“As you are doubtless aware, there are four main steps to contamination assessment; these being: i) A ‘desk study’ type report including a conceptual model (Phase 1 Geo-Environmental Assessment). ii) An intrusive site investigation. iii) Developed and implementation of a remediation strategy. iv) Each stage is dependent upon the findings of the preceding stage, but the first stage is essentially a desk based exercise and, given the preliminary nature of this particular project, is what I recommend is undertaken in the first instance as the findings will help demonstrate the deliverability of the sites. The assessment will identify any potential sources of contamination and, as and when a planning application is submitted, will ultimately be used to inform the view taken by the local planning authority in terms of their requirement for intrusive investigation. Obviously we will prepare our report as sympathetically as possible, but in our experience even if this study is able to suggest that there is very little or no risk on site, some local authorities can insist on a level of chemical testing at application stage on the basis that some contaminants (such as arsenic) are naturally occurring and would not be associated with an historic land use. Our report will therefore aim to demonstrate that there are no particular issues that would prevent responsible development of the site.”
“(1) Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question) (2) What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question) (3) Did the defendant breach his or her duty by his or her act or omission? (the breach question) (4) Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question) (5) Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question) (6) Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid (the legal responsibility question).”
“1.1 This report has been prepared by Glanville Consultants on behalf of Darcliffe Homes and Horstonbridge (Thames Valley) Ltd to support the promotion, through West Berkshire Council’s Site Allocation and Delivery Development Plan, of Stonehams Farm for residential development. 1.2 This report has been prepared in accordance with the National Planning Policy Framework Section 11 and Model Procedures for the Management of Land Contamination (CLR11) to assess if there is any potential risk to the site. 1.3 The report identifies previous land uses and findings from unintrusive environmental and geological searches for the purpose of identifying issues that may adversely affect the development of the site for its intended end use.”
“4.1 Geological maps published by the British Geological Survey (BGS) indicate that the site is likely to be underlain by a superficial stratum of a Winter Hill Gravel consisting of sand and gravel from the Anglian period. The mapping also indicates that the site is likely to be underlain by a bedrock stratum of Lambeth Group Formation consisting of clay, silt and sand from the Paleocene period. Geological maps are included in Appendix F for reference… 4.4 BGS borehole records are a record of boreholes, shafts and wells from all forms of drilling site investigation works. The borehole data sheet sourced from the BGS holds one recorded borehole on-site (BGS reference Su67se592), which has a recorded drill length of 2.7m. The BGS borehole data sheet is included in Appendix G for reference. 4.5 The borehole log described above is available to view on the BGS website. The borehole record indicates 0.15m of topsoil over a geology consisting of firm brown, very silty, sandy clay with some gravel… 4.8 Natural cavities, such as sinkholes, swallow holes and solution pipes are indicated to be located within a 1000m radius of the site. None are indicated to be located within the site … 4.10 Potential for collapsible and compressible ground stability hazards are indicated to be very low and no hazard respectively. Soft materials such as clay are vulnerable if overloaded or if ground water levels change and can result in materials collapsing or compressing. 4.11 Ground dissolution occurs when water passes through soluble rock and produces underground cavities. These cavities reduce support to the ground above. Rocks that commonly suffer with dissolution stability hazards are salt, gypsum, limestone and chalk. It is indicated that the sites geology is at a low from ground dissolution. 4.12 Landslides are dependent on such factors as geology, topography, weathering, drainage and manmade construction. The risk of damage to properties on the site from landslides is indicated to be very low.”
“9.0 Conclusion and Recommendations… 9.4 The site and surrounding area is indicated to be underlain by a Winter Hill Gravel over Lambeth Group Formation… 9.8 In conclusion, the conceptual model has demonstrated that there should be no significant geo-environmental issues that would prevent the site from being redeveloped for its intended use. 9.9 This conceptual model should be reviewed and developed following the results of any intrusive ground investigations.”
“viii) In my view, Glanville Consultants should have reviewed and taken full account of the sensible guidance and advice given by CIRIA C574, that the presence of dissolution features should always be assumed when designing foundations for all sites underlain by calcium carbonate-rich Chalk. Glanville Consultants could have added just a single line to their report giving a suitable warning about the possibility of Chalk dissolution features. The absence of this warning is a major failing by Glanville Consultants ix) The Envirocheck report included tabulated records of observed Chalk dissolution features for five locations in the vicinity of the site where the geology is essentially similar to that found on the Stoneham Farm site. Glanville Consultants should have reviewed this data, carried out their own analysis and made their own conclusions. This would have been a straightforward due diligence check. x) In my opinion, if Glanville Consultants had competently reviewed and analysed the Envirocheck data and hazard ratings, they would have concluded that there was a significant chance that similar dissolution features could exist below the site footprint, but these had just never previously been identified. xi) In my opinion, Glanville Consultants should also have referenced the Chalk natural cavities database and obtained a written site assessment report as a due diligence check on the Envirocheck data. Not doing so was yet another failure by Glanville Consultants. xii) There is no question that any reasonably competent Geologist, Geotechnical Engineer or Specialist Consultant dealing with the ground should have been able to identify not only that the Seaford Chalk was present below the whole of the site footprint but also to have been aware of the inherent risks associated with engineering and construction in Chalk. Glanville Consultants clearly failed to do either.”
“For a Phase 1 report, I could receive up to 600 pages of material from Envirocheck. When producing a Phase 1 report, I would translate this into a readable report. It was not my own assessment, I was simply collating and repeating information and providing a summary of the Envirocheck information in a readable, accessible form for the client, together with appendices that contained the key raw data and materials we had obtained from Envirocheck.”
“Mr Chris Raison does not understand the claim by Dr Nick O’Riordan that there is ambiguity in the Witness Statement prepared by Jordan Rayner...”
“All GCL had to do in their report was to provide a single simple warning about the potential for deep weathering and Chalk dissolution features in general terms.”
“MS MIRCHANDANI: Now, going back to your reference to there being a need for a single line warning … MS MIRCHANDANI: So, in your view, all Glanville had to do was provide a simple generic warning, yes? A Yes. Q And had they done that there would be no negligence? A That's right.”
“50. If Darcliffe had known that dissolution feature should be assumed unless proved otherwise, or if Glanville had warned of the matters summarised in paragraph 49 above, Darcliffe would have investigated the potential cost implications, to pass them onto the vendor of the Land. Darcliffe would have discovered that it was not possible to determine whether dissolution features were present without carrying out very extensive intrusive ground investigation surveys, and the costs could not be predicted. It would not have gone ahead with the purchase. See: Denton W/S paragraph 13.”
“Q So, just so I'm clear, you at the time read the conclusion? A I read the conclusion that said “low risk,” yes. Q You didn't read the rest of the report? A I'm not going to claim that I read the rest of the report. I may have skim read it, I'm not going to claim to have read it all, no, any more than I’d - - I’d read all of the other six that we received.”
“Q So, in 2017, after both Glanville reports, you commissioned GWL to carry out intrusive site investigations to investigate the ground conditions and prepare a Phase 2 report. A Yes, but had we had the information that there were dissolution features just 80 yards down the road, we would have made sure that GWL would have been alerted too, and we would have carried out not maybe just two excavations but maybe four, five, whatever. The point was we've never had the opportunity to do what we would have liked to have done had we been correctly briefed… Q So, if I could take you back then to paragraph 9.2 of your statement, what you were saying here is that if Glanville had different advice back in 2014 or 2016, you would have carried out intrusive site investigations to investigate further. A We would have carried out a further investigation, yes. Q Yes, and you in fact did carry out further investigations in 2017. A I suspect, if we'd have had indications of ground dissolution features in the Glanville report, we would've perhaps re-briefed Ground and Water in a different way.”
“This report relies upon the Glanville Phase I Geo-Environmental Assessment Report, Issue 3, dated29th April 2016 . Total reliance has been placed on this report and no liability can be taken for their short comings.”
“…you have to take the difference in valuation. You have to take the difference between what a man would pay for the house in the condition in which it was reported to be and what he would pay if the report had been properly made showing the defects as they were. In other words, how much more did he pay for the house by reason of the negligent report than he would have paid had it been a good report?”
“10-111 The first subdivision of the rule can often be very simple to apply. Frequently a claimant will have taken the required reasonable steps of mitigation and thereby have avoided such part of the loss as was reasonably avoidable. No difficulty arises in such circumstances. But the claimant may have gone further and, by sound action, may have avoided more consequences than the dictates of the law required of them. In such circumstances the position has been definitively stated by Viscount Haldane LC in the leading case of British Westinghouse Co v Underground Ry. He put the rule thus: “When in the course of his business he [the plaintiff] has taken action arising out of the transaction, which action has diminished his loss, the effect in actual diminution of the loss he has suffered may be taken into account even though there was no duty on him to act.”
“Provided the course taken to protect himself by the plaintiff in such an action was one which a reasonable and prudent person might in the ordinary conduct of business properly have taken, and in fact did take whether bound to or not, a jury or an arbitrator may properly look at the whole of the facts and ascertain the result in estimating the quantum of damage.”
“… the subsequent transaction, if to be taken into account, must be one arising out of the consequences of the breach and in the ordinary course of business.”
“Provided the course taken to protect himself by the plaintiff in such an action was one which a reasonable and prudent person might in the ordinary conduct of business properly have taken, and in fact did take whether bound to or not, a jury or an arbitrator may properly look at the whole of the facts and ascertain the result in estimating the quantum of damage.”
“… the subsequent transaction, if to be taken into account, must be one arising out of the consequences of the breach and in the ordinary course of business.”
“55. SIB's argument is thus flawed because it disregards the net loss rule. This is the basic rule that applies in awarding damages for breach of contract or in tort that losses and gains arising from the breach must be netted off against each other and only any net loss awarded as damages. The leading authority for the rule as it applies to claims for breach of contract is British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd[1912] AC 673 , where the House of Lords held that savings made by the claimant from installing more efficient turbines to replace turbines supplied by the defendant which did not comply with the contract had to be taken into account in computing damages. Viscount Haldane LC said, at p 691, that “the principle which applies here is that which makes it right … to look at what actually happened, and to balance loss and gain”
“My Lords, it cannot be emphasised too often when considering the assessment of damages for negligence that they are intended to be purely compensatory. Where the damages claimed are essentially financial in character … the basic rule is that it is the net consequential loss and expense which the court must measure. If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff's losses and expenses in arriving at the measure of his damages. All this is elementary and has been said over and over again”.” “My Lords, it cannot be emphasised too often when considering the assessment of damages for negligence that they are intended to be purely compensatory. Where the damages claimed are essentially financial in character … the basic rule is that it is the net consequential loss and expense which the court must measure. If, in consequence of the injuries sustained, the plaintiff has enjoyed receipts to which he would not otherwise have been entitled, prima facie, those receipts are to be set against the aggregate of the plaintiff's losses and expenses in arriving at the measure of his damages. All this is elementary and has been said over and over again”.”
“This report contains confidential information intended solely for the recipient. This report has been prepared in accordance with the commissioning brief and is for the client’s exclusive use unless otherwise agreed in writing. Glanville Consultants Ltd does not accept liability for any use of this report, other than for the purposes for which it is was originally prepared and provided. Third parties should not use or rely on the contents of this report without written permission from Glanville Consultants Ltd.”