Claim No.HT-05-232A
Neutral Citation Number: [2006] EWHC 1913 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

St. Dunstan’s House
Thursday, 13th July 2005

Before:

HIS HONOUR JUDGE TOULMIN CMG QC

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B E T W E E N :

HODSON DEVELOPMENTS LTD
Claimant

-  and  -

GTA CIVILS
Defendant/Part 20 Claimant

-  and  -

GRAHAM WHITEHOUSE PRACTICE
Part 20 Defendant

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MR. P. LETMAN  (instructed by Finers Stephen Innocent) 
appeared on behalf of the Claimant.

MR. O. TICCIATI  (instructed by Hill Dickinson) 
appeared on behalf of the Defendant/Part 20 Claimant.

MR. I. COLLETT  (instructed by Beachcroft LLP) 
appeared on behalf of the Part 20 Defendant.
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J U D G M E N T
JUDGE TOULMIN CMG, QC:  

1	This is a claim by Hodson Developments Limited (“Hodson”) as developers, against GTA Civils (“GTA”) in contract and negligence in respect of setting out drawings prepared by GTA as civil engineers for what was known as Plot 10 (previously Plot 4) of a development at The Orchard, Oxford Road, Stone, in the area covered by the Aylesbury Vale District Council (“the District Council”).  The architects involved in the project were the Graham Whitehouse Practice (“GWP”).  They have been brought into the action by GTA as Part 20 Defendants.  

2	The parties have very helpfully agreed a list of issues.  I set out my brief response to that list of issues in an appendix to this judgment.

3	There is no dispute that on 11th June 2001 the District Council granted planning permission for the construction of a further four houses on the proposed development (including Plot 10) making ten houses in all.  It is also not disputed that in GTA’s setting out drawings, taken from GWP’s architects drawing, which were in accordance with the planning permission, GTA moved the position of the house to be built on Plot 10 1.4 metres or 1.5 metres southwards towards the Oxford Road, and some 1.8 metres eastwards.  The movement southwards is of particular significance in the litigation.  I refer to the change of position in the setting out drawings as “the GTA change”.

4	In January 2002 the planning officers of the District Council declared that the change of position of the house which had been built to wall plate level was a breach of Condition 11 of the planning control, and they also referred to other breaches of planning control, the overall importance of which is contested by the parties.

5	On 19th February 2002 the District Council issued an enforcement notice requiring the demolition of the house.  After an unsuccessful appeal the house was demolished and rebuilt in the position required by the planning consent.

6	Hodson claims that GTA was in breach of contract and/or negligent in preparing a detailed setting out plan which was materially different to the architects drawing and the planning permission, without Hodson or GWP’s authority and without notifying either of the change.

7	Hodson claims that GTA agreed to merge GWP’s architects lay-out and the survey plan in accordance with the standard working practice developed by Hodson, GWP and GTA over  a considerable number of developments and that GTA agreed to notify GWP or otherwise bring to its attention any material departure from the architect’s drawings.

8	Hodson also claims that it was an implied term of its agreement with GTA that GTA would prepare the setting out drawings so as not to be in breach of planning permission and any other relevant statutory consents or approvals.

9	Hodson further claims that GTA was in breach of contract in preparing a setting out plan which departed materially from the architect’s drawing and was not in accordance with the planning permission and that GTA failed to notify either Hodson or GWP of the change.

10	By its Amended Defence, GTA claims that the change which it made to the position of the house on Plot 10 from the architects drawings was made for sound engineering reasons and was notified to Hodson and/or GWP.  

11	Further, GTA claims that the service of the setting out drawings constituted notice of the change without the need for any specific notification of any change.

12	If I find that either of these pleas succeeds it is agreed that GTA is entitled to succeed in its defence.  If I find against GTA on these issues, GTA claims that such loss or damage as Hodson suffered was caused solely or in part by Hodson’s and/or GWP’s negligence in failing to inform GTA of the particular significance to the planning authorities of the position of the house on Plot 10;  and in failing to scrutinise GTA’s setting out drawings to ascertain that they conformed with Hodson and GWP’s requirements.  GTA claims that if either had done so they would have observed the change in the position of the house.  

13	They should in any event have noticed the change in the position of the house at a later stage, notably when the house was being pegged out.

14	GTA claims further that if there was any failure on its part it made no, or relatively no difference.  First, it claims that Hodson was in breach of other planning conditions, the breach of which would either have required the house to be demolished in any event, or would have required Hodson to expend money in making significant changes to the west elevation by removing the knapped flint, by effecting a reduction of 600 to 800 millimetres in the height of the slab level and in the modification of the windows (see Conditions 2, 6 and 9 of the planning permission).

15	GTA also contends that Mr. Hodson had and has a cavalier attitude to planning and even if I find that Mr. Hodson/GWP was not informed of the GTA change, GTA contends that, even if he had been so informed, Mr. Hodson would have ordered the house to be built in accordance with GTA’s drawing and in defiance of the planning authority’s conditions.

16	Further, GTA claims that the breach of Condition 11 of the planning permission was caused not only by the change in the position of the house in the GTA setting out drawings, but also by a change which GWP had made to its design, which increased the north-south dimension of the house by 0.34 metres from 10.9 metres to 11.24 metres.

17	GTA also takes various additional points on the damages claim which I will deal with in due course.

18	In its Part 20 claim GTA alleges that GWP owed Hodson a duty in contract and tort to exercise reasonable care and skill in carrying out architectural services for Hodson and, in particular, in obtaining planning permission and ensuring that the permission was complied with.  It claims that GWP was negligent in failing to warn Hodson of the breaches of planning permission.  

19	Further, GTA claims that GWP failed to observe or do anything about the GTA change, notwithstanding that it was readily apparent on any comparison with the GWP drawing.  GWP ought, so GTA claims, to have checked the GTA setting out drawing to make sure that it complied with the planning proposal.  It ought to have heeded the warning that GTA claims was implicit in its own fax message of 15th March 2001.

20	Further, if it did not make the check on receipt of the drawing, GWP ought to have checked revision C of the GTA drawing issued on 29th June 2001 for construction, three months before the construction took place, to ensure that that drawing complied with the planning permission.

21	GTA also contends that GWP should have alerted GTA to the planning history of Plot 10 and should have provided GTA with relevant documents and provided GTA with a definitive minimum dimensional separation of the house from the Oxford Road boundary, whether by making it on the GWP drawing or otherwise.

22	In addition, GWP should have told GTA about the GWP change and should have heeded Mr. Jameson’s warning that in the setting out drawings the position of the house had been moved for sound engineering reasons.  

23	In all the circumstances, GTA contends that if it is found liable, GWP should make a substantial contribution to the damages.

24	In its Defence to the Part 20 claim, GWP emphasises that its retainer was limited in scope.  It was a general retainer with Hodson covering a number of sites but for limited purposes.  GWP’s duties did not include ensuring compliance with planning permission.  It had no direct site involvement.  It did not go on site except for specific purposes, nor did it issue instructions for site works or certify works.  Any other consultants on Hodson’s projects were also instructed directly by Hodson and this was the case on this project.

25	GWP admits that GTA’s change was made for sound engineering reasons, but makes it clear that it was not aware of it.  Its own change, it claims, was minor and was made in accordance with the instructions of Mr. Hodson who was aware that it was contrary to the planning permission.

26	In relation to its obligations, GWP contends that because of the limited nature of its retainer it was under no obligation either to inform GTA of matters relating to the planning consent or to check GTA’s setting out drawing against the planning permission.  It was also under no obligation to prevent breaches of planning permission or to warn Hodson of such breaches.  It was not acting as contract administrator and was under no obligation to carry out the practice set out in the architects’ job book.

27	In its Amended Reply, Hodson, in essence, denies the allegations which GTA has made against it.  It agrees that GTA was entitled to propose a change in the position of the house for sound engineering reasons, but denies that it had authority to do so without specifically notifying GWP or Hodson of the change.  Hodson denies that either was ever so notified. 

28	Hodson also denies that it caused or contributed to its own loss and denies the specific allegations relating thereto.  It asserts that it was the GTA change which alone caused the order for the house to be demolished.  If Hodson had known about the change it would have discussed it with the planning authorities.  It would not have proceeded with the GTA drawings in defiance of planning permission.

	THE PARTIES:

29	Before setting out the history, I should identify the individuals involved.  Mr. Alan Hodson is the sole shareholder of the claimant, which is a successful development and building company.  Mr. Hodson is very much involved in the day to day running of the company.  In the sense that the company acquires land for its own development and then carries out its own building works, it acts both as client and contractor.  It was clear from the evidence that Mr. Hodson liked to keep close overall control of his projects.  He said in evidence that he did listen to the experts, including Mr. Whitehouse, but then made his own decisions.  I find that this was the case.

30	His attitude to planning requirements was called into question by GTA.  I will deal with the specific allegations in due course, but I am satisfied that Mr. Hodson took a hard-nosed attitude to planning requirements and was prepared to test the system in the sense that he would approve changes which amounted to breaches of planning control if he thought they would not attract any sanction.  

31	An example of this was his disregard of the planning condition in relation to the windows on the south elevation of Plot 10.  He said that if the council insisted he would change them.  Mr. Whitehouse said in evidence that he would argue that any reasonable planning committee would allow the change retrospectively, although he had advised the client against the change.  

32	Mr. Hodson was also aware that much could be achieved by informal discussions with planning departments and local authorities.  In general, in his evidence, he was doing his best to assist me.

33	Mr. Hodson was assisted by Mr. Sanghera, who acted as operations director for Hodson from 1991 to 2006.  He has an NHBC qualification.  He had much of the day to day responsibility for the project and he was impressive as a witness.

34	Mr. Hodson had a business relationship with Mr. Tobias, which had matured over the previous 19 years and about 60 projects.  Mr. Tobias had been involved in doing the setting out work for most of Mr. Hodson’s development projects for a number of years before the Oxford Road development.  Mr. Tobias was and is an experienced engineer who qualified in 1968 and established his own practice in 1974.  

35	He was assisted on day to day aspects of this project by Mr. Jameson.  Mr. Jameson qualified as a civil engineer in 1998 and practised as such until April 2002.  In April 2002 he left GTA and has since practised as a public health engineer.  Again I am satisfied that both tried to give their evidence honestly.  Mr. Jameson had the disadvantage that it was four years since he left GTA and, in the event, his evidence on the most important matter of what he said to Hodson or GWP about the GTA change was unreliable.

36	Mr. Whitehouse qualified as an architect in 1979 and established a smallish practice with about eight employees.  He had taken over the role of Mr. Hodson’s retained architect on projects in about 1996.  Since then he had worked on over 120 projects with Mr. Hodson.  Many also involved Mr. Tobias and GTA.  He was assisted by Mr. Millbank, his associate, who qualified as an architect in 1989.

37	Mr. Whitehouse also employed Ms. Sadeghi as an assistant architect between November 1999 and September 2001.  She was what was known as a “Part II Architect”.  She was effectively a senior pupil in the practice gaining practical experience.  There is no criticism of her conduct by anyone.  As part of her qualification she was required to, and did, keep a diary to which reference will be made.  Again I find that these witnesses were doing their best to assist the court.

38	The engineering experts were Mr. Parker for Hodson and Mr. Tutt for GTA.  Mr. Armes was the architectural expert for Hodson and GWP, and Mr. Cleveland was GTA’s architectural expert.  I shall consider their evidence in due course.

39	The quantum experts, not without difficulty, have reached a substantial measure of agreement on matters within their expertise leaving various issues for me to decide.  This enabled me to deal with the quantum issues without having had to trouble them to give oral evidence.

	THE FACTS:

40	On 7th January 2000 Hodson acquired the site at The Orchard, Oxford Road, Stone in the Vale of Aylesbury for development at a cost of £1.175 m, subject to further overage payments.  

41	From an early stage the Planning Authority was concerned at the lay-out of the houses on the development and in particular the one which came to be known as Plot 10 on the development.  It was concerned that Plot 10 would occupy a dominant and overbearing position in relation to its surroundings.  This is borne out by an internal memorandum from Mr. Douglas, design officer of the District Council, to Mr. Denman, senior planning officer of the central area team in charge of development control on 8th March 2000.

42	After dealing with other matters, Mr. Douglas’s memo said that:

“It is evident that Plot 4 (Plot 10) will occupy an overbearing position given the existing height of the land at this point.” 

43	I accept the evidence of Mr. Hodson and Mr. Whitehouse that neither of them saw this memorandum until much later, but the same point was made at a meeting on 25th May 2000 between Mr. Denman, Mr. Whitehouse and Mr. Jennings of Hyder Consulting (Mr. Hodson’s consultants concerned with the problem of badgers on the site).

44	The meeting itself was very much concerned with the need to accommodate badgers present within The Orchard site and the adjoining land.  In the course of the meeting, GWP’s preliminary sketch for the redevelopment was discussed.  It is recorded in the note of the meeting that Mr. Denman:

“(a)	expressed initial concern of the relationship between Plot 4 (Plot 10) and the main road (levels, mass and proximity).”

45	In response Mr. Whitehouse is noted as saying that Plot 10’s relationship to the road would be considered and more fully examined.  The note was copied to Mr. Hodson.  Both Mr. Hodson and Mr. Whitehouse have made it clear that they were made fully aware of the District Council’s concern in relation to the possibility that the house sited on Plot 10 would have undue prominence in the surrounding landscape.

46	This meeting is instructive in demonstrating how much of the planning work inevitably and appropriately is dealt with.  There are informal meetings between the applicants and the planning officials at which matters can be discussed and potential objections can be met before the formal approach is made.  

47	On 21st June 2000 Mr. Whitehouse submitted the formal application for planning consent for ten houses on the site of The Orchard public house and the surrounding land.  

48	In relation to Plot 10 (still described as Plot 4) Mr. Whitehouse wrote:

“In addition to the influence of badgers we have been mindful of the comments of your Design Officer in particular and your Design Guidance Note in general.  As a result I can confirm the following …

“3	Plot 4 has been moved approximately two metres further from Oxford Road and elevations modified to give more visual interest to the road frontage.  The Design Officer has commented on the ‘dominant and overbearing position’ of Plot 4 and the impact on the entrance to Stone from the west.

“This point has been carefully considered and in addition to setting the house further back from the road, I would ask you to consider the following facts …”

49	This letter was copied to a number of individuals, including Mr. Hodson via another of his companies, Ascot Wood Ltd.

50	It appears that the Planning Applications were discussed informally between Mr. Whitehouse and Mr. Denman.  On 26th June 2000 Mr. Millbank, Mr. Whitehouse’s associate in the GWP Practice, wrote to Mr. Hodson to report that Mr. Denman was still awaiting design comments on the planning applications.  

51	Mr. Denman had raised a particular concern over Plot 10 and Mr. Millbank told Mr. Denman that:

“We are issuing amended proposals to him which address his concerns on Plot 4 (10) as originally submitted.  Mr. Denman has confirmed that on receipt of these amendments they will be incorporated into the current application and passed on to Mr. Douglas for his comment.”

52	In cross-examination Mr. Hodson confirmed that he understood the problems relating to the siting of Plot 10.

53	On 27th July 2000 Mr. Whitehouse wrote to Mr. Denman to say that he was reconsidering the design of Plot 4 (10) “in an effort to further reduce the mass/ potential impact upon the Oxford Road”.

54	On 10th August 2000 Mr. Millbank wrote to Mr. Denman enclosing amended proposals for Plot 10.  The drawing amended the two-storey dwelling to a chalet building.

55	In relation to another site there are notes in Ms. Sadeghi’s diary for 14th and 15th August 2000 which appear to show that another of Hodson’s developments revealed a discrepancy between the engineer’s foundation drawings and the architect’s drawings of the order of 400 millimetres.  GTA relies on this as showing that Hodson needed to carry out basic checks on the engineer’s drawings.  Mr. Hodson said that it was of no significance because it was simply a relatively minor site query on another job.  I accept Mr. Hodson’s evidence.

56	On 15th August 2000 Mr. Whitehouse wrote again to underline that the effect of the amended proposals for Plot 10 was to reduce significantly the bulk and height of the building and its potential impact upon the Oxford Road.  This letter was copied to Hodson and Mr. Douglas.

57	In a fax on 6th September 2000, Mr. Denman suggested amendments to GWP’s drawings.  He suggested, a little surprisingly, an increase in the height of the roof and a change in its pitch to 40 degrees.  He noted that the window positions could be varied.  He suggested small windows for the south (Oxford Road) elevation.

58	On 12th September 2000 Mr. Whitehouse sent the sketches on to Mr. Hodson.  On 25th September 2000 Mr. Whitehouse again wrote to Mr. Hodson saying that the planning applications for the development were on the District Council’s agenda for 5th October 2000.  He said that Mr. Denman was recommending approval of all three schemes but had asked for minor adjustments to the proposed floor levels which did not affect space planning or the external appearance of the buildings.  The amended plans would be issued on the following day, 26th September 2000.  Mr. Hodson accepted in evidence that Mr. Denman wanted the finished floor levels to be as low as possible.

59	On 28th September 2000 Mr. Whitehouse wrote to Mr. Denman enclosing new drawings and saying:

“As requested, the drawings have been amended to show revised (reduced) proposed floor slab levels for (Plot 10), together with amended (reduced) size staircase window fenestration for Plot B4 (10) facing the Oxford Road.”

60	The letter was copied to Mr. Hodson who said that he was aware that these matters were of concern to the planners.	

61	On 6th October 2000 Mr. Whitehouse was able to report to Mr. Hodson that the application had been considered by the Development Control Committee of the District Council on 5th October 2000 which had agreed that the matter could be left for delegated approval by the officers, subject to Mr. Hodson entering into a Planning Obligation Agreement.

62	Having obtained outline planning permission, subject to Officer’s approval, the next stage was to prepare for implementation.  Mr. Hodson, Mr. Whitehouse and Mr. Tobias had worked together on many developments.  Whatever formal contractual documents were brought into being in the earlier stages of their relationship, by this stage there was a great deal of informality.  

63	Mr. Whitehouse’s letter of provisional instruction to Mr. Tobias dated 2nd November 2000 is of importance.  The letter starts by saying that GWP has obtained planning permission for Mr. Hodson (subject to the s.106 agreement).

64	It continues:

“Alan wishes to undertake this development in-house and we must therefore start to prepare all the necessary pre-build information in the usual way.

“In accordance with normal working relationships your role would be roads, drains, setting out and statutory undertakers.

65		“The attached drawings will, I hope, be sufficient to enable you to access the necessary input.  I should point out that some of the house types may be liable to some minor changes (principally internal amendments).  I must also point out that the presents [sic] of badgers within the site.  Please contact me to arrange a meeting to sort out programme personnel once we have had an opportunity of digesting the matter further.”

66	There is nothing in the letter to indicate any particular planning problem with Plot 10.  GTA says that there should have been.  GWP says that it was unnecessary since GTA’s obligation would be to work with the GWP drawings which  reflect the resolution of planning problems relating to Plot 10.

67	It appears that there were some further drawings because Ms. Sadeghi’s diary entries for 27th and 28th November 2000 refer to “finalising plans and preparing Plot 10 floor plan”, and, “amend elevations and prepare Plot 10 elevations to client’s requirement”.  Mr. Hodson said in evidence that he did not know to what this referred.

68	On 10th January 2001 Ms. Sadeghi sent Mr. Hodson drawings showing the Plot 10 floor plans and elevations.  She asked him to confirm that he approved the plans and elevations which had required major amendments since the previous meeting.

69	In cross-examination Mr. Whitehouse readily agreed that the sketches for the windows were not in accordance with the planning consent.  He said that Mr. Hodson did not need to be told this.  As he put it, “no health warning was needed for Mr. Hodson”.

70	The revised drawings showed a slight overall increase in the dimensions of the house from that approved by the planners.  No doubt Mr. Hodson thought that this relatively minor change would not cause problems with the planners at a later stage.

71	On 12th January 2001, Mr. Whitehouse wrote to Mr. Hodson to tell him that he “had re-instructed Gerald Tobias in this matter”.  He proposed to issue a package of drawings for NHBC/Building Regulations purposes on 16th February 2001.  The letter ended with a complaint that his practice had not been paid by Hodson for considerable work that had been done in October, November and December 2000.  This is the only reference to slow paying by Mr. Hodson.  Mr. Hodson explained in evidence that it may have been caused by a temporary cashflow problem.

72	In a handwritten note, which is dated 16th February 2001, but is agreed to refer to a meeting on 16th January 2001, Mr. Whitehouse briefed Mr. Tobias on the project.  Mr. Whitehouse agreed that Mr. Tobias’s note was a fair summary of the briefing and that he did not mention any problem with the planners relating to Plot 10.  At the meeting Mr. Tobias went through various projects with Mr. Whitehouse in relation to the Orchard Road development.  The note makes it clear that Mr. Tobias was told that there were to be ten houses (no public house) and that the existing road within the development was to be widened and to be brought up to adoptable standards.  All house types were on CAD and the finished floor levels had been established.

73	It was suggested at the meeting that the order of priority for Mr. Tobias was that he should treat as the first priority another development at Ducks Hill Road where the engineering plans were needed very urgently.

74	Mr. Tobias says he should have been told about the previous planning difficulties.  Mr. Whitehouse said this was unnecessary because the drawings which would be supplied by GWP would reflect the solution to the problems.

75	On 24th January 2001 Mr. Tobias on behalf of GTA sent his fee proposal to Mr. Hodson.  This included two stages, A and B.  I include stage A solely to indicate the scope of the work which GTA agreed to carry out and which was clearly identified.  Stage A consisted of, (1), submitting requests to the statutory undertakers to obtain details of gas, electricity, water and telecom services, assess capacity and negotiate new services; (2), visiting the drainage authority and agreeing the means of disposal of waste;  and (3), contacting the Highway Authority to establish treatment of the junction of the development with the A418 road and agree principles of design for the new adoptable section of the access road.

76	Of the four items in stage B number one is crucial:

“1	Merge architects’ lay-out with survey plan, assuming both available on CAD and prepare plans, longitudinal sections, details, etc; of new road lay-out.”

77	The other tasks at stage B included preparing setting out drawings for roads, designing foul, surface water and highway drainage, design road lighting, incoming gas, etc.
 
78	A fee of £13,800 plus VAT, inclusive of disbursements was proposed.  Mr. Tobias agreed to merge the architect’s lay-out with the survey plan.  Structural engineering services were offered at an additional cost.

79	Mr. Jameson accepted that GTA’s role involved converting the GWP drawings as accurately as possible so as to prepare an engineering solution for the services.  If necessary, in his view, “minor tweaks” could be undertaken to the position of the house.

80	Mr. Tobias agreed in cross-examination that there was nothing in the letter which placed Hodson under an obligation to check GTA’s work.  He said that nevertheless he would have expected Hodson to check it to ensure that the merging had been done correctly.  This check could have been carried out simply.  He would not have expected Hodson to have undertaken a technical analysis.  In his closing speech Mr. Letman, for Hodson, described this approach as “self serving”.

81	On 1st February 2000 Hodson asked by letter for a reduction in GTA’s fees.  The figure proposed in a fax on the same day was £12,420 plus VAT.  By letter dated 6th February 2001 Hodson confirmed its agreement to the fees and the fee structure proposed.

82	Ms. Sadeghi’s diary entry for 7th February 2001 indicates that the planning officer on another project telephoned to say that he did not approve of alterations made to the plans.  GTA say that this is an illustration of Hodson’s cavalier attitude to planning.  Mr. Hodson said in evidence that it was a small extension to a private house and that in due course everything was agreed.  I have already found that Mr. Hodson has a hard-nosed attitude to planning.  I do not find that this takes the matter further.

83	On 22nd February 2001 Ms. Sadeghi by email sent Mr. Jameson the surveyed site plan for the development which had been prepared by Site Survey Limited.  During the week of 19th to 25th February 2001 Ms. Sadeghi was engaged on preparing the working drawings for other plots on the development.

84	On 16th March 2001 Mr. Whitehouse wrote to Mr. Hodson to report significant progress.  He confirmed that his firm had that day completed the drawings for The Orchard development to the standard NHBC requirement.  Some work still needed to be completed on the adjoining site of the County Arms (Plots 11 to 14), but the remaining details would be issued by the end of the following week.  He said that GTA would be issuing a preliminary set of engineering drawings on 21st March 2001 and would be issuing a full package including road and drainage on Friday, 30th March 2001.

85	This letter to Mr. Hodson followed a faxed request from Mr. Whitehouse’s associate, Mr. Millbank, to Mr. Jameson on 15th March 2001, which is relied upon by GTA as demonstrating that GWP knew that there was a problem over the siting of Plot 10 which should, at the very least, have put GWP on enquiry to check GTA’s drawings against the original drawings.

86	The fax said as follows:

“Could you fax over extracts of your lay-outs where you are concerned about minimum spatial dimension.  It would be easier for us to check the spacing being achieved rather than give you criteria.”

87	Mr. Millbank said in evidence that what he had in mind was a concern that the estate road would not fit on to the plan.  Mr. Jameson said in evidence that the reference to spacing must have referred to Plot 10 and the spaces between Plots 9 and 10.  I accept Mr. Millbank’s evidence and I find that the fax of 15th March 2001 is not relevant to the issues which I have to decide.

88	On 27th March 2001 Mr. Millbank wrote to Mr. Jameson to remind him that GTA’s drawing should be issued on 30th March 2001.  He asked that the drawings should not be marked or stamped as “Preliminary”.  He also asked that the package of information should be sent to Hodson Developments for the attention of Mr. Sanghera with an additional copy to GWP and a copy of the lay-out drawings to Gyoury Self Partnership who were Hodson’s consulting engineers.

89	Mr. Millbank said in evidence that the letter was written because Mr. Sanghera wanted a copy of the GTA drawings for the file so that it could be referred to when any queries arose on site when Hodson was constructing the house.

90	GTA’s drawing issue and schedule sheet shows that the site lay-out drawings were issued to Mr. Whitehouse and Mr. Sanghera on 30th March 2001, and that amendments were issued on 4th April 2001 and revision B on 10th May 2001.  The GTA change was reproduced on the subsequent amendments.  

91	Mr. Jameson says that he told Hodson or GWP of the change in the position of the house.  In oral evidence he did his best to recollect who he had told and when, but the best he could say was that there was something in the back of his mind that he had informed the other parties of the movement of the house in the setting out drawings.

92	There is no dispute that Mr. Jameson made the change for sound engineering reasons.  He explained that he made the change because Plots 9 and 10 were too close together to allow a path of sufficient width that would have a sufficiently gradual slope to be stable and afford access to the residents.  He said that the GTA change was preferable to the only alternative solution, which was to have a retaining wall between the two properties which would have flat levels on either side of the fence.

93	The witnesses for Hodson and GWP were all adamant that they had not been told of the GTA change.  There is no documentary evidence (including documents on any internal file within GTA) which refers to any such change.  As appears later, there is also no reference to any notification in the letters written by GTA at the time in January and March 2002 when the officers of the District Council were threatening to serve an enforcement notice.  I have to conclude as a fact that Mr. Jameson did not notify Hodson or GWP of the GTA change.

94	Although I deal with the issue later when considering the evidence of the experts, I note at this stage that Mr. Jameson’s own view expressed in the course of the questions by Mr. Collett for GWP was that delivery of the drawings without explanation could not be adequate notice of any change.  He described the change as a “notifiable tweak”.

95	There is no doubt that Mr. Whitehouse did check the GTA drawing for some purposes.  On 17th May 2001 GWP wrote to Mr. Jameson requesting minor amendments to the proposed drainage lay-out between Plots 4 and 5 after Mr. Whitehouse had examined the effect of the proposed drainage lay-out on the principal badger set.  

96	On 11th June 2001 the District Council issued its formal planning permission.  Mr. Jameson does not recall seeing it.  He said that he did not request it on this occasion although he had done so on other occasions and he agreed that it would be good practice to do so.

97	The planning consent was subject to important conditions.  Under Condition 2 the development was required to be carried out using approved materials.  Condition 6 required construction to conform to slab levels indicated in drawing 1676/21C.  Condition 9 required that no windows other than those in approved drawings should be inserted in the building.  Condition 11 is quoted in full:

“The development hereby permitted shall only be carried out in accordance with drawing number 1676/01E received by the local authority on 2nd October 2000.”

	There were also various conditions relating to landscaping and tree planting on site.

98	On 18th June 2001 Mr. Millbank raised various points on the planning permission with Mr. Denman.  These related to badgers, archaeology and trees.

99	On 19th June 2001 Mr. Sanghera on behalf of Mr. Hodson wrote to Ms. Sadeghi and said that Hodson had made some amendment to the drainage drawing prepared by Mr. Jameson and asked him to make the necessary changes.  On 22nd June 2001 Hodson sent a schedule of finishes and samples of finishes to the District Council.

100	On receipt of the planning permission, GWP sent off its application to the National House Builders Council (NHBC) for its approval that the development complied with NHBC technical standards.  The drainage drawings were sent direct to NHBC by GTA on 19th June 2001.

101	On 15th July 2001 (which appears to be the same letter referred to later as dated 25th July 2001) Mr. Denman responded to Mr. Millbank’s questions.  In relation to materials he said that the details of the finishes were acceptable:

“ … EXCEPT IN RELATION TO PLOT 10.  This house will be sited in a prominent position and will be seen in conjunction with the retained County Arms building.  The roof should therefore be clad in plain clay tiles to match the former pub roof.  I would be grateful if you could confirm the revised details for the roof of Plot 10.”

102	Mr. Hodson believed that revised details were submitted.  This may have happened, hence the later reference to a letter dated 25th July 2001.  A point is taken later that the specific reference in the letter is to roof cladding, although it would appear that Mr. Denman wanted brick-facings and not flint.

103	As far as GWP was concerned there was still an issue to be resolved as to whether the estate road should be a private or an adopted road.  This issue was ventilated in a letter from Mr. Whitehouse to GTA on 29th August 2001 and in a letter from Mr. Hodson to Mr. Whitehouse which was responded to in manuscript by Mr. Jameson on 4th September 2001.

104	Negotiations took place to create another house on another part of the site close to the badger set.  Hodson was in touch with GTA about this because on 3rd October 2001 Mr. Roberts of GTA wrote to Mr. Sanghera to inform him that in the revised site lay-out drawings, GTA showed Plot 4 (not Plot 10) as having been moved two metres forward but the road as not having been realigned as they felt that the driveway was still adequate.  Hodson argues that this was a change to the plans which GTA notified to Hodson, although they had not notified the earlier GTA change.

105	On 30th October 2001 Mr. Whitehouse wrote to Mr. Jameson to say that on his latest visit to site he noticed that GTA had tightened the access to a building at the rear of the site.  He queried whether this was necessary, particularly as it would involve work on land which Hodson did not own.

106	Mr. Jameson responded to this letter in a letter mistakenly dated 21st October 2001 (because it refers to a letter of 30th October 2001) pointing out that the alterations had been on a previous drawing which followed GWP’s planning lay-out.

107	In early December 2001 problems were encountered in the demolition of the County Arms public house.  A large open well measured to a depth in excess of 15 metres was discovered.  There was also running ground water travelling approximately south to the main road.

108	Piling operations were started by Hodson.  A subsequent letter dated 12th December 2001 makes it clear that the operations were carried out without planning consent and against Mr. Whitehouse’s advice.  Mr. Hodson said that it was done by agreement with the planning authority but Mr. Whitehouse’s letter to the planning enforcement officer, Mr. Jackson, is couched in very apologetic terms and makes it clear that no further work would be carried out until such time as the current planning application had been determined.

109	This is a clear example of how far Mr. Hodson was prepared to push the planning procedure and I take it into account when in due course I reach my conclusion on whether Mr. Hodson would have disregarded the breach of planning consent implicit in the GTA change if he had known about it.

110	By early January 2002 the house at Plot 10 had been constructed up to wall plate level.  On 11th January 2002 Mr. Jackson, as the District Council Enforcement Officer, met with Mr. Sanghera on site.  He was concerned that the location of the house was in breach of planning consent.  

111	On 14th January 2002 Mr. Jackson wrote formally to Mr. Whitehouse with a copy to Hodson.  The main part of the letter is quoted in full:

“At the time of the site meeting it was established that Plot 10 appears to have been constructed in the wrong position in that the south wall of the building measures 8 metres from the highway kerb edge, whilst the approved plans show that the measurement should be 9.9 metres.  It would appear that the whole plot is also 200 cm too wide and 1 metre further to the east than shown on the approved plan.

“I understand that the site lay-out plan being followed by the builders is, in fact, not the approved plan but one drawn by your own engineers and I am concerned that this plan appears to differ from the approved plan.  Whether the incorrect positioning of this plot has an impact on the remainder of the development has yet to be established.  However, I would reiterate my advice to Mr. Sanghera that any further work on Plot 10 should cease until the matter has been considered by the Area Planning Officer.  To continue with works on this plot would be at your own risk as the Council may require that the building be repositioned in accordance with the approved plans.”

112	It is clear that immediately after the site meeting there were discussions involving Mr. Jameson, Mr. Horwood (a non-executive director of GTA), Mr. Whitehouse and others.  On 14th January 2002 Mr. Horwood wrote GTA’s response to Mr. Hodson.  The letter concedes that there is a difference between GWP’s agreed planning lay-out and GTA’s setting out drawing of approximately 1.8 metres east and 1.4 metres south.  The letter explained that when GTA was developing the engineering lay-out it became apparent that the differences of floor level between Plots 9 and 10 of 1.3 metres would cause a difficulty as GWP’s lay-out showed a distance of only 3 metres between the plots.  The letter explained:

“Therefore the decision was made to adjust the location of Plot 10 so as to widen the gap and allow a natural slope between the properties.”

113	Mr. Horwood went on to explain:

“We do not feel that this should become a planning issue as on every scheme the roads and building lay-out is inevitably tweaked to overcome engineering problems and site constraints.  Historically the planners on each side have not made these an issue.”	

114	The letter does not make any suggestion that either Hodson or GWP had been told of the GTA change let alone discussed and approved it.  Mr. Jameson said in evidence that he discussed the contents of the letter with Mr. Horwood to enable him to write the letter.  He agreed that the letter made no reference to any notification by GTA.  He said he could not remember whether or not he told Mr. Horwood that he had previously told the architect and the client of the change.

115	On 16th January 2002 Mr. Hodson responded to Mr. Horwood’s letter by suggesting strongly that someone senior from GTA should attend the meeting with the planning authority on the following Friday.

116	Mr. Tobias said that he had been shown the correspondence and realised that there was a serious problem which included the threat of enforcement action.  He knew that the setting out on site had been done to the GTA drawings.  

117	I have seen two notes of the meeting with Mr. Denman, the Case Officer of the District Council, and Mr. Jackson, the Enforcement Officer, which took place at the District Council’s offices on 18th January 2002.  The note from Mr. Tobias consists of handwritten notes made at the beginning, together with additions added a few days after the meeting.  The note from Mr. Whitehouse is in the form of a letter to Mr. Hodson dated 18th January 2002, which he dictated immediately after the meeting.

118	 The particular significance of the meeting for this litigation relates not so much to the admitted change in the siting of the house but to any references to other possible breaches of the planning consent which GTA contend might have necessitated the demolition of or substantial rectification work in the house in any event.

119	Mr. Tobias’s original note has added to it the suggestion by the District Council that the altered height of the house would be critical.  Mr. Whitehouse said that he did not remember this.  Mr. Whitehouse agrees that Mr. Denman may well have said that Plot 10 would probably have had to be demolished in any event because the developers had used inappropriate materials.  He also agrees with Mr. Tobias’s note that the representatives of the Authority told them that the council’s patience with Mr. Hodson had run out.

120	Mr. Whitehouse’s letter is, in most respects, in line with Mr. Tobias’s note.  It makes it clear that Mr. Denman had already been instructed to take enforcement action forthwith against Plot 10 and there was nothing that could have been said to persuade him otherwise.  It was clear that the primary ground was that the house was being built in the wrong place and that the planners were not prepared to consider any alternative to demolition.  Mr. Whitehouse concluded gloomily that the most economic option was to demolish the house and rebuild as Mr. Denman requested and hope that it would help to win approval for permission to develop the County Arms site.  

121	In the letter Mr. Whitehouse raised two relevant concerns.  The first related to the proposed floor level of Plot 10.  It appeared to Mr. Whitehouse that the house had been sited significantly higher than on both the approved plans and the engineer’s drawings, “This does much to increase the impact on the Oxford Road”.

122	Mr. Hodson accepted that this was correct.  Mr. Whitehuse noted that the finished floor level had also been varied on site.  Mr. Whitehouse said, “I feel this is a potential weakness if we go the inquiry route as it will almost certainly be discovered”.  

123	I prefer Mr. Whitehouse’s version to that of Mr. Tobias.  I find that the words relating to the critical importance of the raised height of the building were not said at the meeting, but were added in error by Mr. Tobias after the meeting.  However, even on Mr. Whitehouse’s recollection, two variations had occurred on site after GWP’s involvement and after planning approval.

124	Mr. Whitehouse wrote to Mr. Denman on Tuesday, 22nd January 2002.  This letter was, of course, written against the background of the meeting on the previous Friday and the local authority meeting due to take place on 31st January 2002, at which decisions would be taken.  The letter, which was intended to deal comprehensively with matters raised at the meeting, concentrated on the reasons for the change in the siting of Plot 10.  The letter emphasised, “You reiterated that the distance of the building to the road was your prime concern”.

125	The letter did refer to the fact that the authority had raised the issue of the incorrect use of facing bricks.  Mr. Whitehouse noted that in Mr. Denman’s letter of 25th July 2001 (perhaps 15th July 2001, see above), Mr. Denman did ask for a plain tile roof but did approve the buff bricks which were subsequently used on site.

126	Mr. Denman prepared a brief for the council meeting on 31st January 2002.  It is accepted that the date of 20th August 2001 on the document must be incorrect.  Paragraph 3.5 of the brief sets out the contention that the house had been sited in the wrong position.  It said:

“The re-siting is considered unacceptable and enforcement action is being taken to seek the demolition of the building.  Investigation has resulted in the conclusion that the remaining dwellings are correctly sited.”

127	Paragraph 3.6 noted that:

“Materials used to face Plot 10 are considered inappropriate and have not been approved.”	

128	Paragraph 3.7 says that:

“The matters summarised above were discussed with the agents in a meeting on 18th January.”

129	Although, as I have found, the question of the height of the house being built at Plot 10 had not been raised by the council on 18th January 2002 there was a concern about it at GTA.  Mr. Jameson asked Mr. Smith, the site foreman on site at Stone, to provide levels around Plots 9 and 10.  Mr. Smith said that Plot 10 had been built in the position shown in the GTA engineering drawing, but an internal decision by Hodsons meant that the finished floor levels of Plot 10 had been raised by 600 millimetres to a new level of 13.900.  The experts have agreed that Mr. Smith’s estimate of 600 millimetres is correct.

130	The atmosphere between Mr. Hodson and Mr. Whitehouse was strained.  In an anxious fax from Mr. Whitehouse to Mr. Hodson on 28th January 2002, Mr. Whitehouse suggested that the principal problems on site stemmed from actions taken by Hodson in breach of planning control, including the siting of Plot 10 approximately 600 millimetres above the level agreed.  He said that:

“All these matters may not seem great individually but collectively conspire to make my job more difficult.”

131	On 30th January 2002 Mr. Tobias wrote to Mr. Hodson referring to Hodson’s letter dated 23rd January 2002, which said that Hodson would not settle outstanding payments until Plot 10 had been resolved.  He said he understood why Mr. Hodson might want to take that view as far as outstanding invoices on the project were concerned.

132	Hodson received the Enforcement Notice dated 19th February 2002.  It set out two breaches of planning control:

“(1)	The dwelling as partially constructed close to the top of the bank rising up from the road and footway is a strident and oppressive feature overdominant in the street scene, out of keeping with the area and detrimental to visual amenity.  The siting in relation to the boundary between the site and the public highway reduces the space available for planting to soften the outline of the building …

“(2)	The facing materials used in the construction of the dwelling, in particular the use of flint, results in an appearance that is out of keeping with the locality and is visually intrusive in the street scene.  The dwelling as partially constructed fails to accord with Local Plan Policies … and deposit draft Local Plans.”

133	Mr. Sanghera observed in his evidence that the council had allowed Hodson to build four other houses in flint.  Mr. Tobias agreed that in relation to (1) above the increased height of 600 millimetres was not specifically mentioned.

134	The Notice required the partially completed house to be demolished within one month from 26th March 2002 unless the decision was appealed before that date.  The notice was followed on 5th March 2002 by a Stop Notice requiring Hodson to stop work on Plot 10.

135	On 20th February 2002 Mr. Whitehouse wrote to Mr. Denman setting out proposals for planning approval for a minor variation of the siting of the house on Plot 10 which would avoid the need for the carrying into effect of the Enforcement Notice.

136	This prompted an uncompromising response from Mr. Denman on 22nd February 2002 recommending that the application be refused.  It is unnecessary to set out the reasons in detail, but the following passages are significant:

“6.2	In the assessment of the original planning applications submitted for the redevelopment of The Orchard site, Plot 10 was identified as a key element within the development.  It was recognised that this dwelling, set at the top of the bank rising up from the Oxford Road, would be a visually prominent focal point.  Considerable effort was expended to ensure that this dwelling was designed and detailed to make a positive contribution to the character of the area.  The proposals for Plot 10 went through a number of amendments in the light of advice from the Council’s Design Office.  The Scheme that was eventually approved was considered acceptable in terms of scale, design, detailing, materials and location.”

137	Paragraph 6.3 went on to say that the forward relocation of the dwelling in comparison with the approved scheme was visually significant.  In Mr. Denman’s view:

“The relocation forward results in a form of development that would be visually intrusive and out of keeping with its surroundings.”

138	Paragraph 6.4 dealt with materials.  It noted that the dwelling as constructed featured extensive use of flint and that materials in relation to Plot 10 had not been approved.  Mr. Denman concluded that:

“The materials that have been used in the partial construction of the dwelling, in particular the use of flint, result in an appearance that is out of keeping with the locality and visually intrusive in the street scene.”	

139	Paragraph 6.5 complained in addition that:

“The amendments to the fenestration that the developers have introduced result in a messy, incoherent and over-complicated frontage elevation.  Amendments introduced elsewhere on the building also detract from the simple attractive character that was sought but have less visual impact.”

140	On 13th March 2002 Mr. Tobias wrote to Mr. Hodson a “without prejudice” letter.  It appears to be intended to set out Mr. Tobias’s justification for his firm’s conduct before making a limited offer to help.  It is striking that he makes no suggestion that Mr. Jameson told anyone at Hodson or GWP of the change which GTA had made from GWP’s initial drawing.  In fact, the letter supports the contrary view.

141	Paragraph 5 of the letter explains that, as was normal under its brief, GTA made some minor changes to the lay-out for good engineering reasons.  In relation to the movement of the building, 1.4 metres (1.5 metres) to the south, he explained:

“We did not feel a retaining wall would have been aesthetically pleasing in what is essentially a semi-rural surrounding.  We also felt it was an unnecessary expense you would wish to avoid.”

142	Paragraph 6 of the letter notes that the engineering solution was shown on GTA’s scheme drawings issued in March 2001 long before the building was constructed.

143	In oral evidence Mr. Tobias said that he did not recall Mr. Jameson telling him that he had told Hodson or GWP of the GTA change and said that if Mr. Jameson had done so he would have included it in the letter.  Mr. Tobias made it clear in the letter that his firm had acted in his view with all reasonable care, skill and diligence “in accordance with our normal brief on your projects”.  He said he thought that Mr. Denman was being vindictive, having been riled by other matters.

144	He then went on to offer practical help in the appeal:

“11	You have stated that you are willing to front the funding of the appeal keeping the costs separate from the other issues involving Plots 11 to 13 which do not involve GTA.

“12	In appreciation of this and as a goodwill gesture to a valued client of long-standing, I have agreed to part-assist with the funding by deferring payment of [various invoices], in effect providing a fund of £5,714.96 plus VAT towards your appeal costs.

“13	This gesture should not be taken as an acceptance or admission of liability towards any potential claim.  The invoices will become payable when the appeal is concluded unless otherwise agreed at the time.”

145	I accept that paragraphs 11 to 13 are consistent with Mr. Tobias’s attitude to the immediate payment of his fees, but do not constitute any form of admission of liability on the part of him or his firm.

146	On 28th May 2002, Mr. Whitehouse passed on to Mr. Hodson the District Council’s inevitable refusal of his further application for planning permission to move Plot 10.

147	By a decision dated 20th October 2002 the appeal against the Enforcement Notice was dismissed and the Enforcement Notice was upheld.  As a preliminary matter the Inspector rejected Hodson’s contention that the letter dated 25th July 2001 (see 15th July 2001) in fact gives consent to all finishes to Plot 10 except in relation to the roof, although he acknowledges that it was perhaps unfortunate that it did not for the sake of clarity request a revision to the walling materials.

148	In relation to the proximity to the footway the Inspector concludes (para.22 and following):

“However, in my view, the measured distance from the footway edge is not on its own the critical factor …  The structure at Plot 10 … appears … to be perched incongruously on top of the roadside bank causing harm to the character and appearance of this part of Stone.”

149	The Inspector notes that the 1.5m difference in location severely limits landscaping and that, because of its dominant position, the design of the house and the choice of materials always requiring sensitivity would become more obvious than intended:

“Its western and eastern elevations are more prominent because of the 1.5 metre shift towards Oxford Road.” (para.23)

150	He goes on to criticise the fact that the construction of the windows is different to the designs which were approved.  He concludes on this issue (para.24):

“These design changes may not on their own be sufficient to justify the enforcement action but the materials used on some elevations are also criticised by the council.”

151	I read paragraph 28 of the decision to be saying that while this – i.e. the use of facing with knapped flint – may also on its own not be sufficient to uphold the enforcement notice, the use of knapped flint facing, the design changes and the more prominent siting caused unacceptable harm to the character and appearance of that part of Stone.

152	On 1st November 2002 Mr. Whitehouse, having had discussions with Mr. Hodson in the previous 24 hours (which were not entirely amicable), set out his advice on how they should proceed with the rebuilding of Plot 10.  He said:

“It is increasingly clear to me that we must adhere to the original approved drawings.  Plot 10 was carefully negotiated by me with AVDC, but the approved plans were subsequently ignored in various aspects as follows:

“1	Fenestration in size, style and position of windows significantly different to as built.

“2	Height of eaves was increased as built.

“3	Ridges height was increased.

“4	Finished ground floor level was raised.

“5	Some dimensions increased.”

153	Mr. Whitehouse said:

“I am sure that the relocated building will be checked for any such discrepancies in future.  Indeed, it is such discrepancies which have contributed to the Inspector’s decision.”

154	It is clear that this letter was written by Mr. Whitehouse at a time when he felt himself under considerable pressure from Mr. Hodson and was concerned that he was being held to be substantially responsible for the problems with Plot 10 and other difficulties with the development at Stone.

155	He said as much in another letter dated 1st November 2002 headed “Re Planning Matters in General”.  It appears that this letter was written as a result of Mr. Hodson’s apparent change of attitude regarding responsibility at Stone which had taken place in the previous 48 hours.

156	At the hearing both Mr. Hodson and Mr. Whitehouse were at pains to soften the impact of this letter.  Mr. Whitehouse said that Mr. Hodson was steadfast in not holding GWP responsible for the problems over Plot 10.  He said that there was something in the telephone conversation that he had thought could come back on him.  Mr. Hodson said in evidence that at no time did he hold GWP substantially responsible for what had happened.

157	The letter refers to Mr. Whitehouse having “paid my penance”.  This refers to GWP contributing £8,000 towards the cost of the planning appeal.  Mr. Whitehouse said in evidence that Mr. Hodson had not repaid the £8,000, nor was he asking for it to be repaid.  This was despite the fact that, as Mr. Hodson agreed, Mr. Whitehouse had advised him not to pursue the appeal.

158	By a letter to Mr. Sanghera dated 15th November 2002 Mr. Whitehouse set out for Hodson his understanding of the working relationship between Hodson, GTA and GWP:

“We were instructed in the normal manner to seek planning permission for a comprehensive development of both parcels of land (the County Arms public house and The Orchard site).

“In accordance with our normal working practice and previous experience with David Brookbank (the previous retained architect) and your company, you instructed Developer Land Surveys to prepare a topographical survey before work commenced and you instructed GTA Limited to provide you with design of roads and drains and setting out information.

“To the best of my knowledge GTA have provided you with all your setting out drawings for developments of this sort throughout our shared working experience.

“GTA are separately and directly appointed by your company in this respect and normally work to an approved planning lay-out provided by my practice and survey disc as provided by Developer Land Surveys.”

159	The letter went on to set out briefly the history relating to Plot 10.  It emphasised:

“Unfortunately the alteration of the siting of Plot 10 was carried out without reference to ourselves or, I understand, to yourself.”
	
160	Mr. Whitehouse emphasised that:

“The role of my practice is to obtain planning consent and subsequently prepare more detailed plans to demonstrate compliance with building regulations and NHBC requirements and to provide information to others to enable them to supply services.”

161	The letter ended by emphasising that the decision by GTA to re-site the house was taken without consultation and approval.  In these circumstances Mr. Whitehouse contended that responsibility rested squarely with GTA.

162	Not surprisingly, Mr. Whitehouse made a special effort to ensure that the District Council approved in advance the plans for the position of the house on the working drawings, the materials to be used for roof tiles and brickwork and what he described as “minor amendments” to the elevations and modifications of the windows.  The proposals were contained in a letter dated 3rd December 2002.

163	After various discussions, Mr. Hems, a senior planning officer at the District Council, wrote on 18th December 2002 to confirm that the position of the house on Plot 10 was now in accordance with the approved plans.  He went on:

“The amendments to the windows and doors are considered to be minor amendments for which it is not considered a fresh application is required.”

164	The concrete roof tiles and red facing brick were considered to be acceptable materials.  The house was built and was put on the market in autumn 2003 and sold in February 2004.

	SPECIFIC ISSUES:

165	I come now to address the specific issues raised by the parties.  Although I have already made the finding of fact that Mr. Jameson did not tell anyone at Hodson or GWP of GTA’s change in the position of Plot 10 I should amplify my reasons.  I find Mr. Jameson’s oral evidence that he did so tentative and weak.  I prefer the evidence of those who gave evidence from Hodson and GWP.  There were no documents to support Mr. Jameson’s claim, even internal GTA documents.  He does not appear to have discussed the change with Mr. Tobias or any of his colleagues at GTA.  It is also compelling that in Mr. Horwood’s letter to Mr. Whitehouse dated 14th January 2002, which refers specifically to Mr. Whitehouse’s discussions with Mr. Jameson regarding the setting out of Plot 10, there is no reference to Mr. Jameson having told anyone of the change.  On the contrary, the purpose of the letter is to indicate that there was no need to tell anyone because all Mr. Jameson did was “inevitable tweaking”.

166	The stance taken in the 14th January 2002 letter is reiterated in Mr. Tobias’s letter to Mr. Hodson dated 13th March 2002 where Mr. Tobias claims that GTA made “some minor changes in the lay-out for good engineering reason”.  This was argued in the letter simply to be carrying out GTA’s engineering function and not to be making any significant change.  In reaching my finding of fact, as I have already said, I take no account of GTA’s offer in its letter dated 13th March 2002 relating to the costs of the planning appeal for the reasons which I have already given.

167	Since the claim is made by Hodson in contract, I now consider the terms of appointment of GTA.  These were evidenced in GTA’s fee proposal dated 24th January 2001, together with his letter dated 1st February 2000 and Mr. Hodson’s reply dated 6th February 2000, and must be considered in the context of many prior dealings between the parties.  I have already set out the relevant passages in the correspondence.  In my judgment, the letters must be read in the context that Mr. Hodson wished to retain overall control of the project and instructed professionals for limited purposes.  Thus GTA was instructed for a fee to perform the engineering setting out role in relation to roads, drains, setting out and statutory undertakers set out in the letter dated 24th January 2001.  This was a relatively limited role.

168	GTA agreed in its letter dated 24th January 2001 for an agreed fee to merge the architects’ lay-out with the survey plan, assuming both were available on CAD, and to prepare longitudinal sections, details, etc, of the new road lay-out.  GTA was not concerned with planning matters.  If it was able to merge the plans in accordance with professional practice, then it was able to carry out the terms of the contract, whether or not its drawings were in breach of planning permission.

169	I accept the formulation of the terms in Paragraph 11 of the particulars of claim.  The agreement that GTA would for an agreed fee carry out its work with reasonable care and skill in accordance with the standard working practices developed by Hodson, GWP and GTA as evidenced by GTA’s letter dated 24th January 2001 and agreed to in writing by Hodson meant that GTA had very little discretion.  Its obligation was to merge the architects’ drawing with the lay-out plan.  The agreement did not give GTA the contractual right to do otherwise than merge the drawings (which in itself might involve some minor change) even if there were sound engineering reasons for making a greater change.

170	In considering whether or not GTA carried out its obligations under the contract, it will be necessary to consider the nature of the change.  However, it is clear from the expert evidence that the engineer is frequently, if not invariably, not able to produce setting out drawings which are identical to the architects’ drawings.  Whether a material change has taken place will be a matter of fact and degree in each case.  I will deal with the practical effect of this later as a separate topic.

171	Hodson claims that there were two further terms to be implied in the contract (see para.12 of the particulars of claim).  First it is alleged that GTA was under an obligation to notify GWP, or otherwise bring to their attention, any change in the position or lay-out of the houses and plots or other similar material departures from the architects’ drawing.  In my view, this term does not arise directly.  To comply with the contract GTA was under an obligation to make no such changes.  However, as a practical matter, if GTA wished to make material changes and did not wish to be in breach of contract, it should have notified GWP and agreed with GWP and Mr. Hodson any such proposed change.

172	Secondly, it is alleged that GTA would prepare their setting out plans and drawings so as to comply with, and so as not to be in breach of, the obtained planning permission and any other relevant statutory consents or approvals.  I find that there was no such implied term.  GTA’s obligation was confined to turning the architects’ drawings into engineering setting out drawings.  It was no concern of GTA whether or not the GWP drawings complied with planning consent or any other statutory consents or approvals.

173	It is convenient at this point also to deal with GTA’s allegation that GTA was kept in ignorance of planning matters and was therefore provided with inadequate information.  In the course of the hearing GTA argued that it should have been informed of the planning issues over Plot 10 and that had this happened it would, of course, have understood that the GTA change was material and would have notified GWP or Hodson of it.  I agree that if a term had been implied into the contract that GTA would comply with the planning permission, a strong case could be made for saying that GWP was under an obligation to acquaint GTA with any planning difficulties.  This was not the position here.  Mr. Tobias and Mr. Whitehouse were used to working together and working with Hodson and each knew that GTA was instructed for a strictly limited purpose.  The terms of the planning permission was of no concern to GTA, although it would have known that the setting out had to be carried out in accordance with the planning permission.

174	In short, there was no obligation on Hodson or GWP to acquaint GTA of the planning permission, nor was there any obligation on GTA to take it into account.  GTA was entitled to assume that GWP’s drawing complied with planning consent.

175	Mr. Tobias understood this to be the case because he said in evidence that he understood that GTA were working on approved drawings provided by GWP.

176	 The next issue is whether GTA was under a duty to notify GWP or Hodson of the GTA change.  This is put in two ways.  First, it is said by GTA that the change involved no more than a “minor tweak” which was of the scale which was normal in an engineer transferring the architects’ lay-out into engineers’ setting out drawings;  and secondly, that the very act of delivery of the setting out drawing constituted notice. 

177	I received helpful evidence from the liability experts.  I have to look at their evidence carefully to ensure that I take fully into account only matters which are properly the subject of expert evidence, and to exclude from my mind those which are predicated on factual evidence where my findings have not coincided with assumptions which they have made.

178	In particular, I have found that in the context of the established relationship between the parties, the tasks of GWP and GTA were clearly defined.  They did not fall into the normal pattern of engineer and architect retained on a project in that they were very narrowly defined in order that Mr. Hodson could keep as much control of the project as possible.

179	This meant that, for example, I discount the evidence from Mr. Cleveland, GTA’s architectural expert, based on the conclusion set out in the architects’ joint statement that:

“For all practical purposes FC considers that GWP were the lead consultant.”

180	I find that GWP were not the lead consultant for the project.  They were appointed by Hodson to carry out certain specific tasks.  These included obtaining planning permission and providing architects’ drawings from which GTA agreed to provide engineers’ setting out drawings.

181	With these considerations in mind, I turn first to the issue of whether or not GTA’s setting out drawings were or were not consistent with the GWP drawings and involved only inevitable minor change to overcome engineering problems.  Counsel in the case used both the term “merge” and prepared drawings “in accordance with”.  There is a distinction well understood by the experts between the inevitable minor changes which are necessary to translate the architects’ drawing and survey plan into setting out drawings and engineers’ plans which go further and depart from the concept of “merging” or providing setting out drawings “in accordance with” submitted plans.

182	Since this is an allegation against consulting engineers I rely primarily on the engineering expert evidence (see Sampson v. Metcalfe Hambleton [1998] PNLR 542).  Mr. Parker, Hodson’s expert, said it was clear that GTA had departed from the GWP plans in the setting out drawings in ways which were materially different to the architects’ plan.  He would have expected the change to have been approved in writing at the very least.  He concluded in the second joint statement that:

“I do consider that GTA should have notified GWP and Hodson of the change in position of the house on Plot 10.  It was a material change and, as such, there was ample opportunity to agree such a change.”

183	In oral evidence Mr. Parker said clearly that a move of 1.5 metres was more than “mere tweaking”, even stripping out the information relating to the position of the planning authority.

184	In the second joint statement Mr. Tutt, GTA’s engineering expert, did not answer directly the question of whether the engineers’ setting out drawings were materially different from the architects’ drawings.  He contented himself by saying that the change had been made for sound engineering reasons.

185	In oral evidence Mr. Tutt had to concede that the GTA change went “beyond tweaking”.  He said that it was something that might well have been discussed.  Later in his oral evidence he reverted to saying that, in his view, the change was not such that the engineer was under a specific obligation to mention the change which he had made in the absence of any knowledge about the planning considerations.

186	Looked at from the point of view of an architect, Mr. Armes for Mr. Hodson said that it was the obligation of the engineer to follow the architects’ drawings as closely as possible.  Mr. Cleveland for GTA would have given more latitude to the engineer but said in cross-examination that the GTA change went beyond the scope which would be permitted by his wider definition.

187	I am satisfied that the changes which GTA made in the setting out drawings went substantially beyond what was reasonably necessary to give effect in engineering terms to the drawing supplied by GWP.  To use the expression used in some of the reports they went beyond “mere tweaking” and should have been notified to GWP as Mr. Jameson thought he had done and Mr. Jameson agreed that he should have done.

188	The most unfortunate feature of the case is that if the informal discussion between architect and engineer in relation to the GTA change had taken place, as Mr. Tobias said had happened in previous projects in which he had been involved with Mr. Hodson and Mr. Whitehouse, and Mr. Whitehouse’s predecessor architect, this dispute would have been avoided.

189	GTA’s alternative case on notification is that the supply of the GTA drawing was a sufficient notification by itself and accordingly there was no breach.  This is based on GTA’s contention that it was reasonable for GTA to expect that GWP would check its drawing for compliance with the approved drawings pending the grant of planning permission and, if not then, later for compliance with the planning permission itself.

190	There is a further related allegation against Hodson that it was contributorily negligent in failing itself to check the GTA drawing.  GTA’s case is also put on the basis that in assessing Hodson’s contributory negligence any negligence of GWP should be treated as Hodson’s since GWP was at all times acting as Hodson’s agent.

191	GTA’s claim is that if GWP had checked the drawings it would have noted the GTA change immediately.  This check should have happened very soon after 30th March 2001.  

192	GWP denies any such liability.  It contends that it was not bound contractually to do any vetting of the GTA setting out drawings.  In relation to GWP, I accept Mr. Collett’s submission that the structural engineers were not directly competent to give evidence of the professional standards of a building surveyor (see Sampson v. Metcalfe Hambleton, referred to above).  I therefore place primary reliance on the opinions of the architectural experts on this issue.

193	GWP’s expert, Mr. Armes, said in the written evidence at para.14.1 of the joint statement that as the lead consultant GWP would have been under an obligation to review the drawings, but this role was excluded by Mr. Hodson.  Further, GWP had no contractual responsibility to supervise the building works on site.  Mr. Armes contended that unless GWP was carrying out a full check on the GTA drawing (which they were not obliged to do) the GTA change would not have been immediately apparent.  He said that a comparison of GTA drawing 2005/P/101 and GWP drawing 1676/01E was difficult because (a) the two drawings are orientated differently;  (b) the house on the GTA drawing is the updated GWP house which is not identical to that on the original GWP site lay-out, the slight change in the width of 350 millimetres would be difficult to recognise on a scale of 1 : 200;  (c) the GWP drawing does not include a defined site boundary line making comparison difficult.  After it was delivered to GWP, GWP would have had no need to consult the GTA drawing to carry out its responsibilities under its contract with Hodson.

194	Mr. Cleveland took a wholly different view, but it was based on his conclusion, which I do not share, that GWP could properly be categorised as the lead consultants on the project and were therefore under a duty to review the GTA drawings.  I note that in oral evidence Mr. Whitehouse admitted that his firm could be perceived as the lead consultants, but I am satisfied that, as a matter of fact, GTA (Mr. Tobias) was well aware of the limited nature of GWP’s role and that GWP was not acting as the lead consultant on the project.

195	Apart from this overall requirement, Mr. Cleveland contends that as no footpath had been shown by GWP on their drawings, GWP would have had to examine the drawings to see whether or not GTA reflected GWP’s design intent.  Had GWP carried out this investigation, in his view they could not have failed to have noticed that the house had been re-positioned in relation to the Oxford Road and Plot 9.  

196	Mr. Cleveland also argues that, on a much more cursory examination of GTA’s drawing, it would have been very obvious to an architect who had been conducting the planning negotiations and was aware of the sensitivity of the position of the house on Plot 10 that its position had been moved.  He also supported GTA’s contention that the fact of the delivery of the drawings was sufficient to constitute notice of the change even in the absence of comment by GTA.  Mr. Jameson did not support this view in cross-examination.  His view had been that delivery of the drawings would not have been adequate.

197	In oral evidence Mr. Tobias said that, consistent with past working practice, he would not have expected GWP to check the drawings but would have expected GWP to have had a look at the drawings.  He would have expected Mr. Hodson to have looked at everyone’s drawings to see that they reflected what he wanted.  He did not disagree that other parties were entitled to rely on GTA’s drawings.

198	Mr. Millbank said in oral evidence that it was not GWP’s brief to check GTA’s drawings.  Mr. Whitehouse said that he was under no obligation to check the design detail in GTA’s drawings, but he would have expected to look to see whether the design intentions had been met.  Where there was a very obvious difference he would expect to have spotted it on the engineering drawings.  He agreed that if he had checked using a light box he could have seen the change immediately.

199	Having considered all the evidence I conclude that GWP was under no contractual duty to examine the GTA drawings in detail.  This was not expected by Mr. Tobias or by Mr. Jameson.  GWP was entitled to expect that, as competent engineers, GTA would merge the GWP drawings as they had agreed to do.  I find that GWP was, however, under a duty to make a cursory general examination for glaring errors to see that GTA had carried out the task which they had agreed to undertake.  I prefer Mr. Armes’ expert evidence on the general point and conclude that GWP were not in breach of duty in failing to detect the GTA change with the cursory examination which I have described.

200	If specific problems had arisen which GWP had been asked to investigate then no doubt it would consider the setting out drawings in detail in the context of the question in relation to which it was relevant.  It appears to have done this in relation to drainage (see para.99 above).

201	I reject GTA’s submission that there was a duty on Hodson and GWP to record in greater detail what duties GWP had contracted to undertake and that if this had been done GWP would have undertaken the duty of checking the GTA drawings.  Both were entitled to expect that GTA would carry out its contractual obligation to merge GWP’s drawings.  If GTA had made a significant engineering change beyond what was strictly necessary to merge the architects’ drawings, GWP and Hodson were entitled to be told about it so that they could evaluate its significance and decide what course to take.

202	GTA also seeks to avoid liability because it contends that its breach of contract, if committed, did not cause the damage.  GTA contends that even if it had told GWP and Mr. Hodson of the significant change which it had made, Mr. Hodson would have disregarded the planning implications and constructed the house on Plot 10 in the new position in GTA’s drawing knowing that it was in breach of planning permission.  Neither Mr. Hodson nor GWP would  have notified the District Council of the change and would have taken a chance that no action would have been taken on the breach.

203	GTA puts this case on the ground that the GTA change was more aesthetically satisfying than building a retaining wall between Plots 9 and 10.  Mr. Hodson, so they argue, would have regarded their plan as an improvement and would in any event have wished to save the additional cost.  GTA cites as an instance of Mr. Hodson’s attitude to the planners the fact that he did not follow Mr. Whitehouse’s advice in relation to the piling operations on the County Arms site (see Mr. Whitehouse’s letter to him dated 1st November 2002).  

204	GTA further contends that Mr. Hodson is prepared to disregard the terms of planning consent to the extent that the planning authority loses patience with him.  It further contends that the strength of the allegation is reinforced by the fact that Mr. Hodson built a wall alongside Plots 13 and 14 which was the subject of enforcement action and another unsuccessful planning appeal.

205	I have already given my general impression of Mr. Hodson.  I have concluded that he was prepared to commit breaches of planning permission when he thought that no action would be taken against him.  This is to be contrasted with his attitude to the problem of badgers on the site.  There he was prepared to engage consultants to work with the District Council to achieve a mutually acceptable solution to the problems.  There were many other matters which he was prepared to discuss until he obtained a solution which could be agreed.  He would have known that the GTA change was bound to attract an enforcement notice if he went ahead with building on the basis of the GTA change and without any discussion or agreement with the planning authority.

206	I find that Mr. Hodson, had he known about the GTA change, would not have gone ahead and built the house on Plot 10 in clear defiance, not only of the terms of the planning permission but also of the concerns of the planning authority which had been expressed in the clearest possible terms.  Either he would have gone to the planning authority to try to agree other changes in the property which would have made the GTA change acceptable, or he would have instructed GTA to produce setting out drawings which followed the architects’ drawings as closely as possible.

207	Would the house have had to be demolished or modified in any event?  GTA contend that the numerous other breaches of planning permission would have resulted in an enforcement notice which would have required the house to have been demolished in any event.  The onus is, therefore, on GTA to prove it.  The answer to this issue depends not only on the reaction of those in the planning office of the District Council, both before and after the appeal, but also on what would have happened on appeal once the officers of the District Council realised that Hodson would co-operate with the District Council and comply strictly with the enforcement notice.  At that stage, District Council officers took a more helpful approach.  In reaching my conclusion there is bound to be an element of speculation since there is no direct evidence from the District Council, nor inevitably from whoever would have dealt with the planning appeal.  There is, however, a good deal of internal evidence in relation to the documents which I have in front of me.

208	The actual decision on appeal notes the differences in the design of the windows from what was approved in the planning permission but concludes that these differences on their own may not be sufficient to justify the enforcement action.  Equally, the Inspector concludes that the use of facing with knapped flint may not be sufficient to uphold the enforcement notice (para.28).  After discussions with Mr. Hems, a senior planning officer of the District Council who had not, I think, been previously involved, minor amendments were made to the windows and doors and no fresh planning application was required by the local authority.  The concrete roof tiles and red facing brick were considered to be acceptable materials.	

209	GTA relies on the following changes:  (a) the change to the slab level;  (b) the increased height of the eaves;  (c) the change in facing materials;  (d) the GWP change increasing the north/south dimension by 0.34 metres;  (e) the change in fenestration.

210	GTA also rely on the planning history which emphasised the need to prevent the house being overbearing and the specific reduction by Mr. Denman (see Mr. Whitehouse’s letter to Mr. Hodson dated 25th September 2000 and Mr. Whitehouse’s letter to Mr. Denman dated 28th September 2000).  These were described to Mr. Hodson as “minor adjustment to floor levels”.

211	Hodson submits that this alternative scenario is no more than speculation.  There is no evidence from either the enforcement officer or the development control manager who would have been involved in serving the enforcement notice.  Equally, there is no evidence as to what would have happened on appeal if an enforcement notice had been served.  It is noteworthy that at the meeting on 18th January 2002 with the existing material, Mr. Denman felt that the District Council had “quite a good case”.  

212	Before reaching any conclusion it is appropriate to consider each element in turn and derive such assistance as one can from the evidence including the comments of the planning inspector.  

213	Increased height of eaves:  Mr. Whitehouse’s letter to Mr. Hodson dated 1st November 2002 was written when Mr. Whitehouse thought he was being blamed by Mr. Hodson for the decision that the structure on Plot 10 must be demolished and he needed to defend himself.  GWP’s solicitors wrote on GWP’s behalf on 6th April 2006 that the height of the eaves was increased as built.  Mr. Hodson in oral evidence accepted that there was some increase of 300 millimetres.  It is suggested that, taken with the increase in the finished floor level, this would have produced a net increase of 900 millimetres.  Mr. Hodson accepted 600 millimetres, saying that some measurements were incorrect.  The change is illustrated in Mr. Cleveland’s supplemental report showing the effect of the slab change and the increased height of the eaves as seen from the bus stop.  It appears to show, so GTA contends, a change seen from this perspective which increases the prominence of the house to an extent that would in any event have required the house to be demolished.

214	Hodson contends (a) that the height of the house did not increase by as much as 600 to 800 millimetres;  (b) that if it had been built in the correct position there is no evidence that the decision would have been taken by Hodson to raise the slab level to a similar extent;  and (c) the rejection of the chalet style designed by Mr. Denman indicates that the question of height was not as sensitive as the distance of the house from the boundary and Oxford Road.  There is no basis, Mr. Hodson contends, for supposing that had the house been in the approved position enforcement action would have followed.  I cannot say on the balance of probabilities that, taken in isolation, the increased height of the eaves would have resulted in enforcement action had the GTA change been made and the house been built in the appropriate position.

215	Change in facing materials:  it is said that knapped flint on the west elevation and bricks of unapproved colour on the south and east elevations were used in breach of condition 2 of the permission.  Condition 2 reads in full:

“No development shall take place until samples of the materials proposed to be used on the external surfaces of the development have been submitted to and approved in writing by the local planning authority.  The development should be carried out using the approved materials.”

216	As I have already noted, in its letter dated 15th July 2001, the District Council approved the schedule of materials for other properties.  In relation to Plot 10 the letter said:

“The roof should therefore be clad in plain clad tiles to match the former pub roof.  I would be grateful if you could confirm revised details for the roof of Plot 10.”

217	Mr. Hodson said in evidence that revised details had been submitted.  He agreed that the knapped flint had not been approved.

218	In relation to the meeting of Mr. Tobias and Mr. Whitehouse with Mr. Denman on 18th January 2002, I have already preferred the evidence of the meeting as it appears from Mr. Whitehouse’s letter to Mr. Hodson of the same date, which made no mention of height but concentrated on the GTA move.

219	In his report the inspector noted at para.28 that:

“Whilst this alone may not justify the enforcement action taken, it seems to me that the use of knapped flint facing, the design changes and the more prominent siting cause unacceptable harm to the character and appearance of this part of Stone.”

220	It seems clear that GTA is unable to establish on the balance of probabilities that the use of flint on its own could justify enforcement action.  There is no reference in the decision to the colour of the bricks.

221	The GWP change:  this is put forward as an alternative to the GTA change as a material cause for the enforcement action.  The change increased the overall north/south dimension by 0.34 metres and 10.9 metres for which planning approval had been given to 11.24 metres.  GTA contends that Mr. Whitehouse’s claim that the house was not built closer to the road as a result should be considered with care.  It is suggested that Mr. Cleveland’s overlay drawing would indicate to the contrary and the GWP change “may have had the effect of moving the house 0.34 metres closer to the road”.  It is also put on the basis that the “GWP change would inevitably have aggravated the GTA change”.  This view goes further than Mr. Cleveland, who says in his report that he does not know how the additional 0.34 metres was accommodated.

222	Mr. Whitehouse gave evidence that the GWP change did not contribute to the council southward movement of the house towards the Oxford Road.  The highest that Mr. Cleveland is able to put the contrary view is that he “tends to doubt” Mr. Whitehouse’s assertion.  I accept Mr. Whitehouse’s evidence.  I conclude that there is not sufficient evidence to substantiate the allegation that the GWP change contributed to, let alone was an alternative cause of the planning inspector’s decision.

223	Change in fenestration:  there is no doubt that the windows were not constructed in accordance with the planning permission.  The approved design shows small symmetrical openings and no door.  There was then some negotiation with the District Council officers and some changes were made.  There is no dispute, however, that Mr. Hodson built windows which did not accord with the designs as finally approved.  After the house had been demolished Hodson was able to negotiate changes which resulted in a final design somewhere between the originally approved drawings and the original as-built drawings.

224	The planning inspector concluded at para.24 of his report:

“… many of the openings (doors and windows) as constructed are different from those approved.  Many of the upper floor windows are now wider and more suburban in appearance.  These design changes may not on their own be sufficient to justify enforcement action, but the materials used on some elevations are criticised by the Council.”

225	Hodson concedes nevertheless that the breaches of planning permission were material to the actual decision even though they would not have provoked enforcement action on their own.  It claims that this contention is reinforced by the fact that changes in design to the windows which were made after the house had been demolished were not regarded by the planning officer as sufficiently significant to require a fresh planning application.

226	GTA contends also that the breaches of planning permission set out above taken together would have been sufficient to provoke a successful enforcement action.  

227	On the basis of my findings and taking into account the views of the experts, I conclude in all the circumstances on the balance of probabilities that successful enforcement action would not have been taken.  In saying this I do not suggest that the District Council would have been happy with Mr. Hodson.  If I am wrong in relation to this issue I conclude that the necessary changes to the flint, height and windows could have been remedied on the basis set out in the second joint statement of the quantity surveyors and Quantum Paper Number 7.

228	Finally, there are three other allegations made by GTA:  (a) GWP should have heeded a recommendation in the architects’ job book that the architect should, during work stage E, have checked whether minor amendments to detailed proposals went beyond the scope of the planning permission which had been granted;  (b) that GWP should have observed the GTA change when it received revision C of the GTA drawing;  and (c) either or both Hodson and GWP should have noticed the change in the position of the house at the pegging out stage.

229	With regard to (a) I accept the plea set out in para. 19(b)(i) of the Part 20 Defence, namely that the guidance in the architects’ job book (7th edition) only applies if the architect was acting as contract administrator, supervisor or the certifying architect or in any similar role.  GWP was not retained to do any of these things.

230	With regard to (b) GWP contends that the receipt by GWP of revision C (for construction) of the GTA drawing, which was issued on 29th June 2001, more than three months before construction on the house was begun, did not alter GWP’s role which at all times did not include any requirement to scrutinise and approve GTA’s drawing.  This seems to me to be correct.  GWP did not take on any additional or renewed obligation at this stage.

231	The claim in relation to pegging out is made in para.20(c) of the amended defence.  It is that if GWP/Hodson had not been specifically told of the change their failure to appreciate it, (ii), by looking at the position of the house when it had been pegged out was a new intervening cause.  In particular, it was an oversight so negligent that it could not reasonably have been foreseen by GTA.

232	In para. 18(d) of the amended Part 20 Particulars of Claim the allegation is made against GWP that GWP should have checked that the house was pegged out in the correct place.  In para.15.4 of the Reply, Hodson denies that GWP had any role in pegging out the position of the house on Plot 10.  Hodson’s case is that it was entitled to rely on the setting out drawings of GTA supplied by them to Hodson.  GWP’s defence is simply that its overall responsibilities on the project pursuant to its retainer did not include checking the pegging out on site.  GTA contends that this duty is imposed on Hodson and/or GWP because neither had (on this version of the facts) previously checked the GTA drawing.  Both were aware of the planning history and that GTA’s brief did not include planning matters.

233	I am satisfied that GWP had no responsibility for site supervision.  The question of GWP checking that the house was pegged out in the correct position does not arise.

234	I must consider the claim against Hodson on the basis that the work was being carried out by Hodson without any outside site supervision.  In those circumstances was Hodson under a duty to check the position of the house against the position in the planning permission?  As a factual matter it is clear that this was not done.  Mr. Sanghera agreed that he had the approved drawings on site but said that he did not consult them.  

235	I conclude that Hodson did not have the duty alleged by GTA.  They were entitled to assume at the pegging out stage, without any further checking, that the setting out drawings from GTA (which of course related to the whole site and not just to Plot 10) conformed with GWP’s drawing, which itself conformed with the planning permission.  Hodson had no reason to believe that the position of the house on Plot 10 did not conform to the position agreed with the planning authorities.  I note that Hodson was involved in building a number of houses in a number of developments and was entitled to assume at this stage that GTA’s setting out drawings complied with planning permission.  I therefore find for Hodson on this issue.

	ITEMS OF DAMAGE:

236	The quantum experts have been able to reach substantial agreement on a number of matters after a considerable amount of constructive effort.  The extent of the agreement is set out in Paper 7 which also indicates clearly the issues which I have to decide.  The items agreed, subject of course to liability, are as follows:

(2) Wasted construction costs	£29,700	
(3) Demolition costs	£4,900	
(4) Foundation and drainage	£20,978	
(5) One-off rebuilding	£21,288	
(6) Overheads (subject to the items below)	£23,394	
		
	£100,260	

237	In addition, (7) planning costs of £12,962 is agreed as a figure subject to the issue of causation.  The cost of surveyors’ fees (8) of £11,306 was agreed as a figure but subject to whether the sum claimed is properly classified as costs or damages.  The figure for (9) Mr. Hodson’s management time of £3,700, is agreed as a figure but the defendants say that there is no evidence that Mr. Hodson devoted any of his time to the rebuilding of the house.  In addition, there is a further claim for £5,250 for financing land costs.  There is also a claim for (11) £3,825, for interest on the loss of use of the proceeds of sale between the likely date of sale if the house had not been demolished and the actual date of sale.  There is also a claim for overheads (10.4) of £4,500 in respect of the salary of the site agent and supervisor, Mr. Woods, and a similar claim for the contract manager (10.8) of £2,550, and the commercial manager (10.9) of £1,250.  

238	Although these figures are agreed as figures GTA contends that Mr. Hodson cannot claim damages in respect of salaries that he would have had to pay in any event.  Mr. Hodson says that the charges represented unproductive time.

239	The claims for loss on sale (10) £45,000 and head office costs (10.10) £200, are not being pursued.

240	GTA claims as deductions the £8,000 which GWP advanced towards the costs of the planning appeal and £5,715 which GTA advanced for the same purpose.  GTA also claims that if it succeeds in part on its case it may be able to deduct the cost of remedying the flint and the cost of reducing window sizes and the ridge height of the “as-built”.

241	Taking these items in turn, (1) land costs £5,250: Hodson relies on the purchase price of £1.174 million and the evidence of Mr. Hodson that he incurred the additional costs of the loan from the likely sale date of September 2002 to June 2003.  GTA contend that the indices for house prices show an increase of at least 20 per cent from 2002 to 2003, which have more than offset any loss.  The house at Plot 10 was advertised on 30th May 2002 at £495,000.  The most expensive house was £550,000.  Plot 10 was the sixth most expensive.  The other three houses were much cheaper.  Mr. Hodson said in his evidence that he was achieving prices in the range of £435,000 to £450,000.  This house went on the market in autumn 2003 and was sold for £395,000 in February 2004.  This represented a significant reduction on the asking price.  I conclude that Mr. Hodson did not recoup any of his financing costs as a result of the later sale of Plot 10 and that he is entitled to recover the land cost of £5,250.

242	Planning costs, £12,962:  this represents the cost of the planning appeal.  Hodson contends that GTA agreed that it should pursue it and referred to GTA’s letter dated 13th March 2002 in which Mr. Tobias said that he believed that the planning officer was being vindictive and offered to provide all the support which he could in the appeal.  GTA claims that the costs were caused by Hodson’s unreasonable pursuit of the appeal.  It argues that it was not versed in planning and merely acquiesced in Hodson’s decision to appeal.

243	None of the experts who gave evidence before me was an expert in planning matters.  I am satisfied that GTA did not do more than acquiesce in the decision to appeal and is not estopped from arguing now that it was unreasonable for Hodson to pursue the appeal.  Hodson was faced with a difficult choice, particularly with planning officers who were being hostile.  In my view, it was perfectly reasonable for Hodson to pursue the appeal (bearing in mind also that GTA and GWP were prepared to contribute to the cost albeit to a limited extent) and they are entitled to recover the costs.

244	(8) Surveyors’ fees, £11,306:  this claim should be made as part of the costs in the litigation.

245	(9) Mr. Hodson’s management time, £3,700:  this claim is disputed by GTA.  It is put by Mr. Hodson on the basis that he has had to spend a very substantial amount of time dealing with the GTA change and the appeal and that this time was wholly unproductive at a time when he could have been working on other projects.  GTA contends that Mr. Hodson has not proved any personal loss.  In my view, this is a modest sum which represents far less than the time which Mr. Hodson spent on sorting out GTA change and the planning appeal.  It is recoverable.

246	(11) Loss of use of sale proceeds, £2,500:  this claim has apparently been reduced from £3,825 and is said to represent the loss of the use of the net proceeds of sale between the likely and actual dates being September 2002 and March 2004.  The net proceeds are calculated at gross proceeds of £395,000, less building costs of £196,500, and the land costs of £152,500 (total £349,000) at 4 per cent per annum.  GTA claims, as before, that any losses are outweighed by the gains as a result of the rise in the house market.  They also claim that much of the delay was caused by the planning appeal which was unreasonably taken.  I have already made my finding on the reasonableness of pursuing the planning appeal.  I also conclude that the house was sold at a significant loss not at a profit as a result of the delay. In these circumstances this claim succeeds.
 
247	(10.4) Site supervisor, (10.8) contract manager, (10.9) commercial manager:  GTA raised the fundamental question of whether Hodson can claim for the salaries of employees who would have been working for them in any event.    Hodson relies on the evidence of Mr. Sanghera in his second witness statement.  He said that at the time Plot 10 was being rebuilt, the other houses on the site had been completed and work on four later plots commenced as work on Plot 10 came to an end.  Mr. Sanghera also said that Hodson always employed a site agent to check the quality of workmanship on site.  In addition, Mr. Sanghera supported the claim that the contract manager and commercial manager were also involved in additional work for which Hodson should be reimbursed.  I accept Mr. Sanghera’s evidence that additional cost was incurred in relation to Mr. Woods acting as site agent and I find that the £4,500 is recoverable.  I am not satisfied on the balance of probabilities that any significant additional cost was incurred in respect of the contract manager or the commercial manager and I am not prepared to allow those claims.

248	In respect of the planning appeal Hodson concede that credit should be given for the £8,000 advanced by GWP which GWP has made clear it does not seek to recover.  With regard to the £5,715 which was GTA’s contribution to the planning appeal, the position is set out in Mr. Tobias’s letter dated 13th March 2002.  He makes it clear that he agreed to defer (not waive) payment of invoices to a value of £5,714.96 plus VAT and that the invoices would become payable when the appeal was concluded unless agreed otherwise at that time.  There has been no such agreement and GTA is entitled to deduct £5,714.96 from the damages.

249	Hodson is entitled to recover on full liability the following items on paper 7, namely items 1 to 5, 7, 9 and 11. Of the items on p.2 of the schedule, Hodson recovers items 10.1 to 10.7 inclusive, making £27,894.  From the sum of  £129,172 must be deducted £13,715 making a total of £115,457.

250	I therefore give judgment for the sum of £115,457.

APPENDIX:

	In order to assist the parties, I include a summary of conclusions on the agreed list of issues:

	(1)	The terms of GTA’s appointment are broadly as set out in para.11 of the particulars of claim, namely that GTA agreed for a fee to prepare a setting out plan by merging the survey plan and GWP architects’ drawing.  I find that if GTA went beyond merging the survey plan and GWP’s architects’ drawings, GTA did not comply with contractual obligations and should have notified GWP and/or Hodson or otherwise brought the change to their attention of the position or lay-out of the houses and plots which went beyond what would reasonably be regarded by professional engineers as changes reasonably necessary to give effect to the agreed brief.

	(2)(a)	GTA did not notify or otherwise inform GWP and/or Hodson that the GTA change was being made.

	(2)(b)	The supply of the GTA drawing without more was not sufficient to inform GWP and/or Hodson.

	(3)	GTA were in breach of contract and/or negligent in the following respects alleged in para.18 of the particulars of claim, namely paras. 18(1), (2), (5) and (7).

	(4)	The defence plea in para.20 of the amended defence that any loss or damage suffered by Hodson was caused by its own or GWP’s negligence or partially by Hodson’s negligence is rejected.

	(5)	The defence pleas that Hodson’s loss and damage would have been incurred in any event because it would have made no difference if Hodson had been informed of the GTA change or because the structure built on Plot 10 would have had to be pulled down because of Hodson’s other alleged breaches of planning permission are rejected.

	(6), (7)	The findings on damages are largely now agreed and have been set out in the section in the judgment relating to damages.

	(8)	GWP was under no duty to secure that the planning permission was complied with.

	(9)	GWP was not in breach of contract and/or negligent in the respects alleged under para.18 of the amended Part 20 particulars of claim

	(a) 	in relation to failing to prevent breaches of planning permission by warning Hodson of them;  

	(b) 	the GTA change was not readily apparent;  

	(i) 	GWP was not involved with supervising the work on site so the recommendation of the architects’ job book did not apply;

	(ii)	GWP’s fax message dated 15th March 2001 did not show that GWP was alive to the possibility of the GTA change or any related problem;

	(iii)	the correspondence with the planners was not relevant to the contract with GTA nor to the task agreed to perform;

	(iv)	GWP did not know of the GTA change;

	(v)	receipt by GWP of revision C of the GTA drawing issued on 29th June 2001 would only have been relevant if GWP had contracted to supervise the construction of the house.  It had not so contracted;

	(c)	GWP was not notified of the GTA change by Mr. Jameson as alleged in para.15(c) of the defence.

	(d)	GWP was not involved in the pegging out process.  Hodson was not contributorily negligent in failing to check GTA’s setting out drawing against GWP’s architects drawing at the pegging out stage.

	(e)	GWP did not place any reliance on GTA to comply with planning permission except that GTA knew that planning permission would be necessary in order for the house to be built on Plot 10.  GTA was entitled to assume and should have assumed that GWP’s architects’ drawing complied with the planning permission.  GWP was under no obligation:

	(i)	to inform GTA of the contents of the correspondence with the District Council;

	(ii)	to supply GTA with a copy either of the permission or the correspondence;  or

	(iii)	to provide a definitive minimum dimensional separation of the house from the Oxford Road boundary.  It was of course open to GTA to request such information if it felt that the information was necessary to enable GTA to perform the task which it had contracted to perform.

	(10)	There was no breach of duty by GWP.