It is well established that the developer of a site owes a duty of care to the owners of adjacent property not to cause damage to their property during the development. Developers need to take reasonable steps to ensure that they perform the necessary searches to properly understand their site.
What amounts to reasonable steps was considered by the Court of Appeal in Northumbrian Water Ltd vs Sir Robert McAlpine Ltd. In this case the developer was developing a site that had previously been significantly developed in the 1970s. The development involved installing subterranean piles to secure the site. The developer conducted an extensive investigation of the ground before they began piling works, which included scans, exploratory trenches and a review of all recent drainage plans.
Unfortunately, a disused Victorian drain, that had escaped obliteration in the 1970s development, was not identified by the developer’s searches. Consequently when the piling work started, a pile was driven through the drain. Wet concrete later entered this hole and escaped down the drain in to the local sewer.
The local water company sought to hold the developer responsible for the cost of removing the concrete from the sewer. It was subsequently discovered that the only remaining plan with a reference to the drain was held in the archives of a local museum. The water company argued that by not identifying this plan, the developer had been negligent in its searches.
Decision by the courts
Not surprisingly the negligence claim failed at first instance and this was subsequently up held by the Court of Appeal. The Court did not believe that it was reasonable to expect the developer to have searched the archives of local museums for relevant plans. What is particularly interesting in the judgment however is the weight that the Court placed on the fact that the site had been extensively redeveloped thirty years previously. The Court appears to suggest that in light of the previous development, the developer would still not have been negligent even if they had not carried out such extensive ground searches.
What is clear from this judgment is that what are considered ‘reasonable steps’ will ultimately depend on the nature and history of the site. There is no substitute to ‘knowing your site’.
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