
![]()
Crowley's
sole proprietor;
(ii) Mr Ward, one ofCrowley's
general labourers who was also the machine driver and in charge of the work on site; and
(iii) Mr Simpson,Rushmoor's
Highways
Engineer
who was responsible for the paving work on
Rushmoor's
behalf;
(3) The measurements, site observations of the site in its rebuilt state and deductions from the photographs and other relevant documents made by one or more of the three experts who were instructed in this case being:
(i) Dr Love acivil
![]()
engineer
instructed on behalf of the claimants;
(ii) MrVincent
a chartered building surveyor instructed on behalf of
Crowley;
and
(iii) Mr Whiting, a chartered surveyor instructed on behalf ofRushmoor;
![]()
(4) The joint statement signed by all three experts and dated 20 June 2008; and
(5) Data obtained by Dr Love and MrVincent
from a report prepared by Richard Jackson plc ("RJP"), consultants appointed by the claimants' insurers to design and superintend the reconstruction works.
B. Issues
Crowley
and
Rushmoor
had caused the withdrawal of support and consequent collapse of part of Number 80 on a
variety
of grounds based on negligence, negligently caused nuisance and interference with Number 80's easement of support.
Crowley
accepted in its defence in the main action that it negligently caused this withdrawal in relatively insignificant respects but, otherwise, all the allegations of both breach and causation were denied by both parties. However, both
Crowley
and
Rushmoor
have adopted, and now pursue, the claimants' allegations against the other. There are significant disagreements between both parties as to the material facts and as to aspects of the expert evidence. All these disagreements therefore give rise to issues as to the material facts and expert evidence, as to each party's breaches of duty owed to the claimants, as to causation and as to the contribution that each party should make towards the compromise of the main action. The compromise itself is not in dispute since
Rushmoor
accepts that the compromise and all its terms are reasonable.
Crowley
to lay a sub-base for, and then the paving of, the public open space following the removal of a planter that was providing structural support for those foundations. This exposure extended to depths below the foundations ranging from 130mm to 400mm. The first group of issues is concerned with the original design and execution of the work.
Crowley
contends that the foundations were unusually and unexpectedly shallow and were supported structurally by the planter, that
Rushmoor
should have undertaken a pre-contract site investigation which would have revealed the shallow nature of the foundations and the full extent of the support provided by the planter and that no collapse would have occurred had it been known before work started that special measures would have to be
taken
to protect the foundations temporarily during the excavation work and permanently thereafter.
Rushmoor
contends that no such investigation was necessary and that the exposure of the foundations and subsequent collapse only occurred because of
Crowley's
negligent over-excavation of the site.
Crowley's
subsequent attempt to prevent the foundations from being undermined following their full exposure and the consequent dangerous undermining of the flank wall. At that point, Mr Simpson,
Rushmoor's
Highways Manager,
verbally
instructed
Crowley
to implement supportive measures. It is accepted by both parties that the measures that
Crowley
started to implement were dangerously inappropriate and that the different measures that Mr Simpson stated in evidence that he had instructed
Crowley
to implement were appropriate and might well have saved Number 80 from partial collapse.
Crowley
denies that Mr Simpson instructed the appropriate measures that Mr Simpson stated in evidence that he had instructed and contends that he actually instructed it to undertake the dangerously inappropriate measures that it was in the process of implementing when the partial collapse occurred. There is, therefore, a significant dispute as to what measures Mr Simpson actually instructed
Crowley
to implement.
Crowley's
case in summary is that it is not liable for the consequences of its partial implementation of a dangerously inappropriate supportive scheme. It contends that Mr Simpson was negligent in devising and then instructing it to implement this work and that he now wrongly asserts that he instructed different and safe work so as to cover up his original negligence. Moreover,
Crowley
had no option but to follow Mr Simpson's original instructions given the terms of its contract with
Rushmoor.
In consequence,
Rushmoor
is solely responsible for the consequences of the partial implementation of Mr Simpson's negligent instructions.
C. Issue 1: Material Facts
(1) Introduction
vacant.
This demolition left an open narrow rectangular strip of land 18 feet wide and approximately 81 feet deep[1] between the flank wall of Number 80 and the side of Church Street where it runs into Queen's Road. This strip is therefore bordered on its two long sides by the flank wall of Number 80 and by Church Street as it runs into Queen's Road and, on its two shorter sides by a small stretch of Queen's Road as it runs from Number 80 to the corner with Church Street and by the flank wall of Stable Cottage, the first property in Church Street. This strip is the area which
Crowley
had contracted to repave.
Rushmoor
as a
vacant
site in January 1975 and declared to be a public open space. It was then turned into an amenity area comprising a paved area with public benches and behind which a planter was constructed in which were planted a
variety
of trees, bushes and shrubs. There was no direct evidence as to who converted this site into an amenity area or as to when the necessary work was carried out. However, the paved area is open to the public and the site is a public open space which has never been formally dedicated as part of the highway[2]. It is therefore an obvious inference that the amenity area, being both the planter and the adjacent stepped paved area, had been constructed by
Rushmoor
soon after it had acquired the
vacant
and private site in 1975 from its previous owner who was a private individual. There would have been no other reason for
Rushmoor
to acquire that
vacant
and otherwise redundant piece of land, for which it paid £1,000, other than to turn it into a public open space. Moreover, the site had not been turned into an amenity area at the time of the conveyance[3] but this work had been completed by 1979 when Mr Sampla bought Number 80 since the amenity area with its planter was in place at that time. Thus,
Rushmoor
was the only person or body entitled to carry out this work.
Rushmoor
acquired the site when it was a
vacant
and private plot in order to turn it into a public open space. It achieved this objective by turning it into an amenity area comprising a stepped area made up by a planter on the upper step and a paved area on the lower step. This entire project was undertaken soon after
Rushmoor
acquired the site in 1975.
(2) Factual matrix
vegetation
growing, and the moisture accumulating, in the planter. Secondly, the amenity area attracted
vandals,
drug addicts and
vagrants.
Indeed, it had become known locally as "Dossers' Den". This resulted in rubbish and other detritus accumulating in and around the planter. The amenity area was also regularly used by fly tippers and by adolescents for intimate activities. Over the years, Mr Sampla had regularly complained to the
council
about these problems and had unsuccessfully requested
Rushmoor
on several occasions to cure the damp penetration problem into Number 80, to clear up the rubbish and to stop the site being used for antisocial purposes.
Rushmoor's
Department of Highways and Transport Services to arrange to have the paved and planter areas cleared of rubbish and cleaned up on two occasions in 2000 as part of that section's street cleansing work.
councillor
about the amenity area problems who, in turn, contacted Mr Pettitt,
Rushmoor's
Head of the Department of Highways and Transport Services. This department undertook all of
Rushmoor's
highways and public open spaces responsibilities. Within the Department, highways maintenance and cleansing was the responsibility of the Street Cleansing section managed by Mr Millington, the Highways Manager. He was directly responsible to Mr Pettitt and he was also Mr Simpson's manager. Mr Simpson was a Highways Officer with responsibility for supervising street cleansing and ancillary minor highways maintenance work carried out by the Street Cleansing section.
councillor's
complaint was the sixth complaint to
Rushmoor
about the amenity area that had been instigated by Mr Sampla in the preceding five years. This complaint, as before, included a request that the amenity area should be cleared of the
vegetation
that was causing Number 80 damp penetration problems and that it should also be regularly cleaned up and rid of antisocial behaviour that it continued to attract. Mr Pettitt
visited
the site and then passed the
councillor's
complaint to Mr Simpson for action. As it happened, Mr Sampla had also separately re-established contact with Mr Simpson at about the same time and had asked Mr Simpson to resolve all the on-going problems associated with the amenity area.
"Resident complains of damp through his wall and foliage from planted area being a nuisance – can you please inspect the property and let me know if there is a problem and if the problem is on our land."
visited
the amenity area and decided that it was appropriate to extend the scope of work beyond that suggested by Mr Pettitt. He considered that, in order to stop the antisocial uses to which the site was being put, the planter should be removed and the entire area should then be paved. Mr Pettit stated in evidence that the proposed work, even though it involved site excavation, would not in his opinion have affected the foundations of Number 80. It was clear from his evidence that he had failed to consider that possibility when he inspected the site. Mr Pettitt then left Mr Simpson to sort out the details of the work that had been proposed by Mr Simpson and took no further part in the design or implementation of the proposed work.
Rushmoor's
shorthand, Direct Labour Organisation or DLO maintenance and cleansing work. Such work was invariably carried out in an informal manner that merely required a requisition and order signed by Mr Simpson and countersigned by Mr Pettit.
engineering
technician.
Rushmoor
Building Control Department or to search out the documents in
Rushmoor's
possession that related to its acquisition of the amenity site. He clearly regarded such enquiries as being unnecessary since, in his inexperienced
view,
there was no possibility of the proposed work affecting any part of Number 80. Mr Simpson stated in evidence that it was never his practice to dig a trial pit or otherwise investigate the possible impact of proposed highway excavation work on adjacent buildings. He clearly assumed that the necessary excavation depth would not exceed 215mm anywhere on the site and that such a limited depth of excavation could not possibly have any adverse effects on the adjacent structure or its foundations.
Crowley.
Mr Simpson at that time regularly used a large
engineering
contractor called Quadron for the cleansing and maintenance work he arranged but he considered that Quadron was too large a contractor to undertake this
very
small contract. He therefore decided to invite Mr
Crowley,
as one of the small local contractors that he knew of, to meet him on site to discuss the proposed work with the intention of using him for that work. Mr
Crowley
had at that time only been in business on his own for a short period and he was then in his early thirties. He was a small unincorporated one-man contractor who only worked for local authorities. He traded as
Crowley
Civil
Engineers
and he employed three semi-skilled labourers. His sole formal qualification was an HNC in
Civil
Engineering.
He had previously undertaken two jobs for Mr Simpson and had proved himself to be an efficient, low-cost highways maintenance and cleansing contractor. Mr
Crowley
was keen to again impress Mr Simpson since he wanted to attract a regular supply of local authority work from
Rushmoor.
He was in consequence particularly keen to carry out any proposed work precisely as required by Mr Simpson in order to attract a regular supply of such work.
Crowley.
Mr Simpson stated in evidence that he considered that Mr
Crowley
was a qualified
civil
engineer
and that, in consequence, he had relied on him to finalise the details of the work and to ensure that Number 80 would be protected from, and left undamaged by, the excavation work. For the same reason, he left him unsupervised on site to complete the work in a satisfactory manner. This
view,
it emerged in questioning, had been formed solely because Mr Simpson knew that Mr
Crowley
traded with the name "
Crowley
Civil
Engineers".
view
in 2002 of Mr
Crowley
or his expertise or that he relied on him in any way for any aspect of the design or detailing of the work. The reality was that Mr Simpson chose Mr
Crowley
because he had proved himself as a small one man business whose sole area of operations was highways cleansing and maintenance work. Mr Simpson would have seen Mr
Crowley's
estimates which were provided on his standard estimate form which held Mr
Crowley
out, perfectly correctly, as "Proprietor Mr T.D.
Crowley"
with no professional qualification being shown after his name and which described the business as being that of "
civil
engineers".
civil
engineers",
when used to describe a contractor, has a different and less formal meaning to the description "
Civil
Engineer"
when used by a qualified professional
civil
engineer.
The former use of "
civil
engineers"
merely describes the activities of a contractor whose business involves anything associated with external structures. This description does not connote anything about the size, turnover, experience or qualifications of that contractor and its personnel. The latter use of "
Civil
Engineer"
describes a member of the
Civil
Engineering
profession who has qualifications in
civil
engineering
up to, at least, first degree level and who is invariably a member of the Chartered Institute of
Civil
Engineers..
Crowley
and from his knowledge of the difference between
civil
engineering
contractors and a "
Civil
Engineer",
Mr Simpson had, or should have had, no expectations about Mr
Crowley
other than that he had recently satisfactorily performed two minor paving maintenance and cleansing contracts for
Rushmoor.
civil
engineer.
In reality, Mr Simpson considered that he was contracting for a simple maintenance contract with a small maintenance contractor whom he considered to be a technically proficient small-scale highways maintenance contractor. He was not in any way relying on Mr
Crowley
for any aspect of the design or specification of structural or building work.
(3) The contract
Crowley
to the site on 6 June 2002. Mr Simpson also had a similar small job of approximately the same size that needed to be undertaken on Aldershot High Street. He decided to arrange for both these jobs to be done together as one contract and so he took Mr
Crowley
to
visit
that site at the same time. Given the proposed informal contract, Mr Simpson did not provide Mr
Crowley
with any documentation on which to base his estimate when he took him to these two sites.
"Grub up trees and lay block paving"
on both the Queen's Road/Church Street and the High Street/Court Road sites. At the site meeting on the amenity site, Mr Simpson explained to Mr
Crowley
what was required. Mr Simpson stated that the brick dwarf wall of the planter, the soil and shrubs it retained and the existing paving in front of the planter should all be removed. The whole site should then be excavated to a depth of 215mm, provided with an appropriate sub-base and sand and then paved with block paving using
Rushmoor's
standard block paving detail that Mr
Crowley
had previously used. This detail required the excavated base surface to be firm and level so as to receive one of the prescribed sub-base materials. It followed that additional excavation would need to be carried out if this was necessary in order to provide a suitable surface for the sub-base.
Crowley's
evidence was that he then asked Mr Simpson whether it was alright to excavate down to 215mm in areas adjacent to the flank wall of Number 80 given the potential damage that he assumed could occur to a dwelling house situated immediately adjacent to the proposed excavation work. Mr
Crowley's
evidence was that he was re-assured by Mr Simpson's reply which was to the effect that this was alright and that he, Mr Simpson, had no concerns with regard to excavation work being
taken
up to, or being undertaken down adjacent to, the external flank wall of Number 80. Mr Simpson denied that Mr
Crowley
ever asked him this question or that he had provided any answer in the same or similar terms to the answer that Mr
Crowley
said that he had given.
Crowley's
evidence. I consider that Mr Simpson would have raised in discussion the question of how the site was to be excavated and whether it was safe to excavate up to the flank wall and that, if for some reason he had not raised this subject, Mr
Crowley
would have himself raised it with Mr Simpson. Given the background that I have already described, I am satisfied that Mr Simpson would have answered Mr
Crowley's
question in the way that Mr
Crowley
stated that he did. That suggested answer was in identical terms to Mr Simpson's previously formed
view
that the proposed work could be safely carried out and would not affect the structure of Number 80 in any way. It was suggested that the fact that Mr
Crowley
asked this question showed that he had concerns about the structural stability of Number 80 and was involved in the detailing of the proposed adjacent excavation work. I reject those suggestions. Mr
Crowley
was merely seeking re-assurance from Mr Simpson that Mr Simpson's instructions could be safely carried out and was entirely reliant on Mr Simpson's re-assuring reply.
Crowley
therefore accepted Mr Simpson's assurance and on his return home, devised a working method that could be used by
Crowley
which he then costed in the form of a lump sum estimate. This estimate was based on a working period of five days using his three labourers. He included in his estimate the cost of the hire of a small mechanical excavator and the cost of excavating across the site in successive
vertical
strips to a depth of 215mm and of acquiring and laying a sub-base of scalpings followed by a sand layer and then laying the block paving over the whole site. He proposed to sub-contract the actual laying of the block paving to a paving sub-contractor that he had previously used. For the amenity site work he submitted an estimate dated 7 June 2002 for £4,870.76. He coupled this with an estimate for the High Street work for £3,987.86. Both sums excluded
VAT.
Crowley'
estimate stated:
"Thank you for yourvalued
enquiry and further to our recent site
visit
we are pleased to submit the following quotation for your kind attention.
Court Road – Junction Paving
To excavate and clear trees, shrubs along with brickwork from site. Followed the supply and lay of block paving carried out in herringbone pattern and in accordance with your standard specifications.
Leaving the site tidy on completion.
For all plant, labour and materials.
For the sum of £4,840.76 (Exc.VAT)."
The estimate also included in a combined estimate the proposed High Street work.
Rushmoor's
internal procedures required an appropriate requisition to be issued which Mr Simpson issued on 18 June 2002 and Mr Millington then countersigned. The estimated cost was stated to be £8,828.62, being the combined estimate for both jobs. Mr Simpson then issued
Crowley
with an official
Rushmoor
order, also dated 18 June 2002, which was in these terms:
"Queens Road/Church Street/High Street/Court Road – Please grub up trees and lay block paving."
The order also stated that:
"Invoices quoting order number to be sent to the address at the top of the order. No goods to be supplied or work done except upon an official order. All goods must be carriage paid. E. & O.E. Terms: Payment 30 days from receipt of invoice (unless otherwise agreed)."
Crowley's
estimate, constituted the contractual offer to
Crowley
to undertake the proposed work. This was because
Crowley's
document was worded as an estimate or quotation and not as an offer. Moreover,
Rushmoor's
order was worded in different terms to the estimate and it stated on its face that the work had to be carried out on an official order. Therefore, the estimate was not intended to be, and could not in law have been, a contractual offer, this was provided by
Rushmoor's
official order.
Rushmoor's
contractual offer was accepted by
Crowley's
conduct in starting work on the Queens Road site on Friday 28 June 2002. Since the estimate was not referred to in
Rushmoor's
order, it was not as a matter of law formally incorporated into the contract although, by necessary implication, the work to be carried out was the work instructed by Mr Simpson on site and as described in the estimate and the price was the lump sum provided by
Crowley's
estimate.
Crowley
in his previous dealings with
Rushmoor.
That detail provided the minimum depths for the sub-base material that would have to be laid under the block paving and sand layers. It also provided that the materials to be used were only to be materials chosen from those materials that were identified in clauses 603, 605 or 606, being clauses of the relevant British Standard. In this case, Mr Simpson chose and designated the use of scalpings, being one of those designated materials. Thus,
Crowley
was to lay a 100mm layer of scalpings and then a 50mm layer of sand. The clauses also specified that the excavated surface offered up for the sub-base scalpings should have had all soft spots, any
vegetation
roots and all other material capable of deteriorating or compacting removed and should be left in a firm and level state.
Crowley
had no need to provide protective measures or to consider further whether protective measures were needed for the flank wall. Equally, he had no need to consider whether any intended method of excavation had to be adapted to safeguard the house and its foundations. It followed that if any additional excavation or protective work was needed, such work would fall within the E. & O. E. term in the contract since the work would have been necessitated by an error or an omission arising from Mr Simpson's design of the work and as a result of his unequivocal assurance given to Mr
Crowley
during their site inspection. If such work turned out to be required, it would have to be carried out but would have to be paid for by
Rushmoor
as additional work since it would have been necessitated by Mr Simpson's error or omission when specifying the work originally.
(1) The contract contained no implied terms as to fitness for purpose sinceRushmoor
was not relying on
Crowley's
skill and judgment in relation to any element of design, detailing or working method.
(2)Rushmoor
had provided a warranty, which had contractual effect, that the specified planter removal and paving excavation work could be safely undertaken up to the external face of the flank wall of Number 80.
(3)Crowley
had been asked to provide an estimate for, and had then accepted the offer of, a contract involving three simple work items: the demolition of the planter brick retaining wall and the removal of its contents; the excavation of the existing ground to a depth of 215mm across the site and the laying of block paving over a scalpings sub-base course and a sand topping level. The datum levels were to be
taken
from the levels at the inside edge of the adjacent pavement in Church Street.
(4)Crowley
had to undertake any additional excavation that was necessary to provide a firm and suitable sub-base surface across the site so that the paving would lie across the site with a cross-fall of 2.5 such that it would abut and be level with the internal edge of the existing pavement
(5) Any other necessary work than the clearly specified work had to be carried out but would have to be paid for as an extra since it fell outside the work that was subject to the contractual lump sum. This was because of the effect of the E. & O. E. term in the contract whose effect was that any necessary work omitted from the contract by error or omission was work that had to be performed but which did not fall within the work covered by the lump sum. Thus,Crowley
would be entitled to additional payment for carrying out such work. Any additional excavation to depths greater than 215mm, the breaking up of the concrete sections of the planter retaining wall and any necessary temporary or permanent supportive measures would all have fallen within the scope of the E & O E provisions of the contract since none of this work was expressly specified or detailed in the contract.
(6)Crowley
was entitled to carry out the necessary excavations in any acceptable manner so long as this excavation method was carried out with reasonable standards of workmanship. Further,
Crowley
had no obligation to provide a method statement for this excavation work.
(4) Site and excavation details
very
shallow foundations. The brickwork was founded on a single brick corbel approximately 150mm deep which was sitting on the edge of blocks of concrete of about 200mm in depth so that only a narrow strip of the underside of each corbel was resting on an equivalently narrow strip of a concrete block which otherwise spilt outwards beyond the brickwork. It was obvious to those who inspected the exposed foundations or who looked at photographs of them that these concrete blocks had been placed in position long after Number 80 had been constructed and it was concluded, correctly as I find, that this concrete had been placed in position at the time that the foundations had been exposed as part of the construction of the planter in the 1970s.
varied
in depth from about 150mm below the front corner of the foundations, from about 300mm below the external redundant chimney flue in the middle of the foundations and from about 200mm at the rear corner of the foundations. Below this topsoil were layers of firm brown to orange brown silty sandy clay overlying firm orange brown, grey silty sandy clay. This overall layer of clays
varied
in depth from about 500mm below the front corner to about 130mm or less at the rear corner. Below this clay was a layer of moist fine sand. The topsoil was described by Mr
Crowley
as being
very
damp and soft, a condition that had been exacerbated by heavy rain on the day before and the day of the partial collapse. The loose and wet topsoil of
variable
depth and texture was not suitable, but the clay and moist fine sand sub-soil layers were suitable, as surfaces onto which the sub-base of scalpings could be placed.
varied
in height above ground from about 400mm at the front to 600mm at the rear of the site. Its width of the planter was not identified in the evidence but it occupied about half the site and must, therefore, have been between 6 – 8ft or 2 – 3m wide. The wall was constructed parallel to the flank wall. As a result, the planter was constructed in an approximately rectangular shape with three sides formed by the dwarf wall and the fourth by the flank wall. The external face of the dwarf wall was constructed in brickwork. However, when the planter was demolished,
Crowley
discovered that this brickwork was merely the outer skin of the retaining wall and it only had a decorative purpose. The inner skin of the wall was constructed of concrete placed on a concrete slab foundation. The planter was full of topsoil which had been placed directly onto the underlying topsoil and clay layers. The planter soil was not, therefore, placed on top of paving. As constructed, the planter soil and the relatively loose pre-existing disturbed topsoil layers resting on the underlying clay merged so as to leave a depth of up to about 200mm of loose mixed material below the enclosure created by the dwarf wall that was unsuitable for providing a base for the scalpings..
Crowley
was required to use as datum levels the finished paving levels at the inside edges of the pavement in Church Street. However, the slope of the site towards Stable Cottage was relatively steep such that the level of the underside of the flank wall foundations at the rear of the site was at least 200mm lower than at the front of the site. Moreover, the slope down across the site from the flank wall towards Church Street was also relatively steep. As a result, it was inevitable that the minimum depth of excavation 215mm down from the surface at the datum would have the result that the excavation adjacent to the foundations would extend to depths of up to 300mm below the excavated level at the flank wall and would therefore be at depths close to or at the flank wall that greatly exceed the stipulated 215mm.
Vincent
produced three representational cross-sections drawn across the front, middle and rear of the site. These had been drawn to show where the excavated surface would have had to have been located relative to the underside of the flank wall foundations assuming that the minimum possible excavation depth had been achieved using the prescribed datum levels. Mr
Vincent
presented these cross-sections as part of his evidence. There was no effective challenge to this evidence and I accept the cross-sections as an accurate representation of the relative levels of the excavated surface of the site and the underside of the concrete blocks forming the lower part of the flank wall foundations assuming that the minimum possible depth of excavation had been achieved. These cross-sections showed the excavated level to be at least 100mm below the foundations at the shallowest part of the site, 200mm in the middle part of the site and 300mm at the lowest part of the site. No account was
taken
when preparing these sections of the foundations below the redundant chimney flue where the excavated level would of necessity have extended much further below the foundations than that represented on these cross-sections.
Crowley
discovered that the tree roots that remained were extensive and penetrated into the underlying loose topsoil and clay. This was because the loose topsoil within the planter extended down to at least the bottom of the shallow foundations of the dwarf wall and into the topsoil layer placed below the concrete mass foundations of Number 80.
variable
depths below the flank wall foundations shown on Mr
Vincent's
representative cross-sections were minimum depths. In reality, the excavation had to be significantly deeper as a result of:
(1) The large step in the site and the site's relatively steeply sloping nature in both a downwards and a sideways direction;
(2) The removal of soft spots and the layer of poor quality topsoil below and adjacent to the flank wall foundations that was unsuitable to receive the prescribed sub-base of scalpings and sand topping;
(3) The need to grub out the tree roots at the many points where these had penetrated the existing topsoil and clay layers below the planter;
(4) Thevery
shallow brick corbel foundations coupled with the
variable
depth of the concrete mass footings below this brickwork; and
(5) The need to provide the prescribed cross-fall of 2.5 in the paving surface down from the flank wall to the pavement in Church Street.
Crowley,
Mr Ward and Mr Simpson.
taken
to a depth of 600mm below the foundations. This additional exposure occurred along a short stretch around a redundant chimney flue, the remains of which were clearly
visible
on the flank wall at that location. In consequence, at this location, the foundations were even shallower than elsewhere along the flank wall. Moreover, the excavation also had to be appreciably deeper at this point than elsewhere along the flank wall due to localised unsuitable soil and base course material. The result of this localised reduction in the depth of foundations coupled with a greater depth of unsuitable material was that the foundations were exposed for a short stretch to a depth of at least 600mm below their underside.
Crowley
was not provided with any setting out levels or any prescribed method statement covering the excavation exercise. The method of construction required the creation by excavation of a suitable and level cross-site surface of existing material onto which would be placed a sub-base comprising a 100mm layer of scalpings below a 50mm layer of sand onto which the herringbone block paving would be laid. The finished surface had to be laid to a cross-fall of 2.5 across the site and a natural but even gradient down the site. Thus, the minimum depth of excavation would be 215mm but, as already found, this depth would inevitably be deeper to allow for the topography of the site and deeper still to accommodate the poor quality of the existing ground. The base course was to be as level as possible but any localised additionally excavated areas would be filled in by additional localised back-filling using the scalpings when this sub-base layer was placed in position. The finished cross-fall gradient would be achieved by laying the scalpings and then the sand to the appropriate gradient and by the correct setting of the block paving slabs when laid.
taken
to be 215mm down from the inside edge of the adjacent pavement levels in Church Street. The excavation was undertaken using a mechanical excavator which moved
vertically
down the site from Queen's Road towards the flank wall of Stable Cottage at the bottom of the site. The excavation was therefore undertaken in strips with the first strip starting at the top outer edge at the junction with Queen's Road and moving down the site towards Stable Cottage. Each successive strip was excavated in turn and the strip closest to the flank wall was the last strip to be excavated.
taken
down to levels well below the underside of the concrete blocks and that these blocks formed an integral part of the flank wall foundations. By that time, the excavation had been completed.
Crowley
been informed that he should
take
particular care when excavating adjacent to the foundations, or had he been provided with the results of trial pits dug adjacent to the foundations, a different method of excavating in that area would have been called for which would have involved protective measures which
Rushmoor
would have had to have specified in advance.
Crowley
was entitled to proceed on the basis that it could adopt, without any prior investigation, whatever excavation measures it chose that were suitable for excavating a relatively small sloping urban site. The evidence suggests that
Crowley
carried out the excavation exercise with reasonable skill and care and that no over-excavation occurred. In other words,
Crowley
undertook no excavation in excess of what was required to conform to the topography of the site and the conditions on site and so as to provide an appropriate excavated surface which was at least 215mm deep or, if deeper, only deeper to the extent reasonably necessary to comply with the contract. Given the small area being excavated, the entire excavation exercise only took about four hours and it was started and completed during the morning of 4 July 2002.
Crowley
then placed the scalpings sub-base material onto this excavated surface. When the partial collapse occurred,
Crowley
had placed scalpings at
variable
depths between 100mm and 200mm so as to provide the minimum specified depth of scalpings and any additional localised depth needed to bring the excavated surface up to the level where 50mm of sand and the block paving could then be placed so as to align with the adjacent pavement edge to the specified gradient.
Crowley's
contractual obligations. I also find that the inevitable consequences of excavating in accordance with the contract obligations were that:
(1) The excavation of the existing site resulted in excavating across the site tovarying
depths below 215mm. At the edge of the site adjacent to the flank wall, these depths ranged between approximately 50mm and 300mm below that excavation depth of 215mm.
(2) This excavation inevitably exposed the foundations of the flank wall along its entire length and the excavation also inevitably extended below the underside of those foundations byvarying
depths ranging between approximately 130mm and 400mm below their underside save for the length below the redundant chimney flue where the excavation inevitably extended to a depth of up to approximately 600mm below their underside.
(3) The excavation as carried out byCrowley
was carried out with reasonable standards of workmanship, involved no over-excavation and, nonetheless, excavated, and could not have avoided excavating, to the depths below datum levels set out in (1) above which inevitably produced excavation depths below the concrete blocks that are set out in (2) above.
Crowley
and Mr Ward who described the setting out method that was used and the method of excavation that was adopted. No other evidence was adduced that suggested that this working method was applied inappropriately, that the standards of workmanship were other than reasonable or that the excavation went deeper than the reasonably practicable minimum depth at any point on the site. Furthermore, my findings are supported by evidence from the
various
witnesses' impressions of the finished excavation levels as seen on site on 4 and 5 July 2002. They are also supported by the evidence of the experts who, by interpolation from RJP's survey work, Mr
Vincent's
desk exercise and contemporaneous photographs reached conclusions that showed that the minimum excavated depths that could be achieved by
Crowley
were similar to the depths that
Crowley
actually achieved
(5) Course of the work
Crowley
visited
the site on a daily basis. The first phase of the work started on Friday 29 June 2002 when Mr Ward, the site foreman and Mr
Crowley's
other two employees, Mr Ansell, who operated the mini-excavator, and Mr Allright arrived on site. On 29 June 2002, the three men cut down and removed the existing shrubs and bushes to ground level, shredded that
vegetation
and removed it from the site and then removed the root stumps so far as possible. On Monday 1 July 2002 and Tuesday 2 July 2002, the coping stones on the dwarf walls, the paving slabs and the two bench seats were removed and the dwarf wall demolition was started. On Wednesday 3 July 2002, the dwarf wall demolition continued and was completed and the hardcore below the removed paving was broken up and removed. The excavation work, including the removal of the planter soil, was not started on Wednesday 3 July 2002. At one point in his oral evidence, Mr Ward suggested that he had telephoned Mr
Crowley
on Wednesday evening and during his call had referred to the exposed foundations of the flank wall. However, Mr
Crowley
had no recollection of such a discussion on the Wednesday and it is not possible for such a discussion to have
taken
place since no excavation work had been started by the time work stopped for the day.
very
rapidly and as soon as it had been completed, it was then obvious that the foundations and a significant layer below the foundations had been exposed. Mr Ward immediately asked Mr Ansell to telephone Mr
Crowley
to get him to come to site urgently. Mr
Crowley
arrived soon afterwards, rapidly took stock of the situation and then telephoned Mr Simpson and asked him to come to site urgently. Mr Simpson arrived soon afterwards by which time it was the early afternoon.
very
significant differences between the evidence of Mr
Crowley
and Mr Ward on the one hand and that of Mr Simpson on the other as to what Mr Simpson said to Mr
Crowley
and instructed him to do.
Crowley
or Mr Ward and his actions on 4 July 2002 were not those of someone who was concerned about the situation or who was trying to instigate urgent action to address a dangerous situation. I do not accept Mr Simpson's evidence as to his state of mind. Mr Simpson was and remained unaware of, or turned a blind eye to, the fact that the foundations, the flank wall and the whole of Number 80 had all been imperilled and undermined by the excavation that had just
taken
place.
Crowley
had over-excavated the site and that
Crowley
could have stopped, but had failed to stop, the excavation below a point 215mm below the surface of the site. Even in his oral evidence, he appeared to retain his misconception that the foundations were constructed to a normal depth for a load bearing flank wall and that it would have been possible for
Crowley
to have terminated the excavation only 215mm into the existing soil across the entire site.
Crowley
and gave him oral instructions as to how to proceed. Mr
Crowley
stated that the discussion started with him telling Mr Simpson that he was unhappy with the soft ground conditions and with the fact that the excavation had exposed the footings. Mr Simpson, however, appeared unconcerned with the situation. He assured Mr
Crowley
that "foundations are my forte" and that he had had twenty to twenty five years' experience of underpinning. Mr Simpson also told Mr
Crowley
that he was sure that underpinning was not required in the situation that had arisen and reiterated that he was able to speak with such confidence because of his long experience with underpinning that went back at least twenty five years. Mr
Crowley
contended that Mr Simpson then gave Mr
Crowley
instructions as to what was to be done. These were not conveyed with any sense of urgency. Remarkably, Mr Simpson never recorded these instructions in writing at the time or subsequently and no written instructions were ever issued to
Crowley.
The only written evidence produced by Mr Simpson of his instructions was to be found in a note that Mr Simpson left at Number 80 on leaving the site at the conclusion of this discussion.
Crowley's
evidence was that Mr Simpson instructed him to dig a trench 200mm deep parallel to, and 200mm away from, the flank wall. The trench was to run the entire length of the flank wall. A single skin brick wall was then to be built out of the trench to the height of the existing footings. At the same time, ordinary concrete was to be laid as a slab in the space between this trench and the existing footings of the flank wall foundations. Mr
Crowley
then informed Mr Simpson of his proposed timescale for this work. The trench would be dug on the following day, the necessary shuttering and concrete pour would
take
place on Sunday 7 July 2002 and the brick wall would be constructed on Monday 8 July 2002. Mr Simpson appeared to accept that proposed programme of work without any comment or disagreement. Mr
Crowley
explained in his evidence that he had been satisfied by Mr Simpson's re-assuring manner that his proposed method of supporting the foundations was an acceptable and appropriate way to address the apparent danger caused by the over-exposed foundations. Mr Ward, who said that he had listened to the whole of this exchange, confirmed Mr
Crowley's
evidence as to what Mr Simpson had stated and instructed.
Crowley's
evidence of the discussion. In particular he denied that he had referred to his extensive experience of underpinning or to underpinning being his forte. He attempted to reinforce this denial by stating that he had no idea, even when giving evidence, of what the word forte meant. Mr Simpson also denied that the instructions he had given to Mr
Crowley
were anything like the instructions Mr
Crowley
had stated that Mr Simpson had given him.
Crowley
that quick setting lean mix concrete should be placed underneath the exposed footings and up to their top. The concrete should be contained in steel shuttering. This should be placed one metre away from the flank wall along its entire length and the concrete should be placed in the gap between the shuttering and the external face of the footings. Once the concrete had set, a brick wall to a height of 500mm built with a double skin of ordinary house bricks should then be built against the outer face of the concrete.
Crowley
similar in terms to those that Mr
Crowley
had stated that he had received from Mr Simpson. This inconsistency was clearly demonstrated by the note that Mr Simpson left Mr Sampla immediately after his discussion with Mr
Crowley
on site on 4 July 2002 and by the instructions or statement that he must have given to
Rushmoor's
solicitor a few weeks later.
Crowley,
Mr Simpson went to call on the claimants but found that no-one was in. Mr Simpson then wrote out a note addressed to Mr Sampla and pushed it through the letter box of Number 80. The original note was not available to either
Rushmoor
or
Crowley
but its contents had been set out
verbatim
in the claimants' particulars of claim whose authenticity had been
verified
by Mr Sampla. In this pleading, it is stated that the note read as follows:
"Please ring me with reference to work at the side of your house. I would like to build a small retaining wall to cover your footings and would like your agreement to the finish."
This note appeared to be proposing the construction of a dwarf wall close to the flank wall. Such a wall would have required a trench to have been dug and this proposed method of construction would have been similar to that that Mr Simpson had just, according to Mr
Crowley,
instructed Mr
Crowley
to undertake.
Rushmoor's
solicitor, it is necessary to consider what that solicitor had stated in a response dated 14 November 2002 sent as a reply to the claimants' letter before action. The response, given its terms, could only have been based on instructions or a statement emanating from Mr Simpson. The solicitor's letter stated:
"Crowleys
were not instructed to continue to dig below the foundation. Instead they were immediately instructed to
take
remedial action by constructing a footing and retaining wall 500mm away from the building and backfill with mass concrete to the top of the existing footings."
Rushmoor'
solicitor was therefore suggesting that Mr Simpson had given Mr
Crowley
very
similar instructions to the instructions that Mr
Crowley
had stated he had received.
Crowley
and the instructions or statement that he must have given to
Rushmoor's
solicitor some five months later support and confirm Mr
Crowley's
version
of the instructions that he stated that he had been given by Mr Simpson. This is
very
significant since the remedial scheme that Mr
Crowley
stated that Mr Simpson had instructed on 4 July 2002 was considered by the experts to be both ineffective and one that enhanced the danger of collapse. However, the remedial scheme that Mr Simpson had stated at the trial that he had instructed Mr
Crowley
to provide was one that was
very
different to Mr
Crowley's
version
but was similar to the scheme that the experts in their evidence stated should have been adopted as a matter of urgency. It was, according to the experts, a scheme which could well have avoided the collapse if it had been put in place within twenty four hours of Mr Simpson's
visit
to the site.
very
significant inconsistencies between his contemporaneous behaviour and his subsequent evidence in court. Moreover, he could not explain how he came to write the note that he pushed through Mr Sampla's letter box in the terms that he used and he also stated, unconvincingly, that he could not remember giving instructions or a statement to
Rushmoor's
solicitor. Moreover, Mr Simpson could not explain how, six years after both writing the note and giving instructions, he had given such a significantly different account of his instructions to Mr
Crowley
in his witness statement and in his oral evidence. Finally, and particularly tellingly, Mr Simpson could not explain why he had not remonstrated with Mr
Crowley
immediately after the collapse, particularly when he met Mr
Crowley
on site the day after the partial collapse and inspected the damage and could see that Mr
Crowley
had departed so blatantly from the instructions that he contended that he had given him[4]. All these features of Mr Simpson's evidence suggest that Mr Simpson had given Mr
Crowley
the instructions that Mr
Crowley
has stated that he had received and that his evidence in court had been contrived in an attempt to exculpate himself.
Rushmoor,
sought to find support for Mr Simpson's evidence from Mr Ward's evidence and, at the same time, attempted to downplay the way that Mr Ward's evidence appeared to corroborate Mr
Crowley's
evidence. Mr Darling submitted that Mr Ward's evidence was wholly confused. Initially in his evidence, Mr Ward had stated that shuttering was instructed by Mr Simpson. He then, according to Mr Darling, changed his evidence when it was put to him in cross-examination that this evidence supported Mr Simpson's evidence, then only in witness statement form, and did not support and indeed undermined Mr
Crowley's
evidence, than also in witness statement form. Mr Ward then appeared, in what was suggested to be his changed evidence, to state that a trench was instructed into which concrete footings would be poured. Mr Darling submitted that Mr Ward's first
version
should be preferred and that the effect of that first
version
was that Mr Ward had heard Mr Simpson giving Mr
Crowley
instructions to backfill the ground adjacent to the flank wall with concrete and that he had not heard Mr Simpson instructing the construction of a dwarf wall or the digging of a trench. Mr Darling therefore relied on Mr Ward's evidence as providing powerful support for Mr Simpson's evidence of the instructions that he gave Mr
Crowley.
Crowley's
version
of the instructions that he had been given by Mr Simpson. Mr Ward's reference in his evidence to the use of shuttering is ambiguous and could,
taken
on its own, support either
version
of the instructions since both
versions
of the proposed supportive scheme would have required the use of shuttering.
Taken
as a whole, Mr Ward's evidence does not suggest at any stage that the nature of the instructed supportive scheme was as contended for by Mr Simpson and, indeed, his evidence suggests to the contrary, namely that these instructions were similar in content to the
version
contended for by Mr
Crowley.
Mr Ward's evidence, therefore, corroborates rather than undermines Mr
Crowley's
evidence as to Mr Simpson's instructions.
Crowley's
and Mr Ward's
version
of the instructions that Mr
Crowley
was given by Mr Simpson is correct. In making this finding, I have
taken
account of the context in which the instructions were given to Mr
Crowley.
Crowley
was, as I have already found, undertaking what both parties considered to be a small informal contract which only involved maintenance and cleansing work that had been devised by, and was entirely under the control of, Mr Simpson. Mr
Crowley
looked to Mr Simpson for all decisions, particularly those affecting the adjoining Number 80. He relied, as he was entitled to, on Mr Simpson's pre-contract site statement that it was safe to excavate up to the flank wall of Number 80. Moreover, he was keen to impress Mr Simpson and to show that he was able to work satisfactorily for
Rushmoor
since he wanted many more contracts from
Rushmoor.
He had also called Mr Simpson to site once the foundations had been exposed in order to obtain Mr Simpson's instructions as to how to proceed. For all these reasons, Mr
Crowley
had every incentive to do exactly what Mr Simpson instructed him to do and had no incentive to depart from any instructions he was given by Mr Simpson.
version
of what he instructed Mr
Crowley
to do is correct, Mr
Crowley
would have had to have deliberately and for no apparent reason immediately proceeded to disobey the instructions that Mr Simpson had just given him. Such a flagrant departure from those instructions could not have occurred by mistake and such deliberate misbehaviour would have been inexplicable, particularly given the factual background that I have just summarised and also given the real likelihood of this disobedience being discovered. Moreover, I prefer the evidence of Mr Simpson's contemporaneous thoughts as shown by the contents of his note to Mr Sampla and the instructions or statement that he must have given to
Rushmoor's
solicitor rather than his apparently
tailored
evidence provided six years later. These earlier thoughts and actions, coupled with Mr Ward's evidence, all corroborate Mr
Crowley's
evidence which is, moreover, inherently more probable than Mr Simpson's evidence. I therefore accept Mr
Crowley's
evidence and reject Mr Simpson's evidence.
Crowley
dug this trench in compliance with what Mr
Crowley
had understood to have been Mr Simpson's instructions. It rained
very
heavily throughout most of 5 July 2002 and this made the ground below the flank wall foundations
very
wet and, during the afternoon, earth was observed to be being washed out from under these foundations. Mr
Crowley
had intended to place the shuttering for the concrete work and to pour the concrete on Sunday 7 July 2002 and to arrange for a bricklayer to build the instructed brick dwarf wall on Monday 8 July 2002. However, during the evening of Friday 5 July 2002, cracks were seen to be
visibly
widening within Number 80 and, at about 22.00 hours, the back wall of the rear single-storey addition and part of the laundry room collapsed. The majority of the flank wall remained in place but could be seen to have significantly rotated.
Crowley
was informed during the morning of the following day, Saturday 6 July 2002, by telephone that the partial collapse had occurred. The call was made by someone unknown to him and, from the evidence of Mr Pettitt, it would seem that the caller was Mr Saker, who was
Rushmoor's
Chief Building Control Officer and who had assumed responsibility for putting in place arrangements to make Number 80 safe. Mr
Crowley
visited
the site and, from the road, saw what had happened. He felt so bad about the collapse that he did not attempt to contact the claimants who he had been informed by Mr Saker were unharmed. By the time he
visited
the site, contractors had already arrived and were demolishing much of Number 80 in order to make it safe for the claimants to remove such of their possessions as could be removed.
Crowley
was telephoned by Mr Simpson. According to Mr
Crowley,
Mr Simpson immediately asked him if he was aware of the problem and whether he had
visited
the site. Mr
Crowley
answered both questions affirmatively. Mr Simpson then asked whether he had spoken to anyone and Mr
Crowley
answered "no". Mr Simpson then told Mr
Crowley
that he was not to say anything to anybody at this stage. Mr
Crowley
informed him in reply: "I told you it needed underpinning" and, according to Mr
Crowley,
Mr Simpson replied: "I felt it wasn't needed." Mr Simpson asked Mr
Crowley
to meet him on site as soon as possible and they met and inspected the damage. Mr
Crowley
stated that Mr Simpson appeared shocked and did not communicate with him other than to say that Mr
Crowley
should not say anything at this stage. Mr Simpson accepted that he had made the telephone call to Mr
Crowley
and had met him on site but denied instructing Mr
Crowley
not to say anything at this stage on either occasion and also denied stating that he felt that underpinning was not needed.
visited
the site in the afternoon of 6 July 2002. He had not been involved in the work since his initial inspection in May. He inspected the damage but did not speak to anyone and was unable to recollect
taking
any further action or speaking to anyone about the partial collapse following that
visit.
visits
to site,
Rushmoor
does not appear to have made any further investigations into the partial collapse. On instructions, Mr Darling informed the court that
Rushmoor's
solicitor had made a careful inspection of all relevant internal documentation and full enquiries of all relevant officials. These confirmed that
Rushmoor
had made no internal investigations or report of the incident and had passed the whole incident and its consequences over to its insurers and the solicitors instructed by those insurers to deal with it. Mr Simpson did not refer to this incident again to Mr
Crowley.
He retired from
Rushmoor
in May 2003 when Hampshire County
Council
took over
Rushmoor's
highways maintenance work. Mr
Crowley
stated that he had, much more recently, received further work from
Rushmoor.
Crowley's
version
of his communications from and with Mr Simpson on Saturday 6 July 2002. Mr Simpson was not an impressive witness and he could not explain why, given his
version
of his instructions, his telephone call to Mr
Crowley
his
visit
to site
visit
when he met Mr
Crowley,
he had said nothing to Mr
Crowley
about
Crowley's
over-excavation nor, as I have already found, why he did not remonstrate with him about his disobedience in relation to the implementation of his instructions for implementing supportive measures. I am satisfied that Mr Simpson's comment about underpinning and his insistence that Mr
Crowley
should not say anything to anyone amounted, in context, to admissions that he considered himself to have been responsible for the partial collapse and for the decision not to underpin the foundations on 4 July 2002 and, instead, to dig the shallow trench in preparation for the construction of a dwarf wall. This conclusion is reinforced by
Rushmoor's
subsequent failure to
take
any steps even to report the incident to any committee of the
Council.
It is particularly telling that
Rushmoor
appears to have
taken
no further steps internally to investigate the collapse and did not communicate in any way with Mr
Crowley
about it. This also suggests that
Rushmoor
internally accepted that it was responsible, or primarily responsible, for the partial collapse.
D. Issue 2: Expert Evidence
(1) Pre-contract survey and documents
taken
up to that flank wall. The site itself was sloping in two directions, down from the flank wall and down from front to rear and it was also steeply stepped with a filled planter located on the upper step which was built up to and against the flank wall. The planter itself, given its height and the fact that it ran along the entire length of the flank wall, was obviously constructed so as to provide significant support to the flank wall and its foundations. A house had previously occupied the amenity site and this missing house had clearly been built so as to abut Number 80. A cursory inspection of the exposed flank wall of Number 80 would have shown that this exposed flank wall had been built as an internal party wall and not as an external structural wall. This was particularly evident given the existence of a redundant chimney flue running up the flank wall from what must have been the fireplace of the demolished property.
very
significantly shallower than this depth and were likely to be exposed by the proposed excavation.
taken
individually or, more significantly,
taken
together, pointed to the need for Mr Simpson to have arranged for two, or probably three, trial pits to be dug at the front, middle and rear portions of the flank wall so as to ascertain the depth, nature and condition of the foundations, the relationship between the bottom of the proposed excavation and the underside of those foundations and the nature of the underlying subsoil. These trial pits would also have identified how and to what extent the planter provided structural support to the flank wall.
Rushmoor
should have undertaken the trial pit and surveying exercises and have included the results of both in the documentation incorporated into the contract. Furthermore, these exercises would have shown that the foundations of the flank wall were particularly shallow, that the concrete blocks were subsequent additions and had been constructed in a way that provided only minimal additional support for the flank wall, that the site once excavated would leave the entire depth of foundations exposed with a further depth of up to 200mm being exposed as well, that below the chimney flue the foundations were particularly shallow and would be exposed to an even greater extent than the other lengths of the flank wall and that the planter was constructed so as to provide significant structural support to the flank wall and its foundations.
Rushmoor
should have designed additional permanent support for the flank wall that should have been installed before the planter had been removed. This support should have been in the form of a concrete slab placed against the flank wall that extended away from the wall horizontally for about one metre and extended upwards to a point immediately above the top of the exposed foundations. Alternatively, the work should have been designed so as to leave an unexcavated buffer zone of about one metre in width extending horizontally outwards from the flank wall. The contract specification should have specified how the wall's supporting and protective measures should be constructed and how the excavation should have been undertaken. Any supporting concrete should have been placed in position as the first piece of work and should have been placed in a series of small sections. Once this work had been completed, the planter should then have been removed and the site should then have been excavated in a sequence and by the use of a method which caused minimum disturbance to the concrete foundations and flank wall. All these measures should have been specified in advance of work starting and should have been included in contract documents. The notification procedures required by the Party Wall Party Wall Act should also have been followed.
(2) Excavation
Crowley
should have ceased excavating when the top of the concrete foundations was reached. The third expert considered that the cessation of excavation should have occurred when
Crowley
reached the underside of the concrete blocks.
Crowley
should then have determined the depth of concrete by carefully undertaking one or two small investigative excavations. On finding that the concrete foundation was shallower than the intended depth of excavation,
Crowley
should have stopped work and obtained further instructions from
Rushmoor.
Crowley
should have stopped work has no practical significance.
Crowley
undertook the last strip of excavation, being the strip nearest to the foundations, as the last element of the excavation exercise. The foundations had not been uncovered until that strip was started and the entire strip could only have
taken
a matter of minutes to carry out. Thus,
Crowley
could not reasonably have ascertained that the excavation was uncovering either the top or the underside of the concrete foundations let alone a significant additional depth below the foundations until it had completed, or
virtually
completed, the entire excavation exercise.
(3) Emergency Action
taken
by
Crowley
in digging a trench alongside and close to the flank wall had had the effect of further undermining the foundations. Moreover, they were
very
critical of the lack of urgency and the proposed postponement of any concreting work until Sunday 7 July 2002. The experts also considered that the supportive scheme being implemented by
Crowley
would have had much less chance of preventing the collapse than the scheme that they recommended should have been implemented, even if the concrete had been put in place on 4 or 5 July 2002. I conclude that, on the balance of probabilities, Mr Simpson's proposed method of supporting the flank wall, even if the concrete had been put in place by the end of the working day on 5 July 2002, would not have avoided the partial collapse that occurred.
(4) Cause of partial collapse
virtue
of the support provided to the sides and the base of the foundations. If the side support is excavated and removed, the stability of the foundations is considerably reduced. The soil, particularly towards the rear of Number 80, was sandy and relatively non-cohesive in nature. This further reduced the stability of the foundations once their side support had been removed. Once the foundations had been exposed, such cohesion as the soil retained would have been rapidly lost. The sandier the soil, the more rapid would have been this loss of cohesion. The collapse therefore occurred because the foundations were shallow at the best of times but the reduced support that they provided was largely removed by the removal of the planter and the subsequent excavation of the underlying soil and it totally disappeared along the section of the flank wall that collapsed when the adjacent soil rapidly lost its remaining cohesion given that the underlying soil was sandy at that point.
E. Issue 3:
Crowley
and
Rushmoor's
Breaches of Duty
(1) Introduction
Crowley
and
Rushmoor
to the claimants and the causes of the claimants' damage. Based on those findings, it is finally necessary to ascertain what can justly and equitably be considered to be the respective responsibilities of
Crowley
and
Rushmoor
for that damage expressed in percentage or arithmetical terms.
(2) Party Wall etc Act 1996.
Rushmoor's
adjoining amenity site, the Party Wall Act was engaged for two separate but interlinked reasons. The first reason for the Party Wall Act to be engaged was because:
"… a building owner [i.e.Rushmoor
as "an owner of land desirous of exercising rights under this Party Wall Act"] proposes to excavate .. within three metres measured horizontally from … a building [Number 80] of an adjoining owner [Mr Sampla] and [a] …part of the proposed excavation will within those three metres extend to a lower level than the level of the bottom of the foundations of [Number 80]." (see sections 6(1)(a) and 6(1)(b) and the definition of "building owner" in section 20 of the Party Wall Act).
virtue
of the definition of "foundation" in section 20 which provides that the foundations of the flank wall include:
"… the artificially formed support resting on solid ground on which the wall rests".
Rushmoor's
decision to demolish the planter and replace it with paving engaged the Party Wall Act because:
"… lands of different owners adjoin and at the line of junction the said lands are built on or a boundary wall, being … the external wall of a building, has been erected." (sections 2(1) and 2(k) of the Party Wall Act).
Rushmoor
proposed to demolish the planter foundations and pave the site in its ownership and because that work necessitated excavating within three metres of the flank wall of Number 80 to levels below the flank wall's foundations. The Party Wall Act required
Rushmoor
to serve on Mr Sampla a notice indicating its proposals and stating how it was proposing to underpin, strengthen or safeguard the foundations of the flank wall with accompanying plans and sections showing the site and depth of excavation (see sections 2(1), 3 and 6(5) of the Party Wall Act). Any dispute as to these proposals had to be settled by the arbitration provisions of the Party Wall Act by a surveyor or surveyors appointed by the two adjoining owners. These provisions of the Party Wall Act are mandatory and it is no answer to the non-service of the requisite notice that it was not appreciated or foreseen that the Party Wall Act would be engaged.
Rushmoor
if that failure arose from a lack of due care. If that negligent omission caused Mr Sampla foreseeable damage which would have been avoided had the provisions of the Party Wall Act been complied with,
Rushmoor
would then be liable in damages for negligence.
Rushmoor
that the Party Wall Act provided no basis for a court to award the claimants damages and, equally, no basis for a court to apportion liability between two parties that had each caused a third party actionable damage. He cited an unreported decision of Mr Recorder Mawhinney from the Truro County Court, Hough and Hough
v
Annear and Annear, claim number 4TRO2636, 1 November 2007, in support of these submissions. In that case, the claimants were seeking damages for breach of statutory duty from the defendants. The claim was based on negligently performed work on a party wall where the particular work in question had not been covered by a party wall award. The claim was based on, and quantified by reference to, the claimed diminution in
value
of the property arising from the fact that the work in question was not covered by a party wall award and might have damaged, or might in the future give rise to damage to, the claimants' property. The Recorder held that the loss in question was not established and, even if it had been established, could not have been the subject of a compensation award by the surveyors had they been appointed under the Party Wall Act to resolve the dispute arising from that complaint.
(3)Rushmoor's
liability to the claimants
Negligence
Rushmoor
were liable to the claimants in a number of specific and cumulative ways. These may be summarised as follows.
Rushmoor
personnel involved in
Rushmoor's
initial decision-making relating to the work, Mr Pettitt, Mr Millington and Mr Simpson, all proceeded as if they were concerned solely with a small, short-term street cleansing operation. They gave no thought to the possible impact of the work on Number 80 which adjoined the amenity area, they failed to appreciate that the work involved significant demolition and excavation work that would imperil Number 80 and its shallow flank wall foundations and they gave no thought to the welfare or safety of the adjoining occupants or to the fact that
Rushmoor
was an adjoining owner that had a continuing duty to maintain the adjoining owner's right to an easement of support and an absolute duty to comply with the Party Wall Act.
Rushmoor's
ownership without first
taking
advice from those who had relevant expertise of buildings, building structures, building foundations, building surveying and the relevant legislation and legal principles.
take
and were necessitated by matters which a competent
engineer
or building surveyor or other professional concerned with the detailing of paving work adjacent to an exposed flank wall on the junction of and adjacent to the proposed works should have been aware of. These matters were:
(1) The flank wall had obviously been constructed as a party wall and had also obviously been the internal dividing wall of Number 80 and its adjacent house that had obviously been built originally on thevacant
site but which had previously been demolished. These details were obvious from an examination of the site and the external face of the flank wall and from an examination of the conveyance which showed that the amenity site had previously been the site of Number 82 which must have been a house adjoining Number 80. Mr Simpson had been instructed by Mr Pettit to check that
Rushmoor
owned the amenity site[5] and a copy of the conveyance was held by
Rushmoor
and would have been readily available to him. He failed to undertake, or to have had undertaken, an appropriate inspection of the site and flank wall and he also failed to inspect, or have inspected, any copy of the conveyance that was, and would have been expected to have been, in
Rushmoor's
possession.
(2) The foundations of the flank wall would have been known to have been appreciably shallower than those of an external flank wall and would also be known to lie close to the external adjoining surface. The expert evidence showed that these facts were known to any competent building surveyor since they were common features of the construction of terraced houses of the type and age of those in Queen's Road, namely those constructed of brick in the nineteenth and early twentieth centuries. It should therefore have been appreciated that the proposed excavation adjacent to the flank wall, being to a depth of 215mm, would be likely to expose or even to completely uncover these foundations.
(3) The site was sloping to an appreciable extent in two directions, away from the flank wall and down the site away from Queen's Road.
(4) The amenity area was appreciably stepped between the planter and the open part of the area.
(5) The planter soil was of unknown depth but obviously extended to, and possibly below, the bottom of the planter structure. The planter had an appearance, structure and location such that it was obviously providing structural support to the flank wall foundations, particularly given that these were shallow and in need of additional lateral structural support .
(6) The planter soil was not, or was not obviously, placed on a paved surface but was, or should have been anticipated to have been, placed on the original soil. This soil, and hence the interface between the planter soil and the original material, could be anticipated to consist of disturbed or soft material to depths appreciably below the 215mm proposed excavation depth. This interface soil which would have to be excavated to provide an appropriate surface on which the sub-base could be laid.
(7) Setting out the site would be difficult unless finished surface excavation levels were provided across the site. These would also be desirable to assist in avoiding over-excavation across the site.
(8) Special excavation measures would be required to protect and support the flank wall and the flank wall foundations during and following the removal of the planter and the excavation of the adjacent material.
These considerations and measures would have identified the need to
take
special excavation measures to protect, and to provide additional permanent structural support for, the flank wall and the flank wall foundations.
take
place below the foundations or that the Party Wall Act was not engaged by the proposed work. A building owner who is an adjoining owner, which
Rushmoor
clearly was in relation to these works, has a strict duty to serve appropriate notices and to
take
all other prescribed steps set out in the Party Wall Act, even if he considers that the proposed work does not engage that Act. In this case, the Party Wall Act was obviously engaged in any event. Had the statutory procedure been followed, the necessary supporting documentation could and would only have been prepared after trial pits had been dug and inspected and a site levels survey had been undertaken. These measures would have identified the need to
take
special excavation temporary measures to protect the flank wall and the flank wall foundations and the further need to provide additional permanent structural support for the flank wall and the flank wall foundations.
Rushmoor
were inappropriate and insufficient. In particular, no specification or drawings were provided that identified as contractual requirements what
Crowley
was to do and how it was to do it in relation to all these matters:
(1) The excavation method, in the form of a method statement, that was to be used;
(2) The required finished excavation levels across the entire site that were to be achieved;
(3) The precise nature, quality and type of the finished excavated surface that was to be provided for the sub-base material;
(4) The temporary and permanent protective measures that were to be provided.
Crowley
to
take
as a matter of extreme urgency appropriate supportive measures that would provide temporary and then permanent support to the flank wall and the flank wall foundations. Instead, he instructed
Crowley
to
take,
without any urgency, dangerously inappropriate measures which exacerbated the undermining of the flank wall foundations and further endangered them. Furthermore, he failed to provide
Crowley
with full and clear instructions since he only gave
verbal
instructions which were capable of being misinterpreted and he failed to confirm these instructions with an appropriate written method statement and drawings or sketches that clearly identified the proposed supportive measures. He also failed to inspect, or to arrange for the inspection of,
Crowley's
implementation of the supportive measures that he had instructed so as to ensure that these were being correctly and rapidly implemented.
take
informed advice as to what should be done as soon as he saw the dangerously exposed foundations. This step was required given his inexperience in, and lack of knowledge of, building structures, foundations, underpinning and associated matters. He also failed to display any urgency in ensuring that appropriate supportive measures were urgently
taken
and failed to appreciate that the problem had not been caused by
Crowley's
poor workmanship or culpable over-excavation but had instead been caused by the difficult topography of the site, the removal of the planter, the unusually shallow flank wall foundations and
Rushmoor's
failure to detail the work in an appropriate and safe manner.
Nuisance, withdrawal of support, interference with the Claimants' easement of support
Rushmoor
had supplied the flank wall and flank wall foundations of the adjacent structure of Number with an easement of support in or before 1979 when it acquired the site of Number 82 and then constructed the planter structure and the foundation's concrete blocks. This easement and its associated rights had been acquired by prescription since the planter and blocks had been constructed at least twenty three years previously. Moreover, the claimants' right of support was infringed and an actionable nuisance was created by the undermining of that support and by
Rushmoor's
negligent acts and omissions. These liabilities can, or arguably can, arise without negligence being established but in this case it is immaterial whether or not liability is strict since these liabilities arose as a result of
Rushmoor's
various
negligent acts and omissions. .
Breach of statutory duty
Rushmoor's
statutory duty that it owed to the claimants. This failure was one for which the claimants were entitled to compensation for and which also gave rise to an entitlement to recover damages quantified by reference to the appropriate level of that compensation awarded under the Party Wall Act[6].
(4)Crowley's
liability to the claimants
Negligence
Rushmoor
it was contended that
Crowley
should have undertaken a pre-contract survey of the site and should have first dug trial pits to ascertain the nature, depth and possible disturbance of the flank wall foundations. It was also contended that
Crowley
culpably over-excavated the site, failed to adopt a safe method of excavation which did not undermine the foundations, failed to stop excavation work as soon as it became obvious that at least part of the flank wall foundations were being exposed and failed strictly and speedily to comply with and implement the instructions that Mr Simpson said that he gave Mr
Crowley
and instead implemented the instructions that Mr
Crowley
said he had received. It was also contended that even if Mr
Crowley
had in fact received the instructions that he said he had received, he should not have implemented them.
Crowley
had no contractual duty to check the site, particularly after it had been given a contractual assurance by Mr Simpson that it was safe to excavate up to the foundations without
taking
any special measures.
Crowley
had no duty to dig trial pits and was entitled to adopt the excavation method that it did, being an excavation method that the experts considered to be satisfactory.
Crowley
stopped work as soon as it first became apparent that the foundations were being fully exposed.
Crowley
did not over-excavate the site given the topography of the site, the poor condition of the top soil, the stepped nature of the site, the existence of the planter and its contents on the site and the shallow adjacent foundations. Finally,
Crowley
was faithfully following the
verbal
instructions that it had been given by Mr Simpson after the collapse had occurred and within the timescales that he had approved.
taken
a maximum of about three hours to complete and the final strip could not have
taken
more than about an hour to complete. Until the final strip had been started, no part of the foundations would have been exposed. Once the exposure of the foundations started, it is unlikely that it was obvious to
Crowley
that they were being exposed. However, this should have become clear to the operatives by the time the excavation had reached approximately the mid-point in the flank wall.
Crowley
could and should have stopped the excavation at that point. Had it done so, it is possible that the particularly
vulnerable
part of the flank wall in the middle and towards the bottom of the site where the partial collapse occurred would have retained sufficient protection that Number 80 would have been saved from the partial collapse that occurred.
Crowley
to excavate a narrow strip 200mm from the side of the flank wall,
Crowley
should nonetheless have desisted from
taking
that step and should instead have insisted that Mr Simpson obtained further professional advice from
Rushmoor
and that Number 80 be evacuated in the meantime. This is because the danger of collapse was so obvious and immediate that any further excavation would obviously further endanger
Crowley's
operatives and the occupants of Number 80. Had any of those persons been injured by a collapse of Number 80 and then claimed damages from
Crowley,
it would have been no defence to such a claim for
Crowley
to contend that it had a contractual duty to comply with Mr Simpson's instructions, even though that contention would have been correct.
Crowley's
duty to preserve the safety of neighbours and workmen and the structural stability of adjoining structures overrode any contractual duty it owed to
Rushmoor.
It should not have
taken
any measures which endangered safety or structural stability in a situation where it was clear that the relevant measures would cause or enhance that danger.
Crowley,
as a competent contractor, that he would be exacerbating and not removing the existing danger of collapse if the operatives complied with Mr Simpson's instructions. This inference is confirmed by Mr
Crowley
who stated in evidence that he regarded the exposed foundations as constituting an obvious and
visible
danger and that he was
very
worried about the instructed excavation for the dwarf wall footings. Mr
Crowley
also stated that he only continued with these instructions because, despite his reservations, he did not feel as an inexperienced contractor that he could go behind or disobey the instructions that he had been given. In the extreme situation in which he found himself, however, these considerations did not justify his following Mr Simpson's instructions.
Other liability
Crowley,
as an independent contractor, was strictly liable to Mr Sampla for the withdrawal of support from the foundations of Number 80 and with the interference with his easement of support and, given its negligence, was also liable in nuisance for that withdrawal.
F. Issue 4: The Causative Breaches of Contract or Duty
Rushmoor,
that it had not caused any damage because the damage that occurred had resulted from the over-excavation of the site by
Crowley
and its subsequent negligent excavation of the trench. Any failure by
Rushmoor,
whether of design or supervision, was not causative of the collapse or of the damage suffered by the claimants.
Rushmoor
to avoid responsibility or liability for the partial collapse in this way. Had the negligent failure to dig trial holes or comply with the Party Wall Act or to specify appropriate excavation methods or to design appropriate temporary and permanent supportive measures not occurred and had Mr Simpson then properly supervised the work and given appropriate instructions to avoid the danger of imminent collapse that
Rushmoor's
preceding negligence had created, the partial collapse would not have occurred. There was an interlinked series of negligent acts and omissions which operated together to cause the damage. It is neither possible nor correct to separate out any of these acts and omissions nor to contend that only one isolated act or omission caused the collapse. All the negligent acts and omissions that occurred,
taken
together, jointly caused or contributed to the partial collapse.
G. Issue 5:Rushmoor's
Contribution Liability
Rushmoor
was principally responsible for the collapse. The apportionment of responsibility is to be decided by applying the provisions of section 2(1) of the CLCA. I must determine what proportion of
Crowley's
liability to the claimants it is just and equitable to order
Rushmoor
to fund having regard to the extent of
Rushmoor's
responsibility for the damage in question. In deciding this question, I must have regard to
Rushmoor's
culpability and causative responsibility for the damage.
Rushmoor's
total disregard of its obligations under the Party Wall Act and the party wall regime created by the Party Wall Act, by its total failure to appreciate the destabilising effect that the removal of the planter and the unavoidable exposure of the foundations would have on the stability of the foundations of Number 80, by the negligent initial design of the work, by Mr Simpson's failure to supervise the work and by his dangerously ignorant design of the necessary supportive works. On that basis, I find that it is just and equitable that
Rushmoor
should shoulder four-fifths or eighty percent of
Crowley's
current liability to pay damages and costs to the claimants under the terms of the compromise agreement given that
Rushmoor
was overwhelmingly culpable for that damage and its acts and omissions were the major and predominant cause of the claimants' damage.
Rushmoor
of its obligations under the Party Wall Act and in relation to the statutory party wall regime could not provide a basis for assessing
Rushmoor's
contribution liability under the CCLA. However, section 7(2) of the Party Wall Act requires the offending building owner to pay compensation for, and also permits the surveyor or surveyors appointed under the Party Wall Act to resolve disputes and to award compensation for, any loss or damage which might result from any work executed in pursuance of the Party Wall Act. Such compensation would cover the entirety of the damage founding the claimants' claims. Section 6(1) of the CCLA allows contribution to be apportioned between
Crowley
and
Rushmoor
where the damage in question would have allowed the claimants to recover
"… compensation from [Rushmoor]
in respect of that damage (whatever the legal basis of his liability, whether tort, breach of contract, breach of duty or otherwise)."
Clearly, therefore, both the CCLA and the Party Wall Act cover liability to pay compensation under the Party Wall Act and that liability to pay compensation can form a basis of assessing contribution under the CCLA.
Rushmoor
should fund 80% of the claimants' overall recovery since its other breaches of duty were such that it was overwhelmingly culpable for and the overwhelming cause of the damage. On that basis, it would still be just and equitable that Rushmore should shoulder four-fifths of the damage.
(1) The failure to carry out investigations, and in particular to arrange for the digging of trial pits, so as to identify the depth of the flank wall foundations, the nature of the underlying topsoil and the nature of the support provided to the flank wall by the planter, foundations and topsoil;
(2) The failure to operate the relevant provisions of the Party Wall Act;
(3) The failure to replace the support for the foundations that would occur as a result of the removal of the planter and the inevitable exposure of unduly shallow foundations by the excavation exercise;
(4) The failure to properly design and detail the work and to prepare proper contract documents and designs for the work;
(5) The failure to stop excavation work before the foundations were fatally undermined; and
(6) The failure to design and then urgently to implement the necessary supportive measures to save Number 80 from partial collapse once the dangerous undermining of the foundations first became apparent followed by the negligent implementation of inappropriate measures.
Rushmoor
can be seen to have been responsible for all six operative causes of the damage, or all five operative causes if
Rushmoor's
breaches of its obligations owed to the claimants imposed by the Party Wall Act must be disregarded.
Crowley
was jointly and equally responsible for only the last two of these causes. Each of these causes can be seen to have contributed equally to the damage. Therefore,
Rushmoor
can be seen to have been solely responsible for three or four of these six equal causes and to have been jointly and equally responsible with
Crowley
for the other two causes. On this basis, it would be both just and equitable to apportion contribution for the damage between
Rushmoor
and
Crowley
on an 80:20 split in percentage terms which, expressed in arithmetical terms, is a four-fifths:one-fifth split. This 80% responsibility can be explained because
Rushmoor
is fully responsible for three or four of the causes (60% of the damage) and half responsible for two of the causes (20% of the damage) and
Crowley
is half responsible for two of the causes (20% of the damage). This approach confirms my overall assessment that has been arrived at on a global basis.
E. Overall Conclusion
Rushmoor
is responsible for and must reimburse
Crowley:
(1) 80% of the settlement sum of £384,500 paid or payable byCrowley
to the claimants;
(2) 80% of any interest paid or payable on this sum byCrowley
to the claimants; and
(3) 80% of the costs that the claimants are entitled to recover fromCrowley
under the terms of the settlement.
(4)Rushmoor
should also pay interest to
Crowley
on 80% of any sum that
Crowley
has paid to the claimants from the date or dates of
Crowley's
payment or payments to the claimants until judgment in these contribution proceedings.
Rushmoor's
claim for a declaration fails.
HH Judge Anthony Thornton QC
Technology and Construction Court
Note 1 Scaled off a copy of the plan attached to the conveyance (page 329 of the trial bundles).
[Back] Note 2 Paragraph 5 of the witness statement of Mr Pettit, Note 3 This is obvious from the wording of the conveyance which describes the land as “that piece or parcel of land being the site of the dwellinghouse and premises known as number 82 Queens Road”. [Back] Note 4 See, further, paragraphs 76 – 82 below. [Back] Note 5 See paragraph 17 above. [Back] Note 6 See paragraphs 96 - 107 and 112 above and 131 below. [Back]
Rushmoor’s then Head of Highways and Transport Services.
[Back]