Bole & Anor v Huntsbuild Ltd & Anor [2009] EWHC 483 (TCC)

[2009] EWHC 483 (TCC)

Case No HT-08-46

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

HIS HONOUR JUDGE TOULMIN CMG QC

St Dunstan’s House

Venue 133-137 Fetter Lane

Date 13/03/2009

London, EC4A 1HD

Before

HIS HONOUR JUDGE TOULMIN CMG QC

Between

(1) MR ALEXANDER JOHN McMINN BOLEClaimant

(2) MISS STEFANIE VAN DEN HAAKClaimant

Mr Daniel Crowley (instructed by Plexus Law) for Claimants

for The First Defendant did not appear and was not represented

Mr Riaz Hussain (instructed by Browne Jacobson) for 2nd Defendant

Hearing Hearing dates: 1-4 & 16 December 2008

Judgment

HHJ John Toulmin CMG QC :

[1]This case concerns a claim for loss and damage to a house built at 52 Low Road, Little Stukeley, Huntingdon, Cambridgeshire (the property) by the First Defendant contractors, Huntsbuild Ltd (Huntsbuild). There was an alternative claim for diminution of value but this has not been pursued. The property was purchased by the Claimants in late September 2001. I shall (with her agreement) refer to Mrs Bole by her married name although the action is brought by her in her unmarried name.

[2]The property is a substantial detached house with most attractive views over the surrounding countryside. Prior to the construction of the property, a willow tree and a row of conifer trees were removed from the site before excavations were carried out and foundations to the property were laid by Huntsbuild. In carrying out the work Huntsbuild relied for the construction of the foundations on advice, including drawings, from a firm of structural engineers, Richard Money Associates (RMA), whose principal is Richard Money. RMA are the Second Defendants. Unfortunately, as is agreed by the experts, Mr Allen for Mr and Mrs Bole and Mr Edward for RMA, cracking has occurred to the property caused by heave resulting from the inadequate depth of the foundations on which the house was built.

[3]Mr and Mrs Bole bring claims against Huntsbuild for breach of contract and for breach of the Defective Premises Act 1972 (DPA) claiming that it failed to build the house in a workmanlike manner. Originally they also brought a claim against Huntsbuild in negligence. They are not pursuing this aspect of the claim but are relying on the claim in contract.

[4]Mr and Mrs Bole bring their claim against RMA only under the DPA claiming that RMA failed to carry out its work in a professional manner. Against both the builder and the structural engineers they claim that as a consequence of these alleged failures under the Act, the property, as built, was and is unfit for habitation.

[5]Huntsbuild (who have taken no part in the trial) contends in its defence that it was under an obligation to construct the foundations in accordance with the specification and in accordance with RMA’s drawings 98/1807-4.02 as revised in December 1999 and that it did so. It denies that the property as built was unfit for habitation and therefore that there was a breach of the Defective Premises Act 1972.

[6]RMA admits that it gave relevant advice for the purposes of Section 1 of the DPA and that it therefore owed a duty to Mr and Mrs Bole to carry out the work in a professional manner in order to comply with the DPA, but it denies that the work was not of a professional standard. It claims that the depths specified in the drawings were minimum depths. It also contends that it was entitled to assume that Huntsbuild would carry out the recommendations in the Site Report which accompanied the drawings, and would a) look for evidence of roots and desiccation while excavating, b) lay the foundations at least 0.5m below the last roots and/or signs of desiccated clay and c) understand that since there was potential for heave, precautions against heave were essential. In so far as compliance with the National House Builders Council (NHBC) guidance was required, it claims that its Site Report expressly directed Huntsbuild to carry out its work to NHBC requirements.

[7]RMA further contends that on a proper construction of the DPA, the dwelling was fit for human habitation as built and is a functioning and serviceable residence. It points particularly to the fact that Mr and Mrs Bole have been living in the property continuously since they bought the property in 2001, and continue to do so. In relation to the remedial works that need to be carried out, RMA contends that the remedial works will only involve structural cracking repairs and redecoration and will not require underpinning. Mr and Mrs Bole contend that underpinning needs to take place to stabilise the property.

[8]In its re-amended pleading, RMA also contends that not all the alleged defects relate to movement were caused by inadequate foundations. In this respect the parties have managed to reach agreement and I exclude from my consideration those defects which, it is agreed, were not caused by inadequate foundations.

[9]I heard oral evidence of fact from Mr and Mrs Bole, Mr Money, and briefly from Mr Hubbard of Cunningham Lindsey, loss adjusters, who also took some photographs. I conclude that all the witnesses were doing their best to assist the court. Mr Allen and Mr Edward gave expert evidence. Although in due course I shall have to resolve the differences between them, I should emphasise at this stage that the way in which they have co-operated to reach a substantial measure of agreement has not only greatly assisted the court but saved the parties a significant sum in costs.

[10]The Issues The following issues have been specifically identified by the parties: i) Was Huntsbuild in breach of contract or in breach of the Defective Premises Act 1972? ii) Did RMA carry out its work in a professional manner in accordance with section 1 of the DPA? iii) Was the property fit for habitation within section 1 of the DPA? iv) What loss and damage have the Claimants suffered? In particular, if the Claimants are entitled to recover against one or both defendants, i) For which remedial scheme can they recover? ii) What general damages are recoverable for distress and inconvenience? The Law The Defective Premises Act 1972

The Law

[11]The preamble to the DPA states that its purpose is “to impose duties in connection with the provision of dwellings and otherwise to amend the law of England and Wales as to liability for injury or damage caused to persons through defects in the state of premises.”

[12]The Second Defendant took a point on limitation throughout the proceedings and only abandoned it, in my view rightly, in Mr Hussein’s final speech, although previously in correspondence the defendant’s solicitors had, again rightly, conceded that the action was brought “just within the limitation period.” Since it has been fully argued I shall set out my conclusions.

[13]Section 1 (5) of the DPA provides:

“(5) Any cause of action in respect of a breach of the duty imposed by this Section shall be deemed, for the purposes of the Limitation Act 1939, the Law Reform (Limitations of Actions, and etc) Act 1954 and the Limitation Act 1963 to have accrued at the time when the dwelling was completed…”

[14]Although the cause of action may arise earlier, see Alexander v Mercouris

[1979] 1 WLR 1270

at 1277, on a proper construction of this sub-section, time only begins to run for the purpose of limitation from the time when the dwelling was completed [or later in the circumstances set out later in the sub-section].

[15]In these circumstances, on the facts of this case, the Second Defendant rightly conceded that the claim was brought within the limitation period. In so far as I reached a different conclusion on the law in Catlin Estates v Carter Jonas

[2005] EWHC 2315 (TCC)

after very limited argument, the conclusion and reasoning in this judgment supersede it.

[16]The duty imposed by the DPA is set out in Section 1:

“Section 1 (1) A person taking on work for or in connection with the provision of a dwelling (whether the dwelling is provided by the erection or the conversion or enlargement of a building) owes a duty – i) If the dwelling is provided to the order of any person, to that person and: ii) Without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling… to see that the work which he takes on is done in a workman-like or, as the case may be, professional manner, with proper materials and so that, as regards that work, the dwelling will be fit for habitation when completed.” i) If the dwelling is provided to the order of any person, to that person and: ii) Without prejudice to paragraph (a) above, to every person who acquires an interest (whether legal or equitable) in the dwelling… to see that the work which he takes on is done in a workman-like or, as the case may be, professional manner, with proper materials and so that, as regards that work, the dwelling will be fit for habitation when completed.”

[17]I note in passing that the exclusion in Section 2, in the case of a recognised scheme, does not apply since recognition of the NHBC Scheme lapsed for the purposes of Section 2. (see the commentary on Thompson v Clive Alexander

[1992] 59 BLR 77

at 79)

[18]It may be thought that the question of whether or not the house was unfit for habitation when completed would be a simple question of fact, but there is clear guidance as to how the issue should be approached in the Law Commission Report (Law Com Nº.40) entitled ‘Civil Liability of Vendors and Lessors for Defective Premises’ published in December 1970 under the chairmanship of Sir Leslie Scarman, (with draft Bill attached) which led directly to the DPA, and in the decided cases. I shall also refer briefly to the definition in the Housing Act 1985.

[19]Referring to the common law concept of fitness for human habitation, the Law Commission Report explains in Paragraph 13 “The implication as to fitness of purpose is most readily made in the case of a dwelling house, and in such cases, unless the surrounding circumstances clearly exclude it, the implication is that the house will be fit for human habitation”. Footnote 4 refers to the decision in Lynch v Thorne

[1956] 1 WLR 303

(CA) to which I shall also refer.

[20]Paragraph 26 of the Report headed “Our Recommendations” sets out the purpose of the proposed legislation; “26. Amendment of the law should be directed at improving the legal position of the purchasers of dwellings and should, in our view, be designed to achieve the following results:- a) That a builder of a dwelling (i.e. anyone who provides a dwelling by constructing a new building or converting or enlarging an existing one) should be placed under a duty, similar to his common law obligations, to build properly and should not be able to contract out of this duty: ” a) That a builder of a dwelling (i.e. anyone who provides a dwelling by constructing a new building or converting or enlarging an existing one) should be placed under a duty, similar to his common law obligations, to build properly and should not be able to contract out of this duty: ”

[21]Paragraph 26 goes on to recommend that the same duty should also be imposed in similar circumstances on professionals who take on work for or in connection with the provision of a new dwelling (or converting or enlarging an existing one). Pursuant to Paragraph 26, Paragraph 31 of the Report specifically makes the recommendation that the duty should be placed on professional men who provide designs, plans and specifications. The Report notes that professionals would then also be under an obligation to do the work with all due care and skill.

[22]Paragraph 34 in the Report is crucial in construing the phrase “unfit for habitation” in Section 1 of the DPA. “34. It may be that proper work with good materials will usually produce a house which is fit for habitation but it is possible to imagine cases in which, however skilful the work and however good the materials, there is some defect of design or lay-out which makes the resulting dwelling unsuitable for itspurpose” (my underlining)

[23]At Paragraph 33 the Report sets out that each of the three requirements of a) good workmanship, b) proper materials and c) fitness for habitation, should be met.

[24]The Report on which the Act was based concluded, therefore, that there should be a statutory remedy for unfitness for habitation which could not be excluded by contract in the circumstances of Lynch v Thorne. In that case the circumstances were outlined by Lord Evershed MR “…one of the rooms on the first floor is, as it turns out, not weatherproof: it had admitted damp to such an extent that the plaintiff has been unable to use it as his son’s bedroom. The plaintiff may say (and for the purposes of this judgment I will say) that quoad that room the house has turned out to be uninhabitable or not fit for human habitation”.

[25]In Batty v Metropolitan Property Realisations

[1977] 7 BLR 1

at page 8 Megaw LJ held that the unfitness for human habitation could refer to prospective consequences as well as to current defects. He said, “I am satisfied on the facts of this case, that the warranty, on its true meaning, was broken. The warranty would be broken if the house is unfit for habitation and is so unfit by reason of defective support from the adjoining land which a suitably qualified expert could have discovered before the building of the house was undertaken. The Judge has found, and in my view has unassailably found, that the lack of fitness for habitation – the instability of the hillside which spelled not far distant doom of its house from the onset of its life – could have been discovered by expert examination.”

[26]Batty was analysed in detail by the House of Lords in D + F Estates v Church Commissioners for England

[1989] 1 AC 177

and its conclusions were doubted on the issue of causation. At pages 193 to 195 Lord Bridge analysed the history of the legislation. He referred to the crucial distinction at Paragraph 34 of the Law Commission Report between, as he put it, “dangerous defects” and “defects of quality” and the recommendation carried into law by the DPA, that for the limitation period set out in the Act, the right of action for defects of quality should exist against a builder who builds to the order of the client and in the other circumstances set out in the DPA.

[27]In Andrews v Schooling

[1991] 3All ER 723

at 729 Balcombe LJ held that “If when the work is completed, the dwelling is without some essential attribute e.g. a roof or a damp course – it may well then be unfit for human habitation though the problems resulting from the lack of that attribute have not become patent. A house without a roof is unfit for habitation even though it does not rain until some months after the house has been completed”.

[28]In Thompson v Clive Alexander [1992] 59 BLR at 87 the court affirmed that the Act was designed to provide a remedy for defects which render a house unfit for habitation and not for trivial defects.

[29]Bayoumi v Protim Services

[1996] 1 WLR 785

was another case which concerned inadequate damp-proofing which was found to render the property unfit for habitation. At page 790 Swinton Thomas LJ said “The words of the Section are quite plain. The question that a Judge has to pose, in my view, is this; has the plaintiff proved, on the balance of probability, that the defendant’s failure to do his work in a workmanlike manner has caused the property to be unfit for human habitation?”

[30]In Mirza v Bhandal [Judgment 22 April 1999] Latham J had to consider the question of inadequate foundations being contrary to Section 1 of the DPA. The case concerned an allegation of failure to pay any or any adequate heed to the soil conditions and the position of existing trees. At page 13 of his judgment, after citing Andrews v Schooling, Latham J held “although the effects of defective foundations are not as immediately dramatic as the lack of a roof, it seems to me that the principle remains the same. The inadequacy of the foundations was inevitably going to produce a situation in which the house would collapse. I do not consider that a house with foundations as inadequate as that can be described as fit for human habitation when completed.”

[31]Alderson v Beetham

[2003] 1 WLR 1686

is a case concerned primarily with limitation. In that case it was conceded that the flats were not fit for human habitation due to damp.

[32]In Catlin Estates v Carter Jonas the facts were very different to the present case. Although there were significant defects, I found in that case that the Claimants succeeded on their primary claims in contract and tort but that Mr Catlin failed on his secondary claim under the DPA. Each case must be considered on its merits. In any event, as I pointed out at Paragraph 298 of the judgment, I had had no authorities cited to me in that case.

[33]Although the Housing Act 1985 does not refer to the DPA and is therefore of only limited assistance, it is instructive to note that S 604 (i) provides the following definition of unfitness for human habitation for the purposes of that Act.

[34]“604 (1) In determining for any purpose of this Act whether premises are unfit for human habitation regard shall be had to their condition in respect of the following matters - Repair Stability Freedom from damp Internal arrangement Natural lighting Ventilation Water supply Drainage and sanitary conveniences Facilities for the preparation of cooking of food and disposal of waste water and the premises shall be deemed to be unfit if, and only if, they are so far defective in one or more of these matters that they are not suitable for occupation in that condition.” Repair Stability Freedom from damp Internal arrangement Natural lighting Ventilation Water supply Drainage and sanitary conveniences

Facilities for the preparation of cooking of food and disposal of waste water

[35]This provides a useful check list as to the type of defects which on the facts in a particular case may be so fundamental as to be considered to render a property unfit for habitation under the DPA. In saying this I acknowledge immediately that the purpose of the Housing Act 1985 is “to consolidate Housing Acts (except for the provisions consolidated in the Housing Associations Act 1985 and in the Landlord and Tennant Act 1985) and certain related provisions, with amendments to give effect to the recommendations of the Law Commission”. That purpose is different to that of the DPA. The purpose of safeguarding the rights of tenants is different to that of ensuring that property as newly built or adapted should be fit for habitation.

[36]I note that under the Housing Act 1936 (the predecessor of the 1985 Act) the test of fitness for human habitation was held by the House of Lords to be wider than that of a house being in such a condition structurally or otherwise as to be in imminent danger of collapse or need for demolition. See the speech of Lord Russell of Killowen in Summers v Salford Corporation

[1943] AC 283

at 291, whose reasoning is also valuable in considering cases under the DPA and similar to that in Lynch v Thorne.

[37]On the basis of the authorities, it is not necessary, as contended for by the Second Defendant, that a finding that the premises are in imminent danger of collapse is a necessary precursor to making a finding under the DPA that a dwelling house is unfit for human habitation.

[38]I conclude on the authorities that I must construe the Act with the following considerations in mind: i) The finding of unfitness for habitation when built is a matter of fact in each case. ii) Unfitness for habitation extends to what Lord Bridge described as “defects of quality” rendering the dwelling unsuitable for its purpose as well as to “dangerous defects”. iii) Unfitness for habitation relates to defects rendering the dwelling dangerous or unsuitable for its purpose and not to minor defects. iv) Such a defect in one part of the dwelling may render the dwelling unsuitable for its purpose and therefore unfit for habitation as a dwelling house even if the defect does not apply to other parts of the dwelling. This is also the case under the Housing Act – see Summers v Salford Corporation. v) The Act will apply to such defects even if the effects of the defect were not evident at the time when the dwelling was completed. vi) In considering whether or not a dwelling is unfit for habitation as built one must consider the effect of the defects as a whole. Underpinning

[39]One of the issues in this case relates to the reasonableness of underpinning to resolve the continuing problem of heave. While each case must be considered on its own facts, the following is instructive. In Eiles v London Borough of Southwark

[2006] EWHC 1411

[TCC] Ramsey J had to consider, among many other issues, whether underpinning could be justified in relation to damage of Category 2 in the BRE Digest 251 (see Paragraph 52 below). He concluded at paragraph 141 of his judgment “I do not accept that there would need to be damage in excess of Category 2 in BRE Digest 251 to justify underpinning at the front. Whilst such damage might, generally, be sufficient to justify underpinning, the whole purpose of underpinning is to prevent further damage. Therefore even if there is damage below Category 2, the cost of underpinning might be recoverable if it could be shown that continuing significant damage was likely.” In that case Ramsey J allowed the claim for underpinning on the basis that there was a likelihood of continuing significant future damage.

Damages for Distress

[40]Since the parties have agreed the sum of £4,500 as general damages, subject to liability, I shall deal with the issue briefly. The correct approach to this head of damage is also set out by Ramsey J in Eiles v London Borough of Southwark. Ramsey J cited Watts v Morrow

[1991] 1 WLR 1421

, where Bingham LJ held that general damages were recoverable for distress but were limited generally to damages for physical inconvenience and discomfort and related mental suffering. In Eiles the period involved was from 1998 to October 2004. The claim was made in 2000. Ramsey J awarded £2250 compensation being £1,000 to cover the period of the first five years and £1,250 for 2003 and 2004.

The NHBC Standard & BRE Digest 412

[41]Underlying the facts of this case there are two industry-wide standards to which reference must be made, NHBC Standard Chapter 4.2 entitled “Building near trees” and the BRE Standard setting out the classification of the relative severity of damage to dwellings caused by tree roots.

[42]The introduction to NHBC Standard Chapter 4.2 (“Standard 4.2”) says that “This chapter gives guidance for common foundation types to deal with the hazard and includes suitable foundation depths which have been established from field data, research, NHBC data and practical experience. The depths are not those at which root activity, desiccation and ground movement are non-existent but they are intended to provide an acceptable level of risk. However, if significant quantities of roots are unexpectedly encountered in the base of the trench, the excavations may need to be deepened.”

[43]Under “Provision of Information”, Standard 4.2 – D6 emphasises that all relevant information needed for the completion of the sitework is stated clearly and unambiguously and is readily available to all concerned. The Standard goes on, “all necessary dimensions and levels should be indicated and related to at least one benchmark and reference points on site.”

[44]Paragraph 4.2-D7 provides that “Designs and specifications, together with relevant site information shall be distributed to appropriate personnel. Details shall be provided with respect to… dimensions, type and depth of foundations…tree species using English names.”

[45]Appendix 4.2-E under the title “Heave in shrinkable clay soils” provides that in relation to “2. Foundation Depths, where trees or hedgerows are known to have died or are scheduled to be removed, foundations should be constructed on soils capable of supporting the imposed loads. Foundation depths should be derived either:• From Appendix 4.2 C or H or the Foundation Depth Calculator using the actual height of the trees at the time of removal (if the heights are not known, the full mature height should be used) or

• By an engineer in accordance with Technical Requirement R5 from a study of soil conditions.”

[46]Mr Money had to agree that a calculation in accordance with Appendix 4.2C required, in the case of the willow tree taken from what became the centre of the property, minimum foundations to a depth of 3 metres. He also agreed that he did not specify this depth. In the course of his cross-examination Mr Money also had to concede that he did not comply with the NHBC guidelines but used his own different method of calculating the depth of the foundations.

[47]RMA claims that the responsibility in a case of doubt about the appropriate foundation depths is with the builder.

[48]Standard 4.2 – 5.2 requires the foundation depths be in accordance with the design:

“Foundation depths in relation to trees or hedgerows shown on the site lay out should be indicated. …To enable site supervisors to determine foundation depths in these situations the tables in Appendix 4.2H may be used. If in doubt about any of the information either assume the worst conditions or consult an engineer. (my emphasis)”

[49]Reference will also be made to the Building Research Establishment BRE Digest 412. This Digest is respected throughout the construction industry as setting out the significance of the presence of tree roots and the effect of their removal.

[50]The Digest explains “The roots of all vegetation can take water from the soil. The process of water abstraction is drawn by transpiration of water from the leaves resulting in a flow of water from the roots to the leaves. The root systems of trees can extend further and deeper than those of other vegetation thus allowing more extensive and deeper water abstraction. In a clay soil this may result in drying of the soil and consequent soil shrinkage and ground subsidence. Removing a tree may result in ground re-hydration, soil swelling and ground heave.”

[51]Digest 251 [1995 edition] sets out categories of damage from one to five. Reference will be made to the following:

[52]Category 2 -“Cracks easily filled. Recurrent cracks can be masked by suitable linings; cracks not necessarily visible externally, some external re-pointing may be required to ensure weather-tightness. Doors and windows may stick slightly and require easing and adjusting. Typical crack widths up to 5mm.”

[53]Category 3 - “Cracks which require some opening up and can be patched by a mason. Re-pointing of external brickwork and possibly a small amount of brickwork to be replaced. Doors and windows are sticking. Service pipes may fracture. Weather tightness often impaired. Typical crack widths are 5 to 15mm or several of say 3mm.”

[54]Category 4 - “Extensive damage which requires breaking out and replacing sections of walls especially over doors and windows. Windows and door frames distorted. Floor sloping noticeably. Walls leaning or bulging noticeably, some loss of bearing in beams. Service pipes disrupted. Typical crack width of 15 – 25mm but also depends on number of cracks.”

The Facts

[55]On 30 June 1999 Mr Huggins, described both as architect to the Project and as being retained by Huntsbuild as an architectural technician, wrote to Mr Money asking for recommendations relating to the foundations to be used throughout and also the ground floor construction to both the dwellings and garages at two properties which comprised an intended development at Low Road, Little Stukeley, Huntingdon, one of which was purchased subsequently by Mr and Mrs Bole.

[56]The letter noted that some of the existing trees on the site, including the willow trees, were to be removed while other trees, also including willows, would remain.

[57]On 7 July 1999 Mr Money submitted a proposal that for an agreed fee his firm would carry out the following services: i) Visit to site and inspect trial pits excavated by others ii) Sampling of sub-soil where necessary and arranging for testing of soil samples to determine the shrinkability of the soil. iii) Provision of a site investigation report and recommendations with regard to depth of foundations in particular with respect to retained and newly planted trees in the vicinity of the two buildings.

[58]Terms were agreed by Mr Hunt on behalf of Huntsbuild on 19 July 1999. During September 1999 RMA carried out its site investigation and soil sampling.

[59]On 4 October 1999 Mr Money sent his firm’s report and recommendations for the foundations on the site. He said that he was awaiting the soil analysis from Soil Property Testing and that he would confirm minimum depths when the results were received.

[60]The Site Investigation Report said that four trial pits had been excavated and that samples from two of them had been sent for analysis.

[61]The Recommendations were as follows:

“Generally foundations for the new properties may be trench fill and these should be based at a minimum of 1.2 metres below ground level. In the area where the existing trees are to be removed, foundations must be increased in depth to be founded at a minimum of 500mm below the last evidence of roots or desiccation of the clay. Where trees are retained (willows at the front and rear) or where new planting is to be carried out, foundation depths again should be referred to the NHBC tables. The attached sheet shows the minimum depths with respect to these retained trees and the new planting. Generally heave precautions will be required throughout construction and this will be dependant upon the shrinkability of the clay subsoil. On the outer foundations, Claymaster will be required to the inner face of the trench fill and Correx slip membrane on the outer face. Similarly on the internal foundations, Correx slip membrane is required on both faces of the trench fill. A typical detail from Cordek Ltd is shown on the attached sheets… ”

[62]Mr Money said in oral evidence that he had substituted his own instruction because he found roots at a greater depth than the NHBC Standard. However in practical terms this depended on the builder being able to identify 1mm roots (an issue between the experts). Mr Money did not specify foundations of a minimum of 3m depth which would have complied with the NHBC Standard.

[63]Underneath the previously quoted paragraph of the Site Investigation Report, under the heading “Summary minimum depth of foundations”, the Report specified “1.2 metres or 500mm below any dessicated clay or roots. Minimum depth generally as shown on the foundation plan 401 and 402 dependant on soil shrinkability.”

[64]Under “Additional Information”, the Site Investigation Report specified that “Ground conditions noted in the trial pits are assumed to be consistent across site and the contractor should inform the architect or engineer should any variation be observed.”

[65]The Cordek information sheet headed “Deep trench fill standard detail” noted that “further information can be obtained from NHBC Standard Chapter 4.2 Building near trees”.

[66]On 15 October 1999 NHBC wrote to Mr Higgins that RMA’s recommendations would be acceptable if in addition the work was carried out “in accordance with our standards Chapter 4.2”.

[67]Mr Money’s letter dated 4 November 1999, whose purpose was to confirm the minimum excavation depths after seeing the soil analysis, was addressed to Mr Hunt. It enclosed the test results from Soil Property Testing. On the basis of those results, the calculation of the appropriate depth of foundations was made correctly, on the basis of foundation depths for medium shrinkage soil i.e. 31% - 34%.

[68]The letter said:

“I have now completed the drawing showing the minimum foundation depth with respect to trees (4.02) and enclose a copy for your information. This shows the minimum depths as regards to the distances from the trees and also shows the positions where steps could be made in the trench bottom to achieve these depths. You may wish to rationalise the lay-out of depths to make setting out easier on site…”

[69]The letter went on:

“The test samples also indicate a negative liquidity index for the sample taken from the trial pit 1 which was close to the willow tree. This indicates that the clay sample was dessicated and therefore has potential to heave causing damage to the property. The clay heave precautions shown on my sheets will therefore be required and I would suggest that you allow these for both properties.”

[70]The point is made by the Claimants that the letter made no distinction between trees that were to be removed, trees that were to be retained and new trees. Neither the letter nor the drawings referred back to the earlier Report or made reference to the NHBC Standard, and the drawing did not show the minimum depth of foundations required in relation to the trees.

[71]Mr Money thought that another site plan had been issued but I have seen no evidence to contradict the conclusion that 4.02 (as later amended) was the relevant plan. I make the finding that this was the case.

[72]There were temporary planning difficulties. On 19 November 1999 Mr Huggins wrote to Mr Money to explain the position. The letter ended by saying, “It is assumed that the foundation design as indicated by your letter of 4 November 1999 and drawing number 98/1807 – 4.02 remains satisfactory…”

[73]On 20 December 1999 Mr Money replied saying that he had revised the layout plan (Drawing 4.02A) to show the new planting and existing layout. This drawing was issued to Mr Huggins and sent to Huntsbuild. Mr Money wrote to Huntsbuild:

“Further to your letter of 3 December, I have revised our layout plan to show the new planting and existing tree layout as shown on David Brown’s (landscaper) design. This is generally as shown before, although a slight increase in depth is required on the left side of Plot 1 adjacent to the boundary. The remaining depths are as shown. This can be rationalised on site to step at 2.0 metre intervals.”

[74]In relation to compliance with Standard 4.2, Mr Money had to concede that a) The plan did not specify specifically the depth of foundations or level of foundations for trees which had to be removed, b) The plan was not related to a benchmark or to a reference point on site and c) The letter made no reference to the NHBC Standard.

[75]On 26 January 2000 Mr Huggins sent Mr Money copies of various drawings and said that:

“Together with the items supplied by you, these drawings have today been issued to the NHBC and copies have also been forwarded to the Council in the form of an application under the Building Regulations.”

[76]Each drawing was endorsed “To be read in conjunction with information prepared by Richard Money Associates – Consulting Engineers under Job Nº99/1807”

[77]The excavation of the foundations took place between 3 – 6 April 2000. Huntingdonshire District Council Building Control Office inspected the excavations which Huntsbuild had undertaken.

[78]On 20 August 2001 Copley’s, wrote to Huntsbuild’s solicitors wrote to Saunders Roberts, Mr and Mrs Bole’s solicitors to say that the property was shortly to be completed and that this was likely to happen by the end of the month.

[79]In fact completion took place on 26 (or perhaps) 28 September 2001 at a purchase price of £330,000. The Claimants purchased the property from Huntsbuild. An NHBC certificate was issued on the same date to run for 10 years to 26 September 2011. By then Mr Bole had written to Huntsbuild enclosing a snagging list.

[80]The contract between Huntsbuild (as the vendor) and Mr and Mrs Bole (as the purchasers) included the following express terms:

“12. The vendor will at its own expense erect and complete a dwelling house and premises on the property in all material respects in accordance with the specification, plans and elevations seen by the purchaser and in accordance with the requirements of the Local Planning Authority…”

[81]“13. The vendor has registered the property with the National House Building Council and shall comply with the standards of construction prescribed by it and will supply the Purchaser with the Buildmark documentation on exchange of contracts.” The standards of construction prescribed by the NHBC included NHBC Standard 4.2.

[82]There were early problems with cracking. On 12 November 2002 RMA inspected the cracking. Mr Money’s Report dated 14 November 2002 noted cracks of 1.5mm – 2.0mm in the area adjacent to the kitchen door and also to the door to the dining room. Cracking extended through the coving and into the ceiling adjacent to the doorways. Later, the Report noted that “The main cracking on the central wall extends through the plaster and into the block work. The central wall is 12 metres long and, although there are doors at the lower level which allow expansion and contraction, the section of the wall above the doors is continuous as a 12 metre run.” There was also other cracking referred to in the Report.

[83]The Report concluded that the problem was caused by shrinkage and that, after the repairs had been carried out, Mr and Mrs Bole should not expect any further cracking to occur but that there should be visual monitoring.

[84]The remedial works were carried out but did not solve the problem. On 15 August 2003 Mr Money again visited the property. He wrote to Huntsbuild on 18 August 2003 to say:

“The fact that cracking is slightly wider at the top than the bottom points to possible heave movement of foundations and I note from original drawings that a line of Leylandi were roughly located along the line of this wall. If all dessicated material was not removed in excavation, then some re-hydration and heave of the subsoil could occur.”

The letter said that Mr Money had not mentioned this to Mrs Bole as he did not want to worry her unduly.

[85]Mr Money installed tell tails to monitor movement of the cracks. He reported on the 26 September 2003 that “cracking internally and externally increased since last visit.”

[86]Mrs Bole wrote to Mr Hunt (a Director of Huntsbuild) on 1 October 2003 noting her concerns with the cracks. She listed a number of other defects. Among the defects was “4. The garage doors are no longer “lockable” due to these heavy doors not having any support underneath and the hinges being unable to cope with the weight. Locks and fittings no longer meet, leaving the garage unsecured.”

[87]Its clear that despite remedial works, the problem of the cracking continued. Mr Money’s report on 24 November 2003 noted that on 26 September 2003 internal cracking to the ground and first floor was temporarily filled and over painted. Very fine cracks were noted in the rear bedroom.

[88]On 29 November 2003 it was noted that:

“1. Internal cracking continuing to extend in length on ground and first floors. 2. Further cracks developing in the rear wall of the rear en-suite.”

[89]On 10 December 2003 Mr Money wrote to Mr Hunt to explain the current position:

“The tendency since our last visit in September 2003 has been for cracks to open and readings show figures of between 0.2mm and 0.64mm. The degree of movement appears to have accelerated all be it in a small amount in the two months since our last visit and readings. This could coincide with a change in the weather to wetter autumn/winter conditions.”

[90]The letter goes on to say that:

“If heave is occurring this would be expected as rain replenishes the lower subsoil, although I would have expected it to take some time to penetrate the depth of the footings in this area. Expanding clay would lift the footings and supported wall more in the area of the removed trees as this could well result in damage to finishes noted. Secondary cracking would be caused by stresses set up by the initial movement.”

[91]In his letter Mr Money concluded that the degree of disruption and extent of the movement would be dependant on the depth of desiccation below the footings. He said that, if the owners could live with the damage to finishes for some time further, he was sure that movement would cease. At that point repairs could be carried out and the property restored to its original state. Meanwhile temporary repairs could be undertaken to disguise the worst of the damage.

[92]On 6 January 2004 Huntsbuild wrote to Mr & Mrs Bole setting out the substance of Mr Money’s letter. I note that no timescale was put on when the movement would cease.

[93]On 22 March 2005 a firm of independent structural engineers Paul Reading & Partners gave Huntsbuild a second opinion on the cracking. The report was sent to RMA on 28 April 2005.

[94]The Report noted extensive cracking. It concluded:

“3.6 The pattern of the movement and the cracking present was consistent with some heave movement of the foundations having occurred within the central section of the property.”

[95]The Report noted the following matters of potential criticism of RMA:

“3.09 Richard Money Associates drawing number 98/1807-4.02 specifies the minimum foundation depth requirements with respect to the trees to be retained. No increase in depth appears to have been specified on this drawing with respect of trees to be removed.” “3.10 With reference to the NHBC guidelines applicable at the time of foundation design, we consider that deeper foundations should have been specified for some of the foundations, particularly in the central area of the house.” “3.11 The evidence of cracking and movement within the property is consistent with heave movement of the clays in the area of the willow tree removed within the plan footprint of the house. Some heave movement of the clays, within the area of the conifer trees, may have contributed to the movement.”

[96]This Report again gave no indication of how long the movement was likely to continue.

[97]On 12 April 2005 Huntsbuild wrote formally to RMA noting the cracking and saying that they had been advised to inform the Claimants of the problem so that they could notify their insurers and also inform the Second Defendants of a claim. The letter from Huntsbuild to Mr and Mrs Bole (undated) described heave as a “natural phenomenon” but the letter also referred to the possibility of “a mistake in the original construction of your property.” The letter was followed up with a further letter of 21 April 2005.

[98]The Claimants’ insurance company instructed Cunningham Lindsey, Loss Adjusters, to deal with the claim. After visiting the property they endorsed the Report of Paul Reading & Partners. On 11 July 2005 they wrote to the First and Second Defendants holding them liable for the damage and asking them to propose suitable remedial measures to rectify the problem.

[99]Cunningham Lindsey were concerned as to the nature and extent of the remedial works which needed to be undertaken. On 10 November 2005 they wrote to Mr and Mrs Bole:

“In order to confirm the foundations of the property, are, in fact, inadequately constructed as believed, and in order to facilitate the design of necessary foundation enhancements, a ground investigation will be required. As discussed, this will unfortunately necessitate internal excavation works at the focus of the movement to provide sensible results. The small room between the lounge and the kitchen would appear the most appropriate location for these works, which will entail excavations to determine the depth of the underside of the foundations.”

The letter said that they had instructed CET to carry out the necessary investigations.

[100]On 18 November 2005 Cunningham Lindsey also retained a firm, Rust and Kemp, to carry out a level survey. On 15 December 2005 the monitoring records show that there was a crack of 15mm in the tiled panel under the window in the upstairs family bathroom.

[101]CET reported on 20 January 2006. Tests at Borehole 1 showed roots of dead and decaying appearance to 2mm in diameter at a depth of 1.8 metres and roots of 1mm in diameter at a depth of 2.8m. The footings were at a level of 2 metres. The tests showed, therefore, that there were significant roots to a level of 2.8m or 0.8m below the footings and that, in this area, the excavation of the land before the house was built had not been deep enough.

[102]On 23 February 2006 Cunningham Lindsey wrote to Mr and Mrs Bole as follows:

“As can be seen in the attached Engineering Appraisal Report, we have been able to confirm that the damage is the result of heave movement. The ground investigation confirmed the presence of high plasticity clay soil beneath foundations which are of insufficient depth to counter the previous removal of a willow tree located within the footprint of the property. Furthermore there was no evidence to suggest that anti-heave precautions had been taken during construction of the foundations where these were exposed. Root samples were observed within the excavation confirming the past presence of a tree coincident with the apparent centre of movement…”

[103]The letter went on to predict that only a modest amount of further movement was likely and that the majority of movement that was likely to occur had already taken place. The proposed plan was that, at the end of monitoring in November 2006, a decision on repairs would be made. The repairs to remedy the problem would take place between March 2007 and August 2007.

[104]The Engineering Appraisal Report dated 24 February 2006 accompanied the letter. It described the level of damage as “severe and is classified as category 4 in accordance with BRE Digest 251 – Assessment of Damage in Low Rise Buildings.” The BRE Digest describes Category 4 damage as extensive damage. (See paragraph 54 above)

[105]Under the heading “Repair” the Report said that they were currently assessing the most appropriate form of remedial measures. The Report said “This will include superstructure strengthening, crack and distortion repairs and associated strengthening. The need for further remedial work will be determined following further review and crack monitoring.”

[106]From 13 March 2006 to 25 April 2006 monitoring was carried out. Twelve readings were taken in addition to the base reading and some repairs and redecoration were also carried out.

[107]The schedule of repairs dated 17 March 2006 shows repairs to cracks and internal decorations amounting to a cost of £5,429.47 plus VAT. The repairs were in the dining room, lounge, snug (reception room), downstairs WC (front of house), study and kitchen. The repairer noted that these were temporary works and that the heave was still ongoing. Although the final account dated 6 July 2006 appears to have been for £5,397.48 including VAT, on 1 September 2006 Cunningham Lindsey authorised payment of £6,342.04.

[108]Mr Hubbard of Cunningham Lindsey visited the property on 14 February 2007. His handwritten note includes for Photograph 14 “locally wood blocks lifting where internal trial hole was.” Mrs Bole said in oral evidence that she had not seen this note before and did not accept it.

[109]On 13 June 2007 Cunningham Lindsey wrote a further Report. It noted that the approximate market value of the house was now £550,000 to £600,000. It described the extent of the damage as “wide spread but focussed about a heave or upward movement in the centre of the house”. It said that this had led to floor slopes falling from the centre of the house to the left and right flank walls. Crack widths of up to 16mm were now apparent at first floor level and that the extent of the cracking had increased since the time of the Claimants submission. “As the damage was initially centralised now the damage covers the whole building.”

[110]The Report set out 3 options. The cheapest option, then said to cost about £80,000 (structural crack repairs and redecoration) is the one that is recommended although the Report commented that “as the building is not completely stable there is and will be an issue to be resolved with the policyholder.”

[111]The next option described as “also worthy of consideration” was localised underpinning together with superstructure repairs. The cost was estimated at £130,000 and the Report indicated that there was still a minor risk that there could be future minor movement.

[112]The most expensive option was a piled raft to the full ground floor footprint. Although the insurers did not recommend it in view of the cost and the relatively limited amount of future movement expected, they noted that “This is the only option where stability can be confidently achieved” and “This is the only one where we can be confident that the movement will cease in the short term.”

[113]Under “Policyholder concerns” the Report records “The policyholders are totally frustrated with the proceedings to date. Having purchased the property in 2001 they have not had a period to enjoy the property without damage. They wish either to have the house demolished and rebuilt or that a DMV settlement is agreed. They do not want to have repairs that do not address the problem fully. They wish to sell the house at the earliest opportunity. Finally they have put off having a family because of the anticipated upheaval of the repair.”

[114]Mr and Mrs Bole met Cunningham Lindsey on 25 June 2007. They disagreed with the claims engineer Mr Baker (Mr Hubbard’s superior who had taken over the file) that only structural crack repairs and redecoration should be undertaken.

[115]In his letter dated 27 June 2007 Mr Baker said that the contractor could return to deal with further minor cracks. He said soothingly “This can be considered much the same as a builder who constructs a new house and returns to make good any minor shrinkage cracks.” This was an unfortunate way of categorising further remedial works to be undertaken six years after Mr & Mrs Bole had bought a new house and had already endured temporary remedial works in 2003 and 2006 and were about to endure a third round of temporary repairs. Mr Baker went on to say that unfortunately he could give no indication of when the heave cycle would be complete.

[116]On 21 September 2007 CAE Group carried out further repairs described by the experts as “internal and decorative.” Before the work started Mrs Bole took photographs of the property. These showed extensive cracking to the upstairs (where repairs had not been previously carried out). The works to be undertaken included not only repair of cracks in the hallway, but also to the upstairs landing, the main bedroom, the rear left bedroom, the en-suite to the rear left bedroom, the master bedroom and en-suite facilities at a cost of £4,959.19 including VAT. I accept Mrs Bole’s evidence that in November 2007 the repairs also included minor works downstairs to the hall and snug.

[117]I have considered carefully the photographs which were taken in February and November 2007 and in 2008. They are helpful in illustrating the effect of the remedial works and form part of the background against which I must consider the evidence of Mr Allen and Mr Edward when it conflicts.

[118]On the 13 May 2008 Cunningham Lindsey in a Supplementary Report on the Subsidence Referral Form, after the temporary works had been completed, referred back to its Report of 13 June 2007. Under “extensive damage” it referred to the previous extent of the damage as “wide spread throughout the property but focussed on the centre of the property”.

[119]Under “present position” it set out again the options in the June 2007 Report. It went on to say that there had been developments which changed its opinion. “Over the past six months since the repairs were completed there has been further movement, commencing immediately after the conclusion of the works. The cracks are up to 1mm in width. The damage is greater and sooner than we expected.” It also noted that the monitoring of levels showed some further movement but in a haphazard fashion.

[120]The Report noted that the situation had been reached where Mr and Mrs Bole were insistent that the claim be brought to a conclusion and that a solution should achieve enduring stability of the property. In these circumstances Cunningham Lindsey altered their recommendations to that of a piled raft solution to the full foot print of the property.

[121]The experts made their first visit to site on 27 March 2008. They made a further visit on 28 August 2008. On 16 October 2008 they made a third visit with the single joint expert, Mr Toates, who was retained to value the cost of the various remedial schemes. The damage set out in the experts joint statement in October 2008 was agreed by the experts to have been caused by foundation movement.

[122]Mr Toates, a Chartered Quantity Surveyor concluded that costs of £13,893.81 had already been incurred comprising £3,062.65 cost of monitoring; £529.93 CET site investigation and £10,301.23 as the cost of previous repairs.

[123]In addition Mr Toates calculated that the cheapest option, namely the cost of superstructure repairs and external paving/garden walls to be £42,834.72 inclusive of fees and VAT but exclusive of temporary accommodation, decant costs and return removal costs. From this sum must be deducted the agreed sum of £2,530.69 in respect of the work on the external paving and the garden wall, which it is agreed, is not attributable to the heave. In addition a further £1,198.02 would be needed to be spent on upgrading previous temporary repairs to permanent repairs. Mr Toates also concluded that even with this option, Mr and Mrs Bole will be required to move out of the property while the work is being carried out. The work is likely to take less than six months but six months was likely to be the minimum period of rental that could be found and the cost would be a further £9,000. In addition Mr & Mrs Bole would incur removal expenses assessed at £4,089 and the cost of “overspill” furniture storage of £1,328.86. This makes a total cost including work already carried out and VAT, of £72,344.41 (less the £2,530.69).

[124]The intermediate option is not now put forward by either party and Mr Toates did not cost it. Mr Toates estimated that the cost of the superstructure repairs, and the installation of the piled raft foundations would amount to £176,809.55 (less £2,530.69). The cost of alternative accommodation for up to 12 months to cover the period during which Mr and Mrs Bole would be required to vacate the property, would be £18,000. The cost of overspill furniture storage would be increased to £2,657.22. The cost of repairs previously undertaken, upgrading temporary repairs and the removal costs would remain the same. The total cost is valued at £216,647.60 (less £2,530.69) i.e. £214,116.91.

[125]Both Mr & Mrs Bole swore witness statements and gave evidence. Mr Bole’s evidence was brief and supported Mrs Bole’s evidence. They emphasised the importance of having the piled raft scheme because this would at least bring to an end the disruption which had occurred to them since they moved into the property in 2001. Mrs Bole ended her witness statement, sworn in October 2008, by saying “The effect (of the damage to the property) has been to disrupt our family life and to cause very considerable annoyance and distress (and I refer in particular to the accident which I suffered this year as a result of which I broke my foot after tripping over the uneven floor in the snug).”

[126]In an annexe to Mrs Bole’s statement, Mr and Mrs Bole set out the consequences of the physical damage caused by the heave. This is wide spread. I accept Mr and Mrs Bole’s evidence relating to the damage caused by the heave except in the areas which the experts have agreed are not attributable to heave.

[127]Mr and Mrs Bole set out further points. (It would appear from the way that the note is written that it was effectively a joint statement.) In the passage headed “stress” the note says “The fact that it has dragged on for years with little or no sign of solution has led to Stefanie (Mrs Bole) having to seek medical help and sadly has had to take anti-depressants to cope”.

[128]Towards its conclusion, the note says that during Mrs Bole’s pregnancy (baby born on 28 January 2008) the house was in a state of upheaval with cosmetic repairs to the upstairs and downstairs. The note concludes “to us this is not just a property but our home and a home in which we want us and our baby to feel warm, safe and secure within. It has become a tremendous strain for us both with daily reminders and having to work around a defective house”

[129]In relation to her oral evidence, Mr Hussain for RMA said that RMA accepted that Mrs Bole fell in the snug but denied that the fall was caused by the block lifting “a couple of millimetres”. Since general damages have been agreed, this allegation assumes much less importance. It is sufficient to say that I accept Mrs Bole’s evidence that the bore hole was properly repaired in 2006, that the wood blocks rose later and that she tripped and fell in August 2008 and fractured the base of her right toe.

The Experts

[130]Although Huntsbuild has taken no part in the trial, its expert, Mr Lambert, did take part in meetings with Mr Allen for the Claimants and Mr Edward for the Second Defendants and in particular in the meeting on 28 August 2008 when the joint statement was agreed. Mr Lambert’s comments were subsequently deleted. The Joint Statement was very conscientiously undertaken and is extremely helpful in narrowing and explaining the issues.

[131]Mr Edward has attempted to answer the question of whether or not the premises are fit for habitation within the meaning of the DPA. I regard this as an issue for me and not for the experts although, of course, I am guided by their relevant expert findings in reaching my conclusion. In any event Mr Edward was instructed by the lawyers for RMA to apply the wrong legal test and for that additional reason his comments on this issue are not helpful.

[132]Having said that, the experts have been extremely helpful in reaching agreement on the following matters of great importance and I adopt their agreed conclusions as my findings. I derive the following from their Joint Statement.

[133](1) The house has suffered extensive damage as a result of heave to the foundations. The centre of the heave movement is approximately at the location of a willow tree removed prior to the construction of the house in the year 2000 and is approximately in the centre of the “snug” near to the trial hole excavation by CET on 3 January 2006.

[134](2) The heave to the property was caused by the inadequate depth of foundations where trees had been removed near to the property prior to construction.

[135](3) The first cracking due to heave was noticed by the Claimants in the year 2002.

[136](4) The depth of foundations constructed by Huntsbuild were approximately as specified by RMA.

[137](5) RMA’s drawing number 98/1807-4.02 (as amended) was part of the Site Investigation Report and shows the locations of the trial holes in relation to the proposed development. This drawing also shows the trees on site which includes one large tree under the “snug” and a row of smaller trees along the front of the garages.

[138](6) The experts agree that a reasonably competent engineer would have knowledge of and be conversant with NHBC Standard 4.2.

[139](7) RMA correctly identified the subsoil as having a classification of medium shrinkage potential in accordance with NHBC Standard 4.2.

[140](8) The onset of movement would have occurred when re-hydration of the clay below the foundations commenced sometime after the foundations were constructed in April 2001; a further time delay would have occurred in identifying the cracking as being due to heave.

[141](9) Drawing 98/1807-4.02 does not comply with the NHBC Standard 4.2. While the foundation depths would have been adequate if they related solely to the trees that were to remain on site, or the trees to be planted, they were not adequate for the trees removed from site. These included the large tree under the “snug” of 52 Low Road and a row of smaller trees along the front of the garages to 52 Low Road.

[142](10) A design of the depth of foundation based on NHBC Standard 4.2 should have specified the depth of foundations in the area of the trees that had been removed.

[143](11) Huntsbuild would reasonably have expected RMA to comply with any NHBC Standards in preparation of its design and drawings. In this context I conclude that RMA is not absolved from its responsibility to Mr and Mrs Bole by Standard 4.2 – S.2 which provides what if there is any doubt about foundation depths the Engineer should be consulted.

[144](12) RMA’s Site Investigation Report stated that, for retained trees or new planting, the NHBC Tables were to be used, but for trees that had been removed, the depth of foundation should be based on excavation to 500mm below the presence of roots. The experts are agreed that this was not a satisfactory way of recommending these foundation depths. The experts noted the word “again” in the fifth line of the recommendations paragraph of the Report. This may have implied that NHBC Tables were to be used for removed trees but this was unclear.

[145](13) The recommendation for foundation depths to be 0.50m below the sign of desiccation was impracticable as an instruction to site because site operatives could not be expected to recognise dessicated clay.

[146](14) Although Huntsbuild allowed an overspill of concrete to form as shown on the CET trial hole log of 3 January 2006, the experts are satisfied that this error in construction would have a minimal effect on the property and was not causative of the heave movement.

[147](15) The CET site investigation soil testing results did not include the results from a remote bore hole for comparative purposes. Without this information it was not possible from the CET results to establish accurately the level of desiccation. The lack of a stable datum reduces the value of the monitoring results for assessment of future movement.

[148](16) In this regard, the chimney was used as a datum. This is near the willow tree that was removed and was unlikely to be a stable datum for readings to be accurate. The results do give an indication of differential movement. Monitoring station 21, which is near to the location of the centre of heave movement had a 4.1mm differential heave in the 23 month period to 2008 1.7millimetres of this movement occurred between January and February 2008.

[149](17) Although not agreed by the experts, I accept that on the basis that Station 20 would be expected to be the most stable part of the property, calculations by Mr Allen showed that this was subject to seasonal movement and therefore was not completely stable. On this basis the corner of the snug has the greatest differential movement.

[150](18) The experts are agreed that if a full raft underpinning is undertaken, the remedial works are likely to take in excess of 6 months but less than 12 months to complete.

[151](19) Although the foundations towards the centre of the house were inadequate to prevent heave at the time of construction, the heave movement is unlikely to cause the property to reach a structurally dangerous condition and the risk of collapse is low.

[152](20) The additional damage since the November 2007 repairs would be considered as Category 2 in accordance with the BRE Digest 251. However the significant movement occurring around the “snug” produced a maximum crack width of 16mm which is between Category 3 and 4. The number, distribution and size of the cracks is in Category 3 of the Digest.

[153](21) The experts are not agreed on the extent of the future movement to be expected at the property and the length of time over which this will occur. This may be of importance when considering the appropriate solution to be adopted from a purely engineering point of view. From their knowledge of the likely permeability of Oxford clay for a mature Willow tree, the experts are agreed that heave movement could continue for 15 to 20 years i.e. 2015 to 2021 (in fact 2014 Mr Edward and up to 2021 Mr Allen).

[154](22) Mr Allen considers that Huntsbuild constructed the foundations in accordance with the drawing. Mr Edward notes that the drawing does not indicate the foundation depths in the area where the trees are removed. These depths appear in Mr Money’s Report.

[155](23) Both experts criticise RMA for not putting the depths on the drawings. Mr Allen sees it as a fundamental criticism indicating poor practice, Mr Edward says that the builder should have interpreted the drawing in accordance with the Site Investigation Report. Having considered this particular difference, I prefer Mr Allen’s evidence, particularly bearing in mind the requirements for clear communication on drawings which is set out in NHBC Standard 4.2.

[156](24) The experts disagree as to the amount of heave yet to occur and the length of time over which it will take place. Mr Allen (paragraph 4.15 of his original Report) considers that significant movement will continue for a minimum of a further five years from October 2008 and will cause continuing damage although the movement will eventually cease. He notes that cracking may continue for up to 20 years i.e. to 2021. Unlike Mr Edward he sees no evidence of movement slowing. Mr Edward considers that 89% of the movement has already taken place. The remainder, equivalent to 4.3mm of upward foundation movement will be complete by about 2014.

[157](25) In the joint statement Mr Allen sets out the consequences of the cracking. These are important when considering whether the house as built was fit for human habitation. I accept his evidence on this. It is as follows:

[158]i) Cracking through walls leaves the escape route (hallways, stairs and landings) at risk of smoke infiltration through the cracks in the walls. This escape route cannot be considered a protected route in accordance with the Building Regulation Approved Document part B1 and put the occupants at a significantly increased risk if a fire was to occur. The only method of escape available as a result of a smoke filled hallway would be via a window, which at first level is likely to cause injury. [Para 5.15 of Mr Allen’s Report] Mr Allen said that the temporary remedial works had closed the cracks but that there was a significant risk that they may open up again. The potential failure of the gas supply pipe (which needs to be re-routed) represents, at present, an increased risk of fire.

[159]ii) Cracking has occurred in walls such that fire stopping around pipes and services between the house and the garage no longer complied with Building Regulations Approved Documents B1 and temporary repairs had to be undertaken in 2007. [5.17] Again, the temporary repairs may have solved the problem for the time being, but there is continuing movement which may well cause the cracks to reopen.

[160]iii) Cracking has occurred at the interfaces between walls such that they are no longer connected by either masonry bonding or by using mechanical connectors. This contravenes the Building Regulations Approved Document A clause 2 A2 (c) and this has reduced the stability of the building. [5.18] This is a problem although the building is unlikely to collapse.

[161]iv)The joints between the doors and windows with the external walls have been distorted in such a way that they no longer resist the penetration of precipitation to the inside of the building and damage is occurring to the timber doors and windows in contravention of the Building Regulations Approved Document C clause 5.29 (a and b) [5.20].

[162]v) Cracking in the internal walls has reduced the sound insulation of the internal walls such that bedrooms and rooms containing a water closet no longer comply with the Building Regulations Requirement E2 (a). [5.21] It is right to emphasise that this Regulation was only introduced in 2004. However the fact that the cracking in the external walls has reduced the weather tightness of the building and does not adequately protect the occupants from wind driven precipitation is a relevant matter in considering whether or not the house is fit for habitation.

[163]vi) Draughts in the house have been increased as a result of the cracks in the walls and distortion of window and door frames has occurred such that the construction does not comply with the Building Regulations Requirement L1. [5.22] This requirement relates to the conservation of fuel and power. Contravention of the Regulations is an obvious cause of increased fuel bills.

[164]In addition I accept the evidence that before the temporary repairs were undertaken, plaster fell off the main bathroom wall causing a risk of injury. I have also seen a DVD which demonstrates water gushing in through the bedroom window. I accept Mr Allen’s evidence that it was caused by foundation movement (rather than missing mastic).

[165]There are two fundamental areas of disagreement which I must now consider. First Mr Allen considers that a typical builder would only be likely to identify roots of greater than 5mm in diameter whereas Mr Edward considers that a builder would be easily able to spot roots of 1mm diameter in the foundations by examining a lump of soil brought up from the base of the excavation. Therefore the experts disagree on whether a recommendation to take the foundations to a depth of 500mm below the last evidence of roots is in any event practical instruction to give to builders. Secondly, the experts fundamentally disagree on the extent of repairs required to deal with the current building.

[166]On the first issue I prefer the evidence of Mr Allen. I note that the NHBC guidance refers to a specific depth and not to a depth below the last root. This seems to me to be the entirely sensible approach. I note that in this case the excavation was to a depth below 2mm of dessicated root but well above 1mm of dessicated root. It may be that a builder might be expected to spot roots of a little less than 5mm diameter but it is unrealistic to expect a builder to spot all the roots of 2mm and 1mm. In any event this instruction does not comply with the NHBC Standard 4.2. I note that had the depth of 3 metres, as required by the NHBC Standard, been complied with, the foundations would probably have been adequate. I find that a recommendation to take the foundation to a depth of 500mm below the last evidence of roots was not a practical instruction to give to builders and falls below the professional standard reasonably to be expected of RMA. RMA should in any event have specified a minimum depth for the foundations of 3 metres.

[167]In relation to the appropriate remedial scheme, I note that it is agreed that the gas pipe in the living room is a serious potential hazard. It looked as though this was going to be an important additional matter for me to consider. However the experts agreed at their meeting on 3 December 2008 that the gas supply pipe could be re-routed from inside the house and that this could be done by re-routing it externally from the meter box to the fireplace. It would cost an estimated £2,700 in those circumstances while this needs to be done, it is no longer a significant matter in relation to a consideration of the appropriate scheme of remedial works now to take place. However it is of some significance in considering whether the house was fit for habitation as built.

[168]Before considering the appropriate remedial scheme, and therefore the extent of the repairs that are required, I must have in mind the current state of the cracking that has occurred and the potential for future cracking.

[169]During the trial the experts continued to meet and reached substantial agreement on the extent of the cracking and the effectiveness of the temporary remedial works. This they set out in an updated schedule on 3 December 2008. At that stage the Schedule was substantially agreed between the experts. It showed widespread cracking in the snug, living room, downstairs hallway, study, kitchen, downstairs WC and upstairs in the hall, the bedrooms and the bathrooms. It also showed damage to the garage, the front door and the external walls.

[170]Subsequently Mr Edward withdrew his agreement in relation to five items. Even if I agreed with him on each of them, the Schedule would show agreement that there was and is widespread cracking. This has, in any case, been amply demonstrated in the evidence.

[171]I have already preferred the evidence of Mrs Bole and Mr Allen in relation to the snug and the upstairs bedroom window. The experts also disagree about the downstairs hallway floor, the door to the hallway, and the garage doors.

[172]I accept Mr Allen’s evidence that the opening up of the area around the door to the hallway was caused by differential movement. This is the area of the greatest differential movement. I conclude that the joints opened up as a consequence of the suspended beams moving differentially.

[173]Again, I accept Mr Allen’s evidence that the doors to the hallway have twisted and warped. This is next to the point of worst movement. I accept that it was caused by heave.

[174]Likewise I have no difficulty in accepting that the defects to the garage doors are due to heave. Mr and Mrs Bole have tried unsuccessfully to re-hang the doors. They are and have been for many years unable to lock the door. As a consequence the garage cannot be used for the storage of any valuables.

[175]There is no dispute between the experts, that, at the least, further extensive work needs to be done now and that unless the underpinning solution is carried out, further remedial work will need to be done to the house in the future.

[176]I have already rejected the Second Defendant’s contention that I should look at each room and decide, whether, in isolation, that room is fit for human habitation, and if it is, I should exclude it from further consideration. Based on the previous court decisions to which I have referred, I am satisfied that my approach should be a different one. The test under the DPA is whether or not the house is fit for habitation as built. The experts agree that the house as built suffered from a fundamental defect namely the inadequacy of the foundations. The results of this defect did not manifest themselves immediately but have done so since 2002 and are continuing. The defects reached Category 4 of the BRE Digest scale of seriousness.

[177]Considering the defects as a whole, the house has suffered from widespread cracking as a result of heave. By the time the effects will have been concluded, the cracking will have continued for 14 years on Mr Edward’s evidence and for up to 20 years on Mr Allen’s evidence (which I have already preferred). The only way, to be certain of stopping the heave immediately and providing the house with the stable foundations, which Mr and Mrs Bole could reasonably have expected when they bought the house, is to underpin it. This would necessitate Mr and Mrs Bole moving out of the house for up to 12 months. It is an indication of the extent of the damage to be repaired that, even on Mr Edward’s solution, Mr and Mrs Bole would still have to move out of the house for up to 6 months so that the current damage could be repaired.

[178]This follows repairs in 2002, 2006 and 2007 with a certainty of at least one more round of repairs before the effects of the heave are finally extinguished. In between repairs, the cracks open up making Mr and Mrs Bole’s home unsightly. In some aspects, for the reasons which Mr Allen sets out, the property as built was also potentially dangerous.

[179]In all the circumstances, applying the test of whether the house was unfit for habitation in the sense of being unsuitable for its purpose, I have no hesitation in finding that the house, as built, was unfit for habitation under Section 1 of the DPA in that it was built with unstable foundations which resulted in movement and cracking and other defects caused by heave.

[180]Cost I must now make my finding as to the cost of the appropriate remedial works. I return to Mr Toates’ very helpful Report. He noted that there is no disagreement between the experts as to any items of repair works which will be necessary to rectify the defects seen on site. The experts simply disagree on the appropriate solution. Mr Edward contends for a solution which carries out superstructure repairs now with the prospect of further relatively minor repairs later. Mr Allen contends that a piled raft foundation solution should be carried out now. Both experts are agreed that if the piled raft solution is carried out now it will prevent any further movement to the property.

[181]Even on Mr Edward’s case, as evaluated by Mr Toates, Mr and Mrs Bole must anticipate, in addition to suffering the significant damage to the property since 2002 caused by the inadequate foundations further repairs and the upgrading of temporary repairs in the sum of over £45,000. The carrying out of these repairs will involve them (and their baby) moving out of the house for up to 6 months and renting temporary accommodation together with the cost of removal costs and additional storage. The total cost is £69,813.72. In addition, in a few years time, the house will require further repairs to counter the further damage which will occur as a consequence of the heave. Neither the extent of the further repairs nor their cost have been quantified. This, in itself, is an indication of uncertainty as to the extent of future damage.

[182]The experts are agreed that if a new piled raft foundation is installed, it will stop all future movement. Mr and Mrs Bole would have to move out of the house for up to 12 months while the work was being carried out.

[183]In discussing the appropriate solution there was extensive investigation of the prognosis of the movement of the property if the piled raft foundation solution was not undertaken. In his supplementary report, Mr Allen made what seems to me to be valid criticisms of Mr Edward’s conclusions. These are set out in his summary. I accept them.

[184]Mr Edward had to concede in evidence that he used monitoring station 13 when he had agreed that monitoring station 29 had the greatest differential movement and that his extrapolation of a curve into the future did not go through the actual monitoring results.

[185]In addition more heave has occurred between 2006 and 2008 (4.7mm) than he predicted for the whole period from 2006 (3.9mm) I note that Cunningham and Lindsey were also surprised at the amount of movement occurring between their Reports in 2007 and their supplementary Report in 2008.

[186]Mr Allen concludes that at least 17.4mm of further movement will occur over the next years to 2020 or 2021.

[187]Although the experts have agreed that a period of 20 years is not uncommon, Mr Edward only takes a period of 14 years which would take the time to 2015. It seems to me that while neither expert can be certain as to the future progress of the heave, there has been more damage in recent times than was expected and I am satisfied that the damage is likely to be significantly more severe and over a significantly longer period of time than Mr Edward’s concludes in his Report and oral evidence. In so far as I have to make a finding deciding between the two experts I prefer and accept the opinion of Mr Allen.

[188]It also seems to me, and I find, that even on the basis that it is agreed that some further movement will take place, but the extent must remain, at best, a matter for speculation, it is entirely reasonable for Mr and Mrs Bole to insist that the piled raft solution is proceeded with now even though the cost will be considerably in excess of the alternative solution. Mr and Mrs Bole have already suffered a great deal over the last 7+ years in terms of living with cracking and remedial work to the property and it is entirely reasonable for them now to insist that the foundations should be put in a stable condition and that these problems should be brought finally to an end. This point is reinforced by the fact that if I was to accept Mr Edward’s solution there is no certainty as to the extent of future movement of the property or the extent of the repairs which will be required at some time in the future. This reinforces my view that Mr and Mrs Bole are reasonable to insist on the piled raft solution being done now.

[189]Conclusions 1. The first of the agreed issues relates to allegations of breach of contract by Huntsbuild. Under Clause 13 of the contract between Huntsbuild and Mr and Mrs Bole, Huntsbuild agreed to comply with the standards of construction prescribed by NHBC’s Standard Chapter 4.2. The foundation depth to which Huntsbuild built the dwelling did not conform to the depth prescribed in Appendix 4.2 C. In this respect, Huntsbuild failed to build the dwelling in accordance with the NHBC Standard of Construction in breach of Clause 13a of the contract. Further, as the builder, it failed to build the property with adequate foundations contrary to Section 1 of the DPA.

[190]2. As a consequence of RMA’s advice Huntsbuild failed to build the house with adequate foundations. In giving this advice RMA failed to act in a professional manner to discharge its obligation under the DPA. Without prejudice to other findings in this judgment, I highlight the following: i) RMA failed to prescribe the appropriate depth of the foundations in accordance with NHBC Standard 4.2 ii) RMA failed to specify on the plans and drawings the required depth of the foundations. iii) The recommendation that the foundations were to be a depth of 0.5m below the signs of desiccation was impractical as an instruction because a site operative could not be expected to recognise dessicated clay or desiccated tree roots of 1mm. iv) RMA failed to show an adequate depth for the foundations on the drawings. The drawings showed a depth of between 1.6m and 2.4m. They should have shown a minimum depth of 3m.

[191]3. As a consequence of the breaches by Huntsbuild and RMA of the DPA: i) The failure to excavate the dwelling to a sufficient depth causing heave is a defect of quality which is capable of rendering the house, as built, unfit for habitation. ii) On the facts, the house as built was unfit for habitation in contravention of Section 1 of the DPA.

[192]4) As to damages: i) I have found that the piled raft solution is the appropriate solution to remedy the defects in the foundations of the house. ii) General damages are agreed at £4,500.

[193]5. I have seen only brief written submissions from RMA in relation to the Part 20 Claims. These were, inevitably, made before RMA had seen these findings. I decline to strike out Huntsbuild’s Part 20 Claim and I will hear further submissions on both Part 20 Claims if necessary.

[194]In all the circumstances I give judgment for the Claimants against both Defendants in the sum of £218,616.91 (£214,116.91 plus £4,500), plus interest.