England and Wales Lands Tribunal

[2002] EWLands LCA_146_1998 (01 August 2002)

LCA/146/1998

LANDS TRIBUNAL ACT 1949

COMPENSATION - chalet park - claim for loss resulting from burst to pumping main - claim depending on evidence of claimant - such evidence held to be unreliable - nil compensation awarded - Water Industry Act 1991, Schedule 12 para 2.

IN THE MATTER of a NOTICE OF REFERENCE

BETWEEN BERNARD JOHN GERALD HODDER Claimant

and

SOUTHERN WATER SERVICES LIMITED Respondent

Re: Happy Valley Holiday Camp

Warden Bay Road

Leysdown

Sheppey

Kent

Before: N J Rose FRICS

Sitting in public at 48/49 Chancery Lane, London WC2A 1JR

on 17-19 June 2002

Andrew Kinnier, instructed by John Copland and Son, solicitors of Sheerness for the Claimant.

Charles Taylor, instructed by Ms F J Chantrey, solicitor with Southern Water Services Limited for the Respondent.


 


DECISION

1. This is a reference to determine the compensation payable under paragraph 2 of schedule 12 to the Water Industry Act 1991 ("the Act") to the claimant, Mr Bernard John Gerald Hodder for loss or damage caused to the Happy Valley Holiday Camp, Warden Bay Road, Leysdown, Sheppey, Kent ("the subject property") as a consequence of bursts to a pumping main operated by the respondent, Southern Water Services Limited ("Southern Water").
2. Mr Andrew Kinnier of counsel appeared for the claimant. He called two witnesses of fact, namely the claimant and his daughter, Miss Ruth Sarah Violet Hodder and one expert witness, Mr J R Spacey, FRICS, FAVLP, senior partner of Messrs Porters, chartered surveyors of Maidstone. Counsel for the respondent, Mr Charles Taylor, called four factual witnesses, Ms M L Flemington, Mr A Ogden, Mr A Cooper and Mr P Taylor, together with one expert witness, Mr J D Marshall, MA MRICS, a director of Humberts Leisure Limited based at their Brighton Office.
3. The claim arises from an alleged failure by Southern Water adequately to reinstate the subject property following the completion of repairs to the pumping main after a burst in November 1992, subsequent bursts in November/December 1993 and the relaying of the main in 1994. The notice of reference to this Tribunal was dated 18 December 1998. It indicated that the approximate amount of the claim was £40,000. On 7 March 2000 Mr Hodder filed a statement quantifying the claim at £92,221.89 plus accrued interest of £22,665.15. Southern Water consider that no compensation is payable.
4. I inspected the subject property in company with representatives of the parties on 10 July 2002. In the light of that inspection and the evidence I find the following facts. The subject property is situated on the outskirts of Leysdown-on-Sea on the Isle of Sheppey. Sheppey has been a holiday area since the early 1950s and now has approximately 7,000 chalets and caravans on about 56 sites. The sites operate on a seasonal basis between March and October and are mainly let to Londoners with use concentrated at the weekends. Leysdown is one of the main centres on the island for the caravan and chalet trade.
5. The subject property is situated on the western side of Warden Bay Road at its southern end close to the junction with Leysdown Road, which is the main route into the village centre. The park is situated partly along the line of the Sheppey light railway and extends to approximately 1.16 hectares (2.86 acres). There are approximately 54 plots fronting onto a spine road; a club house; another house built about 8 years ago for use as warden's accommodation; a recreation field and further accommodation land.
6. Since 1990 Mr Hodder has owned the freehold interest in the whole of the subject property apart from a short stretch of access road leading directly to the site from Warden Bay Road. He is responsible for maintaining that access road and has a right of way over it "for all purposes and at all times".
7. The property was initially developed as a chalet park in the mid 1950s. The various plots and concrete chalet bases are each let on a lease for just under 21 years. Most leases extant in 1992 were for a term of years expiring in about 1998. The leases provide for an annually renewable ground rent together with a service charge. They are usually sold for a premium, which reflects the value of the chalet building on the site. On assignment the lessor – Mr Hodder – is entitled to 10 per cent of any premium received.
8. Although the planning consent for the site was varied in 1994 to allow it to be opened from 23 December to 2 January inclusive as well as from 1 March to 31 October inclusive, each lease only allows the property to be used for holiday purposes between 1 March and 31 October.
9. Southern Water entered the site on 20 November 1992 to repair the burst main. During the course of those repairs, which lasted for a few days, a surface water pipe at the bottom end of the site was hit and ruptured. The repairs involved the use of heavy goods vehicles. The movement of those vehicles caused damage to the spine road and the recreation field.
10. On 1 December 1992 a representative of Southern Water, Mr Cooper, met Mr Hodder at the subject property to discuss the works of reinstatement that were required. Mr Hodder was assured that the site would be reinstated to its previous condition before the commencement of the holiday season in March. He was told, however, that it would not be possible to reinstate the site in the next couple of months because of the poor weather conditions. Southern Water's contractors, Taylor Brothers (Sheppey) Limited ("Taylors") were instructed to carry out the necessary works of reinstatement. When Mr Taylor of that company first arrived on site in February 1993 Mr Hodder refused him entry. Towards the end of that month Mr Hodder agreed to let Taylors proceed, provided steel sheets were placed over some newly laid concrete to shield it from the weight of the vehicles. Mr Taylor agreed with Mr Hodder to vary the works originally proposed, in that Taylors would supply more materials and Mr Hodder would roll the entire length of the road. Taylors levelled the recreation area, but the field was not re-turfed until the following year.
11. In December 1993 there was another burst on the site and Mr Taylor attended with representatives of Southern Water. At that time Mr Hodder did not allow Mr Taylor access to his land for any work to be undertaken. A magistrates' warrant was then granted and Mr Taylor entered the site accompanied by Southern Water's specialist contractors, Pipeworks Limited and Docwras Ltd, in order to effect the necessary repairs.
12. Southern Water's contractors entered the subject property again in March 1994 to relay the entire length of the pumping main through the site. This entry also required a magistrates' warrant.
13. In evidence Mr Hodder said that he became very worried that the road repairs would not be done in time for the new holiday season in March 1993. He therefore decided that he had to start the work himself in order to be ready to open in time. Because the road was so churned up it had to be completely dug out. From 14 to 19 December 1992 he did this work with one other man. From 27 December onwards he worked with four other men including his son David. They started from the entrance end of the site and dug out the road by hand. Once they had dug out at least 80 tons of wet clay and mud they renewed the kerbs to the road which had also been broken. Mr Hodder ordered lorry loads of planings to lay on the section of the road that he had prepared.
14. In February 1993, Southern Water arrived with Taylors, who had brought with them a heavy piece of machinery. Mr Hodder refused them entry onto the site as the roadway nearest the entrance had been recently laid. Southern Water then obtained permission from the owner of adjoining land to bring their machine over the field on to the end of the site so that they could carry out the work. Taylors brought on 20 ton lorries containing type 1 material and drove them down the freshly laid road which Mr Hodder and his men had made. As a result the road began to sink again. Because Mr Hodder had laid planings the sinkage was not as bad as when the road was originally broken up, but the surface was still left somewhat uneven. Taylors then started laying type 1 from the bottom of the site upwards towards the top.
15. Mr Hodder said that at first the new road appeared to be a suitable replacement. By Easter 1993, however, when the chalet owners started using their chalets on a regular basis, problems started to arise. Even small cars driving up and down the road at slow speeds started to lift up the type 1, revealing big stones which became loose and posed a health hazard to site residents. Mr Hodder said that ever since the road was relaid by Taylors he received a steady stream of complaints about people falling on the loose and uneven road surface; problems with prams and wheelchairs; dust and stones being flicked up causing irritation and injury and a variety of other serious health complaints which had a major impact upon holiday makers using the site. He said that on two occasions holiday makers had been admitted to hospital as a direct result of the inadequate road conditions. Two chalet owners towards the bottom of the site were wheelchair bound and had converted their chalets to accommodate their requirements. As a result of the condition of the road they surrendered the leases of their chalets, as it was impossible for anyone to push a wheelchair up and down the road in its damaged state.
16. Apart from the destruction of the original spine road, the sewage tankers driving through the site following the first pipe burst in November 1992 also caused the concreted area adjoining the club house to break up. Moreover, the recreation field was left uneven and bare of grass and the street lights – including the one which had completely sunk when the leak was first identified – also became unusable.
17. The entrance way to the site comprises a fairly narrow road, adequate for one wide vehicle only. Earlier in 1992 Mr Hodder had completely resurfaced this roadway so that it was freshly levelled and tarmacadamed. He said that, although this road did not have any formal guttering, in practice any excess rainwater would drain off it over the concreted area and then soak away to adjoining grass. Where the heavy tanker lorries drove down the road the tarmac sank. As a result, whenever it rains heavily, deep rainwater puddles collect and sometimes completely cover the entrance road in places. This means it is impossible to walk on and off the site without one's feet becoming wet. This is a problem for chalet owners, in addition to the large clouds of dust kicked up by passing cars as a result of the loose and uneven spine road in the summer months and which made it impossible for holiday makers to enjoy lying outside their chalets, making barbecues or leaving their front doors and windows open.
18. Mr Hodder considered that these various problems substantially affected the takings at his clubhouse, which is situated towards the front of the site. It functions mainly as a bar and also sells tea, coffee and food.
19. Mr Hodder's total claim was made up as follows:

		£
1.	Road repairs 1992/93	16,269.39
2.	Repairing holes and sweeping broken-off stones from surface 1993/98	4,800.00
3.	Making good road inadequately repaired by Southern Water's contractors	9,593.75
4.	Loss of chalet rents 1992/98	22,500.00
5.	Loss of profits from clubhouse 1992/99	15,750.00
6.	Repairs to site entrance road	9,400.00
7.	Repairs to concreted area	6,168.75
8.	Replacement of street lights	2,740.00
9.	Making good recreation field inadequately reinstated by Southern Water's contractors	5,000.00
	Total	92,221.89

20. Items 6 to 9 relate to works which have not yet been undertaken. Interest totalling £22,665.15 is claimed in respect of items 1 to 5.
21. Mr Marshall inspected the subject property on 18 July 2000. He examined a number of files containing purchase invoices and chalet leases and assignments at the offices of Mr Hodder's solicitors on 16 October 2000. He asked to re-visit the property on that day, but was refused. He also viewed a number of photographs of parts of the subject property which had been taken before he was instructed.
22. On the basis of this information and the results of his planning inquiries, Mr Marshall did not consider that the value of Mr Hodder's freehold interest had been depreciated as a result of the matters complained of, nor that he had suffered any loss or damage. Mr Marshall pointed to the absence of any evidence to support the large amount of time allegedly spent by Mr Hodder and his men on digging out the road. He did not consider that the rate at which chalet leases were renewed between 1993 and 1999 – when the spine road was finally covered in tarmac – was unusually low, given the size of premiums charged and the general level of confidence in the economy at the time. In particular, the fact that most chalet leases were coming to an end in 1998 was highly significant. These leases provided that the chalets would revert to the landlord; in effect the chalet owners would have to re-purchase their buildings on taking a new 21 year lease.
23. So far as loss of profits from the clubhouse was concerned, Mr Marshall said that he had been unable to reconcile the disclosed invoices with the cost of sales figures in the accounts. Moreover, the operation of the club appeared to be contrary to the extant planning permission. This restricted the use of the clubhouse to occupiers of chalets on the subject land, whereas in fact some 80 per cent of the customers did not fall within that category. There was nothing to suggest that an application to remove the planning restriction by way of a certificate of lawful use would have been successful at the relevant time.
24. In Mr Marshall's opinion, the provision by Southern Water's contractors of type one material to reinstate the road was appropriate and represented a betterment over the probable pre-existing position. This betterment would have offset a number of minor points, such as damaged kerbs and a street light that may not have been directly reinstated. The existing condition of the field was a consequence of Mr Hodder's failure properly to water the new turf, coupled with the poorly drained nature of that area. No evidence had been produced to support Mr Hodder's suggestion that there was a quantity of top-soil on the site, which had been contaminated by Southern Water's activities, nor to support the claimed cost of continually sweeping the road surface. Mr Marshall considered that the entrance road was subject to regular heavy traffic, including deliveries of building materials required to erect the warden's house and alcohol to the club house. Consequently, there were no grounds for attributing the damage to this entrance road to Southern Water's tankers. As for the cracks in the concrete area, no repair works would be required if Mr Hodder finished it in tarmac, as he had now done to all the remaining roadway areas.
25. The amounts claimed have been calculated by Mr Hodder. His expert witness, Mr Spacey, was not instructed until June 2001. Mr Spacey therefore based much of his evidence on information he had been given by Mr Hodder. In the light of that information he considered the sums in question were reasonable.
26. Miss Ruth Hodder produced a brief witness statement. She confirmed that the contents of her father's evidence were true so far as they were within her knowledge. Since 1997/98 she has played an active part in helping her father, particularly with bookkeeping. Her involvement with the subject property between 1991 and 1997 consisted mainly of occasional work behind the bar at the club.
27. Mr Hodder referred to witness statements from eight people who had occupied chalets at the site in the period in question, which contained descriptions of their personal experiences. However, although these statements were put in the trial bundle on the basis that the authors would be called to give evidence, in fact none of them were called.
28. There is thus no evidence before me from a single independent witness to corroborate Mr Hodder's description of the interference which was caused to the amenities of the chalet owners or of the works which he says he carried out. Nor are there any wage slips or other evidence to prove that the time claimed to have been spent on repairing the road by Mr Hodder and his men was actually so spent.
29. Moreover, in a number of instances Mr Hodder's evidence was inconsistent with other evidence that was available. Firstly, although he claimed £16,269.39 for works, plant hire and materials between 14 December 1992 and 1 March 1993, his accounts for the year ended 30 April 1993 showed total expenses on repairs were only £3,635. Secondly, he claimed that from 1993 until the beginning of 1999, when he covered the spine road with tarmac,

"no one new came onto the site at all over the whole of that period with perhaps the odd very minor exception here and there."

In fact, the documentary evidence available suggests that at least nine people acquired chalets during that period. Thirdly, invoices were produced to show that Mr Hodder purchased 40 tons of planings, whereas he claimed to have purchased 120 tons. Finally, he said that he had paid £14,200 to Gazelle Associates Limited in 1999 for recovering the levelled road area with type one material. He produced in support of this claim an undated, manuscript invoice. There were no receipts for that payment, which Mr Hodder claimed was made with cash which he had accumulated at his home. At the same time, however, he suggested that his inability to mitigate his loss by tarmacing the road at an early date was due to fact that he had always had a substantial overdraft.

30. I have not overlooked the fact that Mr Hodder suffers from the disadvantage that he is unable to read or write. Having heard him giving evidence at length, however, it is clear that he is a competent businessman, who is able to understand figures and who employs professional advisors to whom he passes "all the paperwork". In those circumstances, I do not consider that the various inconsistencies to which I have referred can be attributed to Mr Hodder's disability.
31. In claims for compensation the onus is on the claimant to substantiate his loss. This claim depends on the evidence of Mr Hodder. I regret to say that I have come to the conclusion that he is an unreliable witness, whose evidence cannot be accepted without independent corroboration. In the absence of such corroboration the claim for compensation fails.
32. For completeness, I should add that in September 1998 Southern Water made an unconditional offer to relay the area of the recreation field which has sunk along the line of the new pipe. That offer is still open for acceptance and cannot therefore properly form part of the claim.
33. A letter on costs accompanies this decision which will take effect when, but not until, the question of costs is decided.

Dated 1 August 2002

(Signed): N J Rose

ADDENDUM

34. I have received written submissions from the respondent, seeking its costs. The claimant has made no submissions on the subject.
35. The respondent is clearly the successful party and I am aware of no reason why there should be a departure from the general rule that the successful party receive its costs.
36. Accordingly, the respondent shall recover its costs of the reference from the claimant. Such costs, if not agreed, are to be assessed on the standard basis by the Registrar of the Lands Tribunal in accordance with the Civil Procedure Rules.

Dated: 2 September 2002

(Signed) N J Rose