Batty v Metropolitan Property Realisations Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE BRIDGE,LORD JUSTICE WALLER |
| Judgment Date | 08 November 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1108-5 |
| Date | 08 November 1977 |
| Court | Court of Appeal (Civil Division) |
[1977] EWCA Civ J1108-5
Lord Justice Megaw
Lord Justice Bridge and
Lord Justice Waller
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(On appeal from Order of Mr. Justice Crichton - Manchester)
(Revised)
Mr. DOUGLAS BROWN, Q.C. and Mr. ANDRE GILBART (instructed "by Messrs. Tobin & Co.) appeared on behalf of the Appellants the First Defendant
Mr. J.M. COLLINS, Q.C. and Mr. JOHN HOOGETT (instructed by Messrs. Bannister, Preston Ormrod, Manchester) appeared on behalf of the Appellants the Second Defendants.
Mr. BEHET HYTNER, Q.C. and Mr. A.C. JOLLY (instructed by Messrs. Gregory Rowcliffe & Co., Agents for Messrs. Whiteside & Lord, Rawtenstall, Rossendale, Lanes.; appeared on behalf of the Respondent Plaintiffs.
In August, 1971, the two plaintiffs, Mr. Raymond a Batty and his wife, Mrs Helga Batty, took from the first defendants, Metropolitan Property Realisations Ltd., on a 999-year lease, a house and garden. The house had just been built, being one of a number of houses on the same estate, at Rawtenstall, in the district of Rossendale, in North- East Lancashire. They paid £5,250 as consideration for what was in all respects other than a legal technicality a purchase by them of the house. The house became known as No. 33 Redwood Drive.
The house had been built by the second defendants, Trippier Construction Ltd., under arrangements made by them with the first defendants, who are a development company. The land on which the house was built, along with neighbouring land on which other houses were built at about the same time, was sold by the second defendants. who had earlier bought it from the local authority, the third defendants, the Rossendale District Council. It was sold by the second defendants to the first defendants. Under their contract with the first defendants, the second defendants proceeded to build this house and other houses. When this house had been completed and leased to the plaintiffs on a 999-year lease, the first defendants sold the reversion to the second defendants. Thus, in effect the building of the house and its disposition was a co-operative effort by the first defendants and the second defendants, the second defendants doing the building, the first defendants providing the finance and being the party with whom the purchasers of the house, the plaintiffs, entered into contractual relations. Both the first defendants and the second defendants, through their representatives, had inspected the site, and also had walked over the surrounding territory in 1969 and 1970, before the decision to build was taken and, therefore, before the building had started. The object ofsuch inspection was to decide, by reference to various considerations, including the safety and suitability of the site for house building whether or not they or either of them would undertake, or become involved in, house-building in that area. They decided to build, on the basis, as between them, which I have just very summarily outlined.
The house was built on a sort of plateau, as it has been described, at the top of a steep slope which fell down at a gradient of about 1:3 to a stream, called the Balladen Brook, which ran in the bottom of the valley below the house. The front of No. 33 Redwood Drive faced on Redwood Drive, with a small front garden between the house and the road. At the back of No. 33 there was a piece of land, bought by the plaintiffs along with the house, which was intended to provide a garden at the back. It was somewhere down that garden that the relatively level area (it was only relatively level) which I have called "the plateau" changed its inclination to the 1:3 slope which was the general inclination of the slope falling from there towards the stream. The total area covered by the house 33 Redwood Drive and the land sold with it was about 100 feet from front to back - from Redwood Drive to the bottom of the front garden - and about 40 feet from side to side in width.
Coloured photographs which we have seen give a reasonably clear impression of the general nature of the ground in and about the house and its neighbourhood. They show the steepness and roughness of the hillside on both sides of the valley. I shall not attempt to describe the topography further, as it is unnecessary to do so for the purposes of this appeal.
That was in 1971. The plaintiffs bought their house and moved into it and made it their home. In 1974 there was a severe slip of the natural strata of the hillside. It did not directly or immediately damage the plaintiffs' house or its foundations, thoughit did cause direct damage to a part of the back garden.
As a result, urgent investigations were undertaken and legal proceedings were begun by the plaintiffs against three defendants -the two already mentioned and, as the third defendant, the Rossendale District Council, the local authority.
The gravity of that litigation - its seriousness for the parties - will become apparent when I recount that it was held by Mr. Justice Crichton, from whose judgment this appeal is brought, that the plaintiffs' house is doomed; and the finding on that issue, though it was the subject of much conflicting evidence at the trial, is not now disputed or challenged. At some time not later than 10 years from the date of the trial, possibly much earlier, the movement of the strata on the hillside on the slopes adjacent to the plaintiffs' house will cause the foundations of that house to slide down the hill and the house will be in ruins. Already, of course, in those circumstances, the house is unsaleable.
The reason, or at least the principal reason, as found by the learned judge, for this very grave and disastrous prognosis is the presence in the boulder clay, which is the principal constituent of the hillside, of a layer of what is described technically as varved clay. I do not need to go into the technical or geological details. They are not relevant for the purposes at the decision of the appeal.
The plaintiffs' claim against the first defendants was in tort, for negligence, and for breach of contract. Against the second defendants the claim was in tort for negligence, on what may call Donoghue v. Stevenson principles. Against the third defendants, the local authority, it was for negligence or breach of statutory duty, in respect of the local authority's duties with regard to inspection of the foundations. It was, however, held by the judge - and it does not appear to have been really in dispute - that the foundations as such were perfectly properly constructed, as were the bricks andmortar of the house itself. The only defect - but, in the circumstances, a very grave matter - was the nature of the land on which the house relied for its support. It was unstable, and by its instability the house was, from the outset, doomed. Thus, for that reason, and for that reason alone, the house was unfit for human habitation: because in a foreseeable, and short, time it would collapse, through the movement of the hillside.
The plaintiffs succeeded before the judge against the first defendants, though on their claim in contract only, and against the second defendants on the sole claim against them in tort. They failed against the third defendants. The judge awarded the plaintiffs, jointly against both the first and second defendants, £13,000, and he also awarded Mrs. Batty £250 for the consequences of her distress - the effect upon her, physical and mental, of these events. Those sums were agreed by the parties as being the appropriate sums for damages, subject to liability,
The first and second defendants both appeal. There is a cross-notice on behalf of the plaintiffs, asserting that, as against the first defendants, the judge ought to have entered judgment on the claim in tort, as well as on the claim in contract. That would not have affected the amount to be awarded in the judgment, but it may be of practical importance to the plaintiffs none the less. There is no cross-appeal by the plaintiffs as regards the dismissal of their claim with costs against the third defendants.
Counsel for all the parties concerned have, if I may say so, presented their submissions in this Court with admirable clarity and conciseness, both on the issues of fact and on the issues of law which they desire to raise. I shall seek to emulate their conciseness. In particular, I do not propose to set out or summarise in any detail the evidence on the various questions of fact which were in issue before us, for it appears to me that the conclusionsof the learned judge on all those issues, as set out in his judgment, are not only supported by some evidence, but they are supported by evidence which fully justifies the judge's conclusions thereon. If anyone should wish to look in more detail at the evidence, they will find it summarised, with the judge's conclusions thereon, in his judgment.
The first ground of appeal argued by Mr. Brown, on behalf of the first defendants, is concerned with the terms of the contract of sale - or, rather, the contract relating to the 999 years lease - between the first defendants and the plaintiffs. That contract was made in writing on 9th August, 1971. It is contained in two related documents. The relevant term provides as follows, under the heading "The Vendor's Obligations": "(3) The Vendor hereby warrants that the dwelling has been built or agreed that it will be built (i) in an efficient and workmanlike manner and of proper materials and so as to be fit for habitation" plaintiffs, is a breach of war ranty. For the first defendants it is said that the obligation imposed by the...
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