Richardson v West Lindsey District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE STOCKER,LORD JUSTICE BINGHAM |
| Judgment Date | 25 July 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0725-5 |
| Docket Number | 89/0806 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 1989 |
[1989] EWCA Civ J0725-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
GREAT GRIMSBY DISTRICT REGISTRY
ON TRANSFER TO OFFICIAL REFEREE'S COURT NOTTINGHAM
(HIS HONOUR JUDGE HEALD, Sitting as an Official Referee)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Stocker
and
Lord Justice Bingham
89/0806
1986 R No. 432
and
and
MR. ANDREW YOUNG (instructed by Messrs. Rowe & Maw, Solicitors, London EC4V 6HD, agents for Messrs. Wilkin & Chapman, Solicitors, Grimsby, South Humberside, EN31 1HE) appeared on behalf of the Plaintiff (Appellant).
MR. SIMON BEARD (instructed by Messrs. Langleys, Solicitors, Lincoln, LN2 1ES) appeared on behalf of the First Defendant (Respondent).
The appellant, and the plaintiff in the action, is Mr. Graham Stanley Richardson. He is the owner of a house at 24 Cissplatt Lane, Keelby, South Humberside.
The respondent, the first defendant in the action, is the local authority responsible for implementing the building regulations and the planning legislation in the area where Mr. Richardson's house is situated.
The second and third defendants have played no part in this interlocutory proceeding at any stage. They might well be unable to meet a judgment against them.
The appeal is against a decision of His Honour Judge Heald, sitting as an official referee, on a preliminary issue heard by him in Nottingham. He gave judgment on 27th July 1988. We are grateful to the judge for setting out his decision in such a careful clear and concise judgment.
In the action Mr. Richardson claims damages against the local authority for negligence or breach of duty by the local authority in performing its functions under the building regulations. The preliminary issue, which the judge himself had ordered to be heard, was in these terms:
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"1. There be a Trial of a Preliminary Issue to determine whether any Common Law Duty of Care or Statutory Duty was owed by the First Defendants to the Plaintiff and, if so, what was the scope of any such duty.
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2. For the purposes of determining this Preliminary Issue it is to be assumed that:—
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(a) The amended plan submitted to the First Defendants on or about the 6th October 1982 was defective in that it did not contain sufficient detail to indicate whether the proposed work would comply with the Building Regulations 1976 and in particular was defective in the respects particularised in Paragraph 9(c)(iv) of the Statement of Claim.
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(b) The building work carried out at the Plaintiff's premises was defective in the respects alleged in Paragraph 9(d)(ii), (iii), (v)-(xi) of the Statement of Claim and that the Plaintiff has suffered loss and damage in consequence.
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(c) That the Second Defendant was a building draughtsman and employed by the Plaintiff to produce the plan submitted to the First Defendants on 6th October 1982 for the purposes of Planning Permission and Building Regulation Approval."
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Paragraph 9(c)(iv) of the Statement of Claim, referred to in paragraph 2(a) of the order, begins
"(iv) More particularly, but without prejudice to the generality of (i), (ii) and (iii) above, the plans for the dormer windows in the bedrooms were inadequately detailed in the following respects:"
and there follows a series of sub-heads some of which relate to the strength of the proposed structure.
Paragraph 9(d)(ii), (iii) and (v)—(xi) of the Statement of Claim list a large number of defects in the structure as built, some of them relating to its strength. The complaint is of a failure to inspect adequately during construction.
In addition to making the assumptions referred to for purposes of the preliminary issue the learned judge heard evidence and made factual findings, some of which are criticised.
I think it is perhaps convenient at this point to quote the full facts as found by the judge:
"The Plaintiff bought 24 Cissplatt Lane, Keelby, in 1980. At that time it was a bungalow. In 1980 he decided to extend it. He had a cousin who was a builder, and therefore, with the help of his cousin, he drew a plan which he submitted for planning permission and bye-law regulation approval. Those approvals were granted, and he then set about building the extension. His cousin did the necessary work. He acted as labourer but also was responsible for ordering the materials as he had access to a builders' merchant from whom he was able to obtain a trade discount. That extension was satisfactorily completed. In 1982 he decided to make further extensions to the bungalow by building three bedrooms in the roof space. This required substantial alterations to the roof, and on this occasion he approached a well known local builder who specialised in these types of alterations, a Mr. Lovelock. Mr. Lovelock introduced him to a draughtsman, the Second Defendant, who apparently normally drew plans for Mr. Lovelock and who was employed in some capacity by a neighbouring district council. Mr. Bennett produced plans which are before me which were submitted to the First Defendant for planning approval and bye-law approval. Planning approval and bye-law approval are dealt with by separate departments of the district council. As far as planning approval was concerned, it was dealt with from the Gainsborough offices, and, as far as bye-law approval was concerned, it was dealt with from the Caistor office. The two offices liaised to some extent over such applications, although each were processed separately. The planning application was the responsibility of Mr. Berrie, an employee of the First Defendant. He was technically a Development Control Officer and his background was as an architectural technician in Lincoln City Architects Department followed by a period in private practice. He then joined Lincoln City Council as a planning technician and eventually became a Development Control Officer with the First Defendant council. His responsibilities were for the Caistor area of the district council. It will be observed that his background, although it gave him a considerable amount of experience of architectural and planning matters, was in no sense that of a qualified or consultant architect or planner. The building inspector who was responsible for the application was a Mr. Harry Green, who has now retired. It appears that for the Caistor area of the district council there were two building inspectors; Mr. Green and an assistant. They split the area between them, and Mr. Green appears to have been responsible for approximately 22 parishes, and his duties required carrying out the inspections in those parishes and also approving the details of building regulation applications. It appeared from his evidence that he would have to visit a number of sites at which work was going on each day and also he would have to vet approximately 10 applications for building.
Mr. Green's background was that of a plumber. Thereafter for some years he was general foreman in charge of housing repairs for the then rural district council, and finally in 1968 he became a building inspector with Caistor Rural District Council. I understand from his evidence that his assistant had a background as a bricklayer. This type of background is, in my experience, fairly normal for building inspectors in the rural areas of the country. I emphasise the background as it shows that the inspectors are not professionally qualified, although quite clearly they have many years of practical experience and good sound commonsense.
The plan that was submitted in July, 1982, for planning permission approval and building regulation approval was in the form of plan D2. As far as planning approval is concerned that plan was not approved for planning permission because objection was taken to the construction of the extension which was in the form of a flat roof and was considered to be out of place in the neighbourhood. As far as the application for bye-law regulation approval is concerned, it was submitted to Mr. Green, who examined it, and his marks can be seen on plan D2 in red, but he did not approve it entirely for building regulations purposes. He wrote a letter, number 8 in the bundle, dated the 22nd July, 1982, setting out his requirements. There followed a telephone call between Mr. Richardson and Mr. Green, confirmed by Mr. Richardson's letter, number 9 in the bundle, received on the 9th August, 1982. It will be observed that in that letter Mr. Richardson undertakes to insert 6"x 2" rafters in the new roof. On the same day formal notice of the passing of the building plans was issued. The application had been entered in the register of approved plans (Exhibit D1) on the date of its reception. It is number 266/82. Thus, as far as the original plan was concerned, it was not passed for planning permission purposes but was passed subject to corrections for building regulation purposes.
On the 22nd September, 1982, a meeting was held on site attended by Mr. Richardson, Mr. Berrie, Mr. Brant, the Chairman of the appropriate committee of the district council, and Mr. Stables, the proposed builder. That meeting was held on site, and the intention was to hold discussions to overcome the planning objections. As a result of that meeting it was agreed that the plan should be altered and an extension with dormer windows and a pitched roof should be substituted. It will be observed that the builder who was present on that occasion was Mr. Stables, and not the gentleman originally...
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