Dennis v Charnwood Borough Council

JurisdictionEngland & Wales
Judgment Date29 July 1982
Judgment citation (vLex)[1982] EWCA Civ J0729-1
Docket Number82/0292
CourtCourt of Appeal (Civil Division)
James Reginald Dennis


Evelyn Doris Ada Dennis
Plaintiffs (Respondents)
Charnwood Borough Council
Defendants (Appellants)

[1982] EWCA Civ J0729-1


Lord Justice Lawton,

Lord Justice Templeman


Lord Justice Fox


1978 D. No. 695


COURT OF APPEAL (Civil Division)

(On appeal from Mr. Justice Forbes)

Royal Courts of Justice

Mr. IGOR JUDGE. QC, and Mr. NIGEL BAKER (instructed by Messrs. Browne Jacobson & Roose, Nottingham) appeared on behalf of the Appellants.

Mr. RICHARD TUCKER. QC, and Mr. REX TEDD (instructed by Messrs. Owston & Co., Leicester) appeared on behalf of the Respondents.


Lord Justice Templeman will deliver the first judgment.


By section 61 of the Public Health Act 1936, as originally enacted, a local authority had power to make regulations which might include provisions for the deposit of plans of buildings and for the inspection of building work. By section 64 the local authority must reject the plans if they are defective or show that the proposed work would contravene any of the building regulations.


In 1953 the Rural District Council of Barrow-upon-Soar, the predecessors of the appellant defendants, the Charnwood Borough Council, made building bye-laws by regulations under section 61 of the Act. Bye-law 2(3) and Part C of the First Schedule require every person who intends to erect a building, other than certain exempt buildings not here material, to give notice of his intention and to deposit plans and particulars. Bye-law 6 requires a builder to give prior notice in writing to the Council of the date and time of the commencement of building operations and before the covering up of (inter alia) any foundation. If a builder fails to give the requisite notice the surveyor of the Council may require him to cut into, lay open or pull down so much of the building works as prevents the surveyor from ascertaining whether any of the bye-laws have been contravened.


In 1955 the respondent plaintiffs, Mr. and Mrs. Dennis, commissioned a local builder to build a house and the plan was duly submitted to and passed by the Council.


The first question is whether the Council, when they considered and passed the plan of the house owed any duty of care to Mr. Dennis. In Anns v. Merton London Borough Council (1978) AC 728 the House of Lords decided that under the Public Health Act 1936 local authorities owe a duty to give proper consideration to the question whether they should inspect the carrying out of any building work. If they decide to inspect, they are under a duty to use reasonable care in carrying out their supervisory function of ensuring compliance with the building bye-laws but only within the limits of discretion bona fide exercised as to the time and manner of inspection: per Lord Wilberforce at page 755. The duty is owed to the owner or occupier at the date when damage occurs as a result of a breach of duty by the local authority. The duty is not owed to a negligent building owner who is the source of his own loss: per Lord Wilberforce at page 758.


In my judgment, if local authorities are liable within the limits prescribed in the Anns case for negligence in connection with the discretionary inspection of building works, they must similarly be liable for negligence in failing to use reasonable care in considering and approving plans.


There is no suggestion that Mr. and Mrs. Dennis, the building owners, were negligent or the source of their own loss. They were entitled to trust the builder and the Council. They were entitled to claim damages against the builder if he was negligent. They were entitled to claim damages against the Council if the Council were negligently in breach of their duty to take reasonable care in the consideration of the plan of the house or in the exercise of their supervisory and discretionary power of inspection.


Bye-law 18(1)(a) provides that the foundations of every building shall be so designed and constructed as to sustain the relevant loads and to transmit those loads to the ground in such a manner that the pressure on the ground shall not cause such settlement as may impair the stability of the building. Bye-law 18(1)(b) provides that the foundations of every building shall be taken down to such a depth, or be so designed and constructed, as to safeguard the building against damage by swelling or shrinking of the sub-soil. Bye-law 19(1) provides that the foundations of a domestic building constructed as strip foundations of plain concrete situated centrally under the walls or piers shall be deemed to satisfy the requirements of bye-law 18(1)(a) if inter alia there is no wide variation in the type of sub-soil over the loaded area and no weaker type of soil exists below that on which the foundations rest within such a depth as may impair the stability of the structure.


The plan for the house to be built for Mr. and Mrs. Dennis disclosed that the house was to be supported by a concrete raft. Experience proved that the raft was an inadequate foundation for the house. The raft did not sustain the load of the house so that there was settlement which impaired that stability of the building which was required by bye-law 18(1)(a). The foundations of the house were not taken down to such a depth and were not so designed and constructed as to safeguard the building, as required by bye-law 18(1)(b) against damage by swelling or shrinking of the sub-soil. There were four reasons why the raft and the foundations of the house were inadequate for their purpose. First, the raft was constructed partly on natural soil and partly on soil which filled in the site of sand extraction. This caused uneven settlement and subsidence which in turn caused the raft to tilt and crack. Secondly, the infilling soil was clay which contracts and expands and reacts differently from natural sand soil. Thirdly, the infilling soil included quantities of inorganic matter which occasioned uneven settlement and subsidence. Fourthly, when the raft came to be installed, it was constructed by the builder in two halves and those halves were not properly welded together. This defect was concealed from the Council. It was a defect which, in the circumstances, further impaired the stability of the building. Although the learned judge, Mr. Justice Forbes, did not make any express finding on this aspect of the matter, I deduce from the evidence that the raft would have been inadequate to sustain the building even if it had been properly constructed. At any rate, the Council have not argued the contrary.


The second question which arises on this appeal is whether the Council were negligent in passing the plan of the house. In 1955 it was known that the house was to be erected on the site of a former sand pit. The builder's son gave evidence that "we all thought it had been filled with hard material". In these circumstances, the Council's surveyor insisted on a raft foundation: see page 15 of the transcript of evidence of the 27th October 1991.


It was submitted on behalf of the Council that, in view of the fact that the Council were only concerned to carry out their role under the Public Health Act 1936, they were entitled as against the building owner to assume that, if a plan made provision for the installation of a concrete raft of the nature disclosed in the present case, then such a raft would be adequate for its purpose. But the very proposal to instal a concrete raft revealed that the house was to be built on made-up ground. In my judgment, that revelation cast on the Council the duty of considering whether the raft would in fact be adequate for its purpose. If the Council were not satisfied that the raft was adequate for its purpose then they must reject the plan as being defective or as failing to comply with the bye-laws.


It was then submitted that the dangers of building on made-up ground were not appreciated in general in 1955 and are only apparent in the present case with hindsight. It was said that it is too much to expect a busy Council surveyor to have been conscious of all the possible dangers in 1955. But the evidence was that the dangers of building on made-up ground were appreciated as early as 1949 when the Building Research Station published a report for the guidance of surveyors. That report pointed out that in the past the control exercised in filling waste ground had not been such as to ensure that the site would be suitable for the support of buildings with normal type foundations. The time required for a fill to reach a sufficient degree of natural consolidation to make it suitable as a foundation depended mainly on the following factors: the nature of the material comprising the fill, the depth of the fill, the method of placing, the nature of the underlying natural ground and the drainage conditions. It was not possible to lay down general rules and each case needed to be considered on its merits. Pills containing a large proportion of very fine grade materials like clay took a very long time to consolidate sufficiently. The actual time depended mainly on the method of placing and the depth of the fill. Fills of mixed compositions, especially if they were loosely tipped in random fashion, were likely to give variable support to foundations. Unless it was known that the fill was composed of the best type of material or had been placed by rolling in thin layers, it was always advisable to put test pits down into the fill and by inspection of the sides to estimate the extent to which natural compaction had proceeded. The foundation must then be designed to suit the conditions revealed. Special care should be taken with buildings...

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