Angela Mcmanus And Robert Mcmanus Against (first) City Link Development Company Limited; (second) Scott Wilson Scotland Limited; And (third) Lanarkshire Housing Association Limited
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2015] CSOH 178 |
| Court | Court of Session |
| Published date | 22 December 2015 |
| Year | 2015 |
| Docket Number | A116/13 |
| Date | 22 December 2015 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 178
A116/13
OPINION OF LORD JONES
In the cause
ANGELA McMANUS AND ROBERT McMANUS
Pursuers;
against
(FIRST) CITY LINK DEVELOPMENT COMPANY LIMITED;
(SECOND) SCOTT WILSON SCOTLAND LIMITED; AND
(THIRD) LANARKSHIRE HOUSING ASSOCIATION LIMITED
Defenders:
Pursuers: Hajducki QC, Sutherland; Morton Fraser LLP
First Defenders: Dunlop QC, Turner; Pinsent Masons LLP
Second Defenders Duncan QC, Reid; CMS Cameron McKenna LLP
Third Defenders: Keen QC, Brain; Brodies LLP
22 December 2015
[1] This action concerns a development site at Watling Street in Motherwell, to which I shall refer as “Watling Street” or “the site”. At the heart of the pursuers’ case is an allegation that, as the result of uses made of the site before it was developed for housing, it was contaminated with chemicals harmful to health, which remained present on the site during and after development. The first defenders were the developers. The pursuers aver that the second defenders were the environmental consultants on the development project, but that is denied by the second defenders. It is averred that, for a time, the pursuers lived at two addresses at Watling Street, as tenants of the third defenders and that, during that time, they inhaled vapours given off by these harmful chemicals, they became ill, and they have suffered loss. Both houses were built on a part of the site which was designated “Plot A”.
[2] The pursuers plead a common law case of fault against each of the first and second defenders. They aver, also, that the first defenders and, separately, the second defenders breached the provisions of section 33(1)(a) of the Environmental Protection Act 1990, and they seek damages against them in terms of section 73(6) of that Act. The pursuers claim that the third defenders breached an implied term of their tenancy agreement, and were later in breach of certain provisions of the Housing (Scotland) Act 2001. Each of the defenders pleads that the pursuers’ averments are irrelevant and that the action is barred by the passage of time, in terms of section 17 of the Prescription and Limitation (Scotland) Act 1973.
[3] At a case management hearing held on 18 November 2014, the action was sent to the procedure roll for discussion of the defenders’ pleas-in-law. Each of the defenders undertook not to take specification points but, in the event, that undertaking was not adhered to by the first and second defenders. The case came before the court on 24, 25 and 26 March 2015 for a hearing, when each of the defenders sought dismissal of the action insofar as it was directed against them. The closed record extends to 92 pages of text. The defenders’ challenge to the relevancy of the pursuers’ averments was correspondingly lengthy.
The pursuers’ common law case against the first and second defenders
Background
[4] The pursuers aver that, in or about October 1984 and in or about March 1988, the local planning authority granted outline planning consent to the Scottish Development Agency (“SDA”) in respect of the proposed residential development of the site. The site planning brief stated that, as the site had been in continuous industrial use for some 40 years, the soil conditions must be considered suspect. It was a condition of the consent that, prior to the submission of an application in respect of reserved matters, the applicant was to carry out a detailed investigation of the soil conditions prevailing over the entire site, in order to establish the nature, concentration and distribution of any contaminants which may be located within it. The planning authority would not entertain any application in respect of reserved matters, unless it was accompanied by and took account of the report of that investigation, to the authority’s satisfaction. (Article 3 of the condescendence)
[5] The first mention made by the pursuers of the first defenders’ involvement with the Watling Street development is that: “Notwithstanding that the site was owned by the SDA and its successors, development of the site for the purpose of residential housing” was undertaken by the first defenders. In or about February 1990 the second defenders offered to carry out “the design of infrastructure works” associated with the proposed development and, during the following month, the second defenders quoted for design work “associated with (the) investigation of the ground at the site for contamination.” The pursuers aver that the second defenders acted throughout as “environmental consultants”. (Pages 62B-C and 72D-E of the closed record) In May 1990, the second defenders wrote to the first defenders “with a proposal for procurement of additional geotechnical data”. The proposal included carrying out a preliminary contamination survey. In or about July 1990, the second defenders were instructed by the SDA to carry out a study of ground contamination at the site. There then follow averments concerning the second defenders’ participation in a process of ascertaining the nature and extent of any contamination. That process involved the Department of the Regional Chemist, but it is not averred that the first defenders had any part to play. With reference to the first defenders’ answers, the pursuers admit that remediation works that were carried out on the site were commissioned and paid for by the Lanarkshire Development Agency (“LDA”), which is averred to have been the SDA’s statutory successors. The pursuers aver that the SDA “initially commissioned the investigation of the site.” (Articles 3 and 4 of the condescendence)
[6] By about April 1991, the first defenders were proposing to develop the site and had submitted a planning application. They had seen copies of a report by the second defenders, dated January 1991 (“the January 1991 report”). As a result of having seen that report, “they knew or ought to have known of the limited investigation for contamination which had been undertaken at the site.” Further testing was carried out in or about February 1992. It is not averred that the first defenders had any involvement either by way of instruction or participation in such tests. The pursuers do, however, aver that what is described as a “method statement” was sent to the first defenders by the second defenders in or about July 1991, which “emphasised that the preliminary study carried out by themselves and the Department of the Regional Chemist was preliminary in nature and was carried out on a very wide grid spacing.” (Article 6)
[7] In or about May 1992, the second defenders produced a report summarising the findings of their contamination studies and associated development costs (“the May 1992 report”). A copy of that report was provided to the first defenders. Consequently, say the pursuers, the first defenders knew that the investigation of the site for contamination had not complied with the recommendations of the regional chemist. The May 1992 report contained recommendations for the remediation of the site, identifying three options. At paragraph 4.13 the view is expressed that the choice of option depended on the value of the land to the developers, the first defenders, and that commercial decisions were best made by the developers. In or about August 1992, the first and second defenders agreed that the only solution which permitted the whole of the 27 acre site to be developed for residential housing was the first of three options. The first defenders wrote to the LDA on 15 October 1992 and said that the LDA “should now undertake decontamination of this site in accordance with option 1” of the May 1992 report. In the event, option 1 was not proceeded with. A more limited scheme of remediation of the site was chosen “due to the expense of option 1.” The pursuers do not aver, in terms, that the first defenders played any part in the decision to adopt an alternative to option 1. They aver that they “reasonably believe” that the first defenders would have been told of the decision either by the second defenders, or the LDA. The pursuers also “reasonably believe” that the first defenders agreed to the proposal that a more limited scheme of remediation work should be adopted. It is not said that such knowledge gave rise to any fault on the part of the first defenders.
[8] By January 1993, the second defenders had been “commissioned to administer and supervise the remediation works.” At or about the same time, the first defenders entered into an agreement with Scottish Enterprise, whereby the former would develop the whole of the site for residential use. By about June 1993, remediation work had been carried out on 18 acres of the site, and the first defenders and the LDA entered into discussions about the remaining nine acres. In or about October 1993 the second defenders submitted an application (to whom they do not say) for the removal of contaminated material from the site and for it to be deposited on six acres of adjacent land. The pursuers admit an averment by the first defenders that the SDA and the LDA commissioned a report from the second defenders “to address the question of contamination on the site”. That report is not identified by reference to its date. (Article 7)
[9] Remediation works were undertaken at Watling Street in or about the first quarter of 1993 and the first quarter of 1994. Included in these works was the levelling of made ground and the formation of a bund using made ground, in order to screen a large electricity substation from the new housing development. (Page 43D-E) The pursuers admit an averment by the first defenders that these remediation works were to remove ash and slag deposits, as determined by visual inspection. The pursuers do not know and do not admit an averment by the first defenders that these works were undertaken on the instruction of LDA, but it is clear from that that the pursuers do not suggest that they were undertaken on the instruction of the first...
To continue reading
Request your trial
-
Ramesh Dewan Against The Fife Council
...respect of the storage of waste materials: see para 216 in the opinion of Lord Jones in McManus v City Link Development Company Limited [2015] CSOH 178. Secondly, the pursuer’s case was predicated only on the ground of the defenders knowingly permitting controlled waste to be deposited. Dat......
-
Glasgow City Council Against First Glasgow (no.1) Ltd
...with nothing reportable to the DVLA, it could not be said that they should have foreseen he was unfit to drive (McManus v City Link [2015] CSOH 178 at [73], Farraj v King's Healthcare NHS Trust [2010] 1 WLR 2139) . The defender did n ot actually foresee that: in his exit interview he was de......
-
Reclaiming Motion By Caroline Cowan Against Lanarkshire Housing Association Limited
...cases, including duties alleged to have existed under the Environmental Protection Act 1990. [7] On 22 December 2015, in an Opinion ([2015] CSOH 178) subsequently described as “lengthy and detailed”, the common law case against City Link was dismissed on the basis that they owed no non-dele......
-
Angela Mcmanus And Robert Mcmanus Against Scott Wilson Scotland Limited
...However, the Council was assoilzied on 20 September 2013, and the actions against City Link and LHA were dismissed on 13 January 2016 ([2015] CSOH 178). A reclaiming motion against the dismissal of the action against City Link was not insisted upon, and a reclaiming motion against dismissal......