Donal Nolan V. Advance Construction Scotland Limited
| Jurisdiction | Scotland |
| Judge | Lord Woolman |
| Neutral Citation | [2014] CSOH 4 |
| Date | 17 January 2014 |
| Docket Number | CA132/11 |
| Court | Court of Session |
| Published date | 17 January 2014 |
| OUTER HOUSE, COURT OF SESSION | |
| [2014] CSOH 4 | |
| CA132/11 | OPINION OF LORD WOOLMAN in the cause DONAL ALPHONSUS NOLAN Pursuer; against ADVANCE CONSTRUCTION (SCOTLAND) LIMITED Defender: ________________ |
Pursuer: JD Campbell QC, Murray; Drummond Miller LLP
Defender: Dunlop QC, Walker; Balfour + Manson LLP
17 January 2014
Introduction
[1] Donal Nolan owns an area of ground at Branchal Road, Cambusnethan, Wishaw ('the site'). On the morning of 19 November 2010, he observed several lorries depositing waste material at the site. He had not given permission for any tipping to take place. He took steps to terminate the operation. He contacted the police, as well as the Scottish Environment Protection Agency ('SEPA') and the local authority.
[2] Advance Construction (Scotland) Ltd ('Advance') was the contractor responsible for depositing the spoil. It had instructed hauliers to carry out the operation. Subsequent investigations revealed that the spoil contained small concentrations of asbestos. Although there have been lengthy negotiations to attempt to resolve matters, the spoil still remains on the site.
[3] Mr Nolan raised the present action against Advance in September 2011. At that stage he sought: (a) declarator of encroachment; (b) orders requiring Advance to remove the spoil, to reinstate the land and to procure a bond as security against further losses; and (c) which failing such orders, an award of £6.8 million by way of damages. That figure represented the cost of removing the spoil, the lost development value of the land, together with investigative and ancillary costs, and the cost of obtaining a bond.
The Issues
[4] In the course of the proceedings, Mr Nolan has greatly narrowed his claim. In June 2012, he deleted his conclusion for specific implement. At the close of the proof, he abandoned his claim for lost development value, which he had originally valued at £4 million. He also accepted that some elements of the claim for investigative costs are properly classified as litigation expenses.
[5] Advance accepts that its actions were unlawful. It maintains, however, that Mr Nolan is not entitled to recover damages. Its principal line of defence relates to mitigation of loss. Advance submits that Mr Nolan acted unreasonably in refusing to accept its many repeated offers to remediate the land. In consequence, he is disentitled from recovering compensation.
[6] There are several other lines of defence. Advance argues that the sum sought is excessive. In particular, it contends that the pre-existing soil itself contained asbestos, which means that the land in any event requires remediation. It also maintains that Mr Nolan has failed to prove his claim for investigative and ancillary costs. Finally, it submits that decree of declarator is unnecessary, because encroachment is admitted.
Material Facts
The pursuer
[7] Mr Nolan is a racehorse trainer, now aged 64. He retired as a jockey ten years ago. In 2001 he acquired the site, which extends to 4.2 hectares. It has a level stretch of ground of about nine furlongs, on which he used to gallop his horses. A coal mine was formerly located at the site. It was closed in the mid-20th century. Signs of the old workings are still evident, including a coal bing.
[8] Mr Nolan stays at a farmhouse about three miles away from the site. He lives there with his partner, Miss Melanie Collins. The couple have been in a relationship for over 20 years. Despite Mr Nolan having title to the site and being the sole director of various companies, Miss Collins is in charge of the couple's business affairs. She carries out all the administration for the horse-racing business. In addition, she has been involved in property development since the 1970s.
[9] Miss Collins summed up their respective business roles as follows: "Donal has no experience and leaves decisions up to me". Any reference to "the pursuer" in the course of this opinion should therefore be understood in that context. Miss Collins is the controlling mind. She took all the decisions relating to the site and to the conduct of this litigation. Another individual, Mr Connolly, was also said to be involved as a partner in the pursuer's business dealings. His role was not fully explored in the evidence, however, and it is not relevant to the issues in the case.
Residential Development at the Site
[10] The pursuer wished to develop the site for residential housing. He discussed the construction of 99 houses with North Lanarkshire Council ('NLC'). The planning officers recommended that the development should take place in three phases. In consequence, he applied to develop phase 1, consisting of twenty-eight houses. NLC granted outline permission in 2003 to Upton Park Developments Ltd and full permission in 2008 to Oscarpark Developments Ltd. Mr Nolan controlled both these companies. By autumn 2010, the development was still under consideration. The pursuer had engaged an architect and a chartered quantity surveyor to provide advice on design and costs. No finance had, however, been put in place.
The deposit of the spoil
[11] The waste material that Advance deposited on the site came from Coltness Primary School. NLC entered into a design and build contract with Graham Construction Ltd to construct a new school building. It was agreed that part of the waste material from the demolition of the old building should be re-used in the construction of the new school. The remainder was to be removed. Some was scheduled to go to a licensed landfill site near Polmont. Advance was responsible for removing the other part, which consisted mainly of subsoil. It engaged two haulage companies, Ryan Plant Ltd and Doonin Plant Ltd, to transport it to the site.
[12] Prior to the deposit taking place, Advance took a number of preparatory steps. It put up security fencing around the boundary of the site, made up a haul road, sent a bulldozer to level the waste material and installed a portakabin. It also carried out a survey to establish the ground levels. It intended to carry out a second survey once the tipping operation had ceased. The aim of the two surveys was to enable Advance to calculate the precise amount of spoil deposited at the site. That was designed to avoid any dispute with the landfill operator over tipping charges.
[13] Advance also applied to SEPA for an exemption to allow 5,000 tonnes of waste material to be deposited at the site. The application was made under para 19 of schedule 3 of the Waste Management Licensing Regulations 1994 (now repealed and replaced by the Waste Management Licensing (Scotland) Regulations 2011). The application form erroneously stated that the operation would begin on 29 November 2010. SEPA replied on 15 November seeking further information. Before matters were finalised, Advance realised that it did not have permission to tip the spoil at the site. Accordingly, no exemption was granted.
[14] The lorries containing the spoil began arriving at the site on 15 November 2010. The dumping took place on an area that broadly coincided with phase 1 of the proposed development. Mr Nolan and Miss Collins learned about the operation on the morning of Friday 19 November 2010. They immediately went to the site where they found several tipper lorries waiting in a queue. At least one of them was in the process of dumping spoil when they arrived. They noticed that the lorries bore the livery of either 'Ryan Plant' or 'Doonin Plant' and that Advance's logo featured on the portakabin and the bulldozer.
[15] Miss Collins exhibited Mr Nolan's title deeds to the police to vouch his ownership. On learning that it did not have permission to carry out the tipping operation, Advance immediately instructed the hauliers to cease any further transfer or deposit. Its position from the outset has been that it was the subject of deception.
[16] Advance's technical manager, Lance Gordon, explained matters at the proof. Two individuals, William Edward and Jim Aitken, approached him and represented that they acted for the owner of the site. They stated that it was a landfill facility with the correct licences in place. Mr Gordon asked to see the licences, which they undertook to forward to him. He was not overly concerned about the absence of paperwork, because it is common within the industry for documentation to arrive late. He saw no reason to doubt the representations made to him. Mr Edward had formerly worked for Advance and his daughter is one of its employees.
After the incident
[16] Shortly after the incident, Mr Nolan and Miss Collins met Seamus Shields, the managing director of Advance. The pursuer's solicitor described the meeting as a "fruitful" one. Mr Shields acknowledged that the deposit was wrongful. In the course of discussions, he raised the question of Advance purchasing the site, or entering into a joint venture with the pursuer. The pursuer accepted Advance's explanation of the circumstances leading up to the deposit of the spoil. It paid him a sum of £5,000 as a contribution toward compensation. No one was then aware that the spoil contained asbestos.
[17] The degree of accord between the parties is illustrated by a letter dated 25 January 2011 sent by the pursuer's solicitors to Advance's solicitors. It enclosed a handwritten letter, signed by Mr Nolan and addressed to Advance, which stated:
"I hereby provide you with my consent as follows: -
(1) For permission (retrospectively) to deposit all soils upon said site pursuant to any contractual agreement(s) which you may have entered into with 3rd parties for the deposit of said soils."
[18] Potentially that letter could have been of great significance to the present litigation. Mr Dunlop informed me, however, that he had instructions not to found upon it as relieving Advance from liability.
[19] From about March 2011, the pursuer's attitude toward Advance began to change. He queried whether it had been deceived into...
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