England and Wales Lands Tribunal

[2001] EWLands LCA_44_1997 (7 June 2001)

LCA/44/1997

LANDS TRIBUNAL ACT 1949

COMPENSATION – Damage caused to bungalow close to new sewer and trees – whether damage caused by works connected with sewer or by trees acting on clay beneath foundations – Held sewer works to blame – Public Health Act 1936, s.278.

IN THE MATTER of a NOTICE OF REFERENCE

BETWEEN JACK LUMB Claimant

and

UNITED UTILITIES WATER LIMITED Respondent

(formerly NORTH WEST WATER LIMITED)

Re: "Dunwood",

Smallbrook Road,

Shaw, Nr Oldham,

Lancs.

Before: N J Rose FRICS

Sitting at: Manchester Combined Tax Tribunal,

9th Floor, West Point, 501 Chester Road, Old Trafford, Manchester M16 9HU

on 15 May 2001

Ruth Stockley, instructed by Jackson Brierley Hudson Stoney, solicitors of Rochdale for the Claimant.

Alan Evans, instructed by Mr T J Warn, solicitor with United Utilities Water Limited for the Respondent.


 


DECISION

1. This is the second stage of a reference to determine the compensation payable under s.278 of the Public Health Act 1936 to Mr Jack Lumb, the freeholder, (the claimant) for damage allegedly caused to "Dunwood", Smallbrook Road, Shaw, Nr Oldham, Lancashire (Dunwood) as a consequence of nearby tunnelling and blasting works in connection with the sinking of a sewer. The works were carried out by United Utilities Water Limited, previously known as North West Water Limited, and that company is the respondent in these proceedings.
2. Following a hearing on 13 November 1997 into a preliminary issue under rule 43 of the Lands Tribunal Rules 1996 the then President, Judge Marder, QC held that this Tribunal had jurisdiction to determine the matter. At a pre-trial review on 24 January 2001 the Tribunal ordered that two further questions should also be determined as preliminary issues. Those questions are:

"(1) Whether damage was caused to Dunwood by the laying of the Shaw Main Outfall Sewer; and

(2) If so, the extent of that damage."

3. Ms Ruth Stockley of counsel appeared for the claimant. She called as witnesses of fact, firstly the claimant and, secondly, Mr James Wylie, who occupied Dunwood as a tenant from 1983 until April 1994. She also called two expert witnesses, Mr G A Morris, CEng, MICE, AMInstHE, and Mr V J P Greenwood, BSc, CGeol FGS. Mr Alan Evans of counsel appeared for the respondent. He called one expert witness, Mr B M Kavanagh, CEng FIStructE, FASI, FRSA, FConsE and no factual witnesses. By agreement, the parties' closing submissions were made in writing after the oral hearing had concluded.
4. From the evidence I find the following facts. Dunwood comprises a bungalow erected in about 1955 and constructed with a floor level approximately 8 feet above the surface of Smallbrook Road, just to the north-east of the town centre of Shaw. The external elevations are composed of 11 inch cavity brickwork, with two bay window structures attached to the front elevation. An integral garage is incorporated on the left hand side of the property and the roof is covered with clay tiles upon a double hipped end timber framework. There is a 4 feet deep void beneath the floor.
5. In 1988/89 tunnelling works were carried out by Oldham Metropolitan Borough Council as agents for the respondent in connection with the construction of the Shaw Main Outfall Sewer Scheme. The relevant length of the sewer commenced at Shaft 9, sunk in the car park opposite Dunwood and travelling in a north-westerly direction past its north-easterly corner towards Shaft 8. At its nearest point the sewer was between 12 and 15 metres from the north-east corner of the bungalow.
6. In January 1988 the respondent gave notice of its intention to construct the sewer and it entered the claimant's land on 2 February 1988. The sewer was 12 metres deep to invert level at shaft 9. The tunnel was considerably deeper when passing Dunwood because of the rise of the land. It only became necessary to blast through rock when the tunnel had progressed nearly 250 metres north-west of Dunwood.
7. In about July 1989 Mr Wylie drew the claimant's attention to cracks which had appeared in the corner of the bungalow closest to the tunnel. The claimant reported the problem to Oldham MBC, whose representative inspected the property on 9 November 1989. The damage then consisted of cracks to the bedroom ceilings, the lintel over the front bedroom window, the junction of the bay with the main front wall and the top right hand corner of the main front wall.
8. Mr Morris inspected Dunwood for the first time in November 1990. In his report to the claimant he recorded that the damage to the property was as follows:

"The external face of the brickwork to the right hand bay window (when viewed from the front) shows signs of fracturing and forward rotation away from the main structure. Separation between the right hand edge of the bay window frame and the adjacent brickwork has occurred and slight distortion to the front section of the right hand elevation brickwork is apparent. The brick courses on the front elevation are slightly out of level and dip towards the front outer corner adjacent to the bay window in question.

Internally, a ¼ " wide fracture has occurred at the top left hand corner of the bay window aperture in the bedroom and separation of the decorative wall and ceiling papers has occurred along the side wall of the bedroom. A vertical fracture was noted from the right hand edge of the bedroom window cill extending down to floor level. The bottom left hand pane of glass in the bay window was noted to be cracked.

A cracking pattern co-incident with the edges of the plasterboard sheets has developed to the bedroom ceiling with a gap now apparent of about 2mm in the centre of the bedroom ceiling."

9. Mr Morris said that when he first inspected Dunwood, he formed the view that the cracks were of relatively recent origin, probably one or two years old and certainly not more than five years. He re-inspected the property on 6 August 1992. By then the structural distress was much more evident. Further deterioration had occurred by the time of his final inspection in about August 1995.
10. It is agreed that the subject property suffered damage concentrated around the north-eastern corner, namely the front right corner, viewed from Smallbrook Road. The claimant submits that this damage was caused by the tunnelling and blasting works carried out by the respondent. The respondent's case is that the cause of the damage was the action of the trees on the shrinking clay sub-soil beneath the foundations.
11. Mr Morris based his expert opinion on the assumption that, before the tunnelling works started, Dunwood had been free of structural defects and that, when blasting operations were in progress, considerable vibration to the bungalow and its contents was noted. In his first report dated 9 November 1990 he expressed the view that:

"the construction of the tunnel in close proximity to the bungalow could have been the cause of the structural damage sustained."

12. By the time Mr Morris inspected the property again in August 1992, the claimant had scraped away the top soil and exposed the virgin clay at approximately foundation level. Mr Morris observed a substantial crack in the surface of the clay which appeared to follow the line of the sewer. He reported to the claimant that this:

"fissure in the clay surface appears to have been caused by settlement of the ground above the line of the tunnel and in my opinion this general earth movement is the cause of the structural damage now being sustained by your bungalow."

13. He concluded that the balance of probability was that the damage had been caused by the excavation of the sewer, the blasting for the sewer tunnel, or a combination of both.
14. Before me he explained that there was a row of trees some 9 or 10 metres away from the original gable wall of the bungalow and parallel to it. It included two Lombardy poplars, a flowering cherry and two silver birches. He agreed that the roots of Lombardy poplars were renowned for causing damage to buildings. He considered, however, that damage from tree roots would have been an insidious problem occurring over a period of time. It would not have been likely to be as described by the claimant and Mr Wylie, namely occurring suddenly and severely during the tunnelling operations. Furthermore, if tree roots had been the cause of the problem, he would have expected to see a pattern of parallel cracks in the clay, at right angles to each other; not a fissure, 4 inches wide at the surface and some 2 feet or 2 feet 6 inches deep and running parallel to and 3 or 4 metres from the sewer tunnel. Moreover, the trees would have had an abundant supply of water flowing down the hillside to the north and west of the bungalow. Since the trees were located between the hillside and the bungalow, they would not have needed to send out roots in a southerly direction towards Dunwood. In cross-examination, however, he conceded that he could not rule out the possibility that the roots would have needed to move towards Dunwood.
15. The main purpose of Mr Greenwood's evidence was to rebut a suggestion, made by the respondent's representative in September 1992, that the damage was associated with a geological fault. Mr Greenwood's view is now accepted by the respondent and I need say no more about it.
16. Mr Kavanagh was first instructed in connection with this dispute in August 1997. By that time the damage to Dunwood had been made good and the property enlarged in size. He reported to the respondent on 18 September 1997. His report included the following observations:

"There is therefore no evidence of any previous damage and consequently we cannot comment on whether that damage was as a result of the sewer works or not.

You will, however, observe from the photographs that the property, and particularly the right hand side of the property, is in very close proximity to the mature poplar and other trees and that area of the property could therefore have been affected by clay shrinkage, aggravated by tree root damage following the summer of 1989.

It must be said, however, that the line of the sewer when judging from the manhole in one of the photographs does run in very close proximity to the property and may, in fact, have been the cause of or a contributing factor in some if not all of the damage as alleged by the property owner.

… it may be that there was previous damage within the property resulting from tree root action and clay shrinkage, although it may be clutching at straws to suggest such a thing and in any event such damage would have been covered under general household insurance policies.

We note from a memo of 25 September 1992 that it is conceded that some settlement could have taken place around shaft number 9 shown in the car park in the enclosed photographs near the bungalow, due to loss of ground water while sinking the shaft.

… however, at the time of our visit all damage has now been remedied and with extensions at both the front and right hand elevations, the history of any damage has long since been covered up.

It is therefore impossible for us to say with any degree of certainty that the damage was or was not caused by tunnelling works.

It seems likely that the tunnelling could have contributed towards any damage which previously existed and this is certainly suggested in the memo of 25 September where it is conceded that some settlement could have taken place.

This may have aggravated a previously existing situation as Mr Stott from Oldham Borough Council has suggested at the time of his own visit that the cracks did not appear to be recent when examined in November 1989, immediately after the tunnelling which occurred during August/November.

This is all pure conjecture, however, as no damage was available for inspection at the time of our visit. Our report, therefore, is necessarily vague and unless we can have sight of any photographs which were previously taken of the damage we cannot comment further on the matter."

17. Mr Kavanagh's report to the Tribunal was dated 26 April 2001. By then, he had seen additional documentation, including seven photographs of the subject property that had been taken by Mr Morris in August 1992. He had also obtained further information concerning ground conditions and the geology of the area.
18. In the light of this information, he was at that time firmly of the opinion that the damage had resulted from the action of the tree roots within the clay subsoil rather than the tunnelling works. The sewer was substantially in excess of 12 metres to invert level when passing Dunwood. Moreover, there had been no recorded problems with the tunnelling operation. The tunnel passed through stiff cohesive material and mudstone and there was no record of any granular material; the tunnelling operation would therefore not have caused any problems or damage when passing Dunwood.
19. Mr Kavanagh considered that the cracks shown in Mr Morris's photographs appeared to be "slight and of some considerable age". He pointed out that the cracking had continued for many years. It was not a "once and for all" occurrence, as would be associated with tunnelling and vibration damage, particularly through the ground found across the site (firm clays and mudstone) which would not tend to settle over long periods. He considered it significant that the cracks in the clay only appeared to be present at foundation level. There was no evidence of any cracking in the harder road or pavement surfaces around the house, where any settlement of ground due to tunnelling would have shown. As for Mr Morris's suggestion that tree root damage would have been associated with cuboidal cracking in the clay, Mr Kavanagh said that this only happened where the clay had been left exposed for some time. He considered that cracking to the building would have been more extensive if it had resulted from tunnelling works. It would have been distributed throughout the property and not concentrated around one front corner alone. Moreover, it would have shown in long fissures at ground level across the site and across the roads.
20. In Mr Kavanagh's opinion, the time-scale of the damage coincided with the prolonged dry spell from 1989 to 1992. He believed that it had been the action of the trees in the drying clay during these drought conditions which had caused the damage concentrated in close proximity to the trees around the front corner of Dunwood, which was in an elevated position and would dry out faster than the deeper foundations elsewhere.
21. Mr Kavanagh modified his views towards the end of his evidence. In re-examination he summarised his final position as follows:

"I think the cracks were started by the action of the trees. When the building weakened, further vibration from the tunnel exacerbated the position. It is not possible to divide the damage between the two causes because I did not see it at the time."

22. Although Mr Morris and Mr Kavanagh drew conflicting conclusions as to the cause of the damage to Dunwood, neither painted an entirely black and white picture. Mr Morris explained why he did not think that tree roots were responsible, but his opinion that tunnelling was to blame was based only "on the balance of probability". Mr Kavanagh strongly disagreed with Mr Morris, but he eventually accepted that tunnelling had played a secondary part in weakening the building.
23. Having considered the matter carefully, I have concluded that the explanation offered by Mr Morris is to be preferred. The reasons for this are as follows. Firstly, Mr Wylie said that he had been in Dunwood on more than one occasion when blasting took place in connection with the tunnelling operations. He explained that the vibration effects of such blasting were apparent in the property; the table would wobble and once some plates fell off the wall. I accept that evidence. When he first inspected the bungalow, Mr Morris felt that this vibration was a significant factor suggesting that construction of the tunnel could have caused the damage. I consider it was reasonable for him to have reached that conclusion.
24. Secondly, the main reason why Mr Kavanagh changed his original view that the tunnelling could have been a cause of the damage was his discovery that the existing ground comprised clay and mudstone. That argument was not supported by any geologist's evidence; it is inconsistent with the local authority's stance in its memorandum dated 25 September 1992 that some settlement could have taken place at Shaft 9 and it is also inconsistent with Mr Kavanagh's acceptance at the end of his evidence that tunnelling did contribute to the damage.
25. Thirdly, Mr Kavanagh stated in re-examination that he would have expected some damage to have been caused to Dunwood as a result of the dry weather conditions in 1976, whereas the claimant and Mr Wylie were both adamant that, before the respondent's drainage works started in 1988, the building had been free of structural damage. Both those gentlemen had attended at the property on a regular basis for several years prior to 1988. I bear in mind that neither is professionally qualified, nor – for understandable reasons – were they able to produce any contemporaneous notes or other material to confirm their recollection. Nevertheless, having seen and heard them both giving evidence, I am satisfied that it is reliable on this point. This, again, suggests that dry weather conditions were not the cause of the damage.
26. I therefore find that the damage in the vicinity of the north-east corner of Dunwood, recorded by Mr Morris in his report dated 9 November 1990, and illustrated in red on his plan numbered L1166, was caused by the laying of the Shaw Main Outfall Sewer.
27. For completeness, I should mention that the respondent criticised the failure of Mr Wylie to allow its representative to survey Dunwood before the works commenced. It is clear, however, that no approach was made directly either to Mr Wylie or to the claimant, nor was the request ever put in writing. Accordingly the matter is, in my view, of little significance.
28. The parties are invited to make submissions as to the costs of this preliminary issue and a letter accompanying this decision sets out the procedure for making submissions in writing.

Dated: 7 June 2001

(Signed): N J Rose

ADDENDUM

29. The claimant seeks his costs incurred in connection with the second preliminary issue. The respondent contends that the question of costs should be deferred until final determination of the matter.
30. The second preliminary issue has been determined in the claimant's favour and there is no reason why the claimant should be deprived of his costs in that connection. I therefore order that the claimant shall recover his costs of the second preliminary issue against the respondent. Such costs are to be agreed or in default of agreement assessed on the standard basis by the Registrar of the Lands Tribunal in accordance with the Civil Procedure Rules.

Dated: 7 June 2001

(Signed): N J Rose