Dutton v Bognor Regis Urban District Council

JurisdictionEngland & Wales
Judgment Date17 December 1971
Judgment citation (vLex)[1971] EWCA Civ J1217-1
Date17 December 1971
CourtCourt of Appeal (Civil Division)

Appeal by second defendants from judgment of Mr. Justice Cusack 11 on 7 April, 1971.

Saidee Dutton (Widow)
Bognor Regis United Building Company Limited
First Defendant
Bognor Regis Urban District Council
Second Defendant Appellant

[1971] EWCA Civ J1217-1


The Master of the Rolls (Lord Denning),

Lord Justice Sachs and

Lord Justice Stamp

In The Supreme Court of Judicature

Court of Appeal

Mr. NORMAN TAPP, Q. C., and Mr. JAMES DAVIS (instructed by Messrs. Doyle Devonshire Box & Co., agents for Messrs. Sparrow & Sparrow of Bognor Regis) appeared on behalf of the Appellant Second Defendant.

Mr. JOHN WOOD, Q. C., Mr. PHILIP ROSSDALE and Miss COCKBUBN (instructed by Messrs. Woodham, Smith Borradaile & Martin) appeared on behalf of the Respondent Plaintiff.


In Bognor Regis there was years ago a rubbish tip. It was filled in and the ground made up so that it looked like the land next to it. You would not have known there had ever been a rubbish tip there.


In 1958 a builder, Mr. Holroyd (who called himself the United Building Company), bought all the land in that area and proposed to develop It as a housing estate. He called it the Gossamer Estate, and laid it out in roads and plots. One of the plots was on the site of the old rubbish tip. It was plot No.28, St. Richard's Way. Mr. Holroyd employed a local surveyor — Mr. Lewis — to make plans and apply for planning permissions and also, of course, for bye-law approval.


On 16th October, 1958, Mr. Holroyd9s surveyor submitted the plans. It was quite a straightforward plans showing the house with normal foundations for the type of soil usually found in Bognor Regis. On 23rd October, 1958, the Bognor Regis Urban District Council gave bye-law approval in their printed form. Their Engineer and Surveyor sent formal approval to Mr. Holroyd's surveyors:-

I hereby give you notice that the plans of proposed work, viz., detached house and garage, situate in Plot 28, St. Richard's Way, for W. Holroyd, Esq., which has been deposited by you in accordance with building bye-laws with the local authority, has been passed.

The passing of the plan operates as on approval thereof only for the purposes of the requirements of the bye-laws and of Sections 37, 6l, 63, 64 and 65 of the Public Health Act, 1936.

Dated this 23rd day of October, 1961.

E. B. Williams,

Engineer and Surveyor."

Note: All foundations and drains must first be examined by the Surveyor before being covered up.

No new premises to be occupied before being certified by the Surveyor. The accompanying Notice Forms are to be filled up and returned to the Surveyor as the work proceeds, and when completed."


Together with that form, there were sent to Mr. Holroyd's surveyor a batch of notice forms for him to notify the Council's Surveyor of the progress of the work.


That bye-law approval was followed by planning permission. This was sent on 11th November, 1958, by the Clerk to the Council to Mr. Holroyd's surveyor. It said:-

"The Council, on behalf of the West Sussex County Council, hereby permit the following development, that is to say, Detached House and Garage, Plot 2 6, St. Richard's Way, Gossamer Estate, Aldwick, for W. Holroyd, Esq. in the terms of, and subject to compliance with, the details specialised in the plan and application submitted to the Council on 16th October, 1958."


Having thus got the necessary approval, Mr. Holroyd, in 1959. started work on plot 28. He dug the trenches for the foundations. When he got down about two feet, he came upon the remains of the old rubbish tip, broken glass, tins, and black slimy sludge. So he made the outer trench 3.6" deep, which is much deeper than usual; and he reinforced the concrete floor with a steel mesh. But he did not bother much about the inner walls. He notified the Council that the trenches were ready for inspection. The Council sent a building inspector, Mr. Griffiths, to inspect them. He came, and passed them. Mr. Holroyd then filled in the trenches with concrete and built up to damp-course level. The Council's Surveyor came, and passed the work at that stage, too. The house was finished towards the end of 1959.


Early in 1960 Mr. Holroyd, the builder, "old the house to a Mr. Clark. He was in it only for a few months. Then, in December, 1960, he put the house up for sale again. Mrs. Dutton went to see it. She liked it. She noticed a crack on the wall of the stairs. The agents told hers "It's nothing. It's settlement. It's a new house, and you always have settlement." She did not herself employ a surveyor, because it was a newhouse. But, to buy it, she borrowed money from a building society and their surveyor passed it. She signed the contract on 19th December, 1960. She moved in on 11th January, 1961. The deed of conveyance was dated 20th January, 1961.


Soon afterwards, when Mrs. Dutton had only been in a month or two, she became alarmed. The walls and ceiling cracked, the staircase slipped, the doors and windows would not close. She called in a surveyor, Mr. Southall. In September I96I he diagnosed the trouble. It was due to the subsidence of an internal wall. This was because that wall had inadequate foundations. The conditions got worse. Mrs. Dutton had not much money. She could not afford to put it right. It would cost £2,000, even in 1962, plus surveyor's fees of £240. So it got worse and worse. In 1963 she went to solicitors. They called in an expert surveyor — Mr. Carpenter. He had trial holes dug. He found out that the house had been built on a rubbish tip. He said that, at the time when the house was built, this could have been easily seen.


On 28th February, 1964, Mrs. Dutton issued a writ against the builder, Mr. Holroyd, and the Bognor Regis Urban District Council, Her total damage was £2,740 (being as to £2,240 for cost of repair and £500 diminution in value). The builder, by his insurance company, claimed that he was exempted entirely from liability by the decision of Bottomley v. Bannister (1932) 1 K. B.4595 and Otto v. Bolton (1936) 1 K. B.45. On that account Mrs. Dutton settled the claim against the builder for £625. But Mrs. Dutton went on against the Bognor Regis Urban District Council. She alleged that their building inspector was negligent in passing the foundations. The Council did not call any evidence to deny this. Their building inspector had left and gone to Australia. The Judge found that the Council's Inspectorwas negligent. He said: I find that it should have been detected. The strength of the foundations should be related to the nature of the ground. The distinction between building a house upon rock and building a house upon sand has been widely known for many centuries."


The Judge gave judgment in favour of Mrs. Button for £2,115 (being the full sum of £2,740, less £625 recovered against the builder). The Council appeal to this Court.


Never before has an action of this kind been brought before our Courts. Nor, so far as we can discover, before the Courts of any other countries which follow the common law. It raises issues of far-reaching importance. In these days much work is subject to inspection to see that it is done properly. The inspector is usually the servant of a public authority. If the inspector negligently passes bad work, is the inspector liable Himself and also the authority which employs him? We have been treated to a wide-ranging argument well presented on both sides. Many points have been canvassed. In the end it will be found to be a question of policy which we, as Judges, have to decide. But, before we come to it, I must deal with several preliminaries.




At the time when this house was built, the work was subject to the Public Health Act, 1936, and the bye-laws made under it by the Bognor Regis Council. The bye-laws were in standard form and could not be relaxed except with the consent of the Minister. Bye-law No. 18 dealt expressly with foundations. It said:

"The foundations of every building shall be so designed and constructed as to sustain the loads of the building and to transmit these 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 or any part of the building."


It is plain that the builder in this case failed to comply with that bye-law. He did not construct the foundations properly. They were not strong enough to take the load of the house.


Bye-law No.6 required the builder to furnish the Council "with not less than 24 hours' notice in writing before the covering up of any drain, private sewer, concrete or other material laid on a site, foundation or damp-proof course." We may, I think, assume that the builder in this case duly gave notice to the Council. The Council's inspector came and inspected the work, but did it so negligently that he passed the bad work.


Bye-law No. 112 enacted that any person offending against any of the bye-laws should be liable on conviction to a fine not exceeding £5.


(Since 1965, building work has been subject to Building Regulations made by the Minister under section of the Public Health Act, 1961 and he alone can relax them, see section 6(1). These regulations are much the same as the standard bye-laws previously in force. But they are more specific. They require not less than 24 hours notice in writing before the covering-up of any excavation for a foundation, any foundation or any concrete or other material laid over a site.




Much discussion took place before us as to whether the Council were under a duty to examine the foundations or had only a power to do so. The Public Health Acts do not make this clear. The 1936 Act simply says that it is the duty of the local authority to carry the Act into execution (see section 1(1)). The 1961 Act...

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