Messy Situation

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The Message:

Developer escapes liability for failing to undertake obscure search.

The Case:

Northumbrian Water Limited v Sir Robert McAlpine Limited [20 May 2014] raises important questions on the extent of investigations and due diligence required before a developer starts work on site.

Northumbrian is a statutory sewerage undertaker and its public sewer ran under a street close to Newcastle-upon-Tyne centre. McAlpine was carrying out redevelopment works on a site adjacent to the street. The redevelopment required the sinking of concrete piles to support a new building and shafts were drilled using an earth auger and filled with concrete to create piles.

There was a private sewer under part of the site being redeveloped at a depth of over three metres. This sewer connected to Northumbrian's public sewer. The private sewer was not shown on Northumbrian's current plans of the sewer system, but it appeared on a plan dating from 1908 held in Newcastle Discovery Museum.

While McAlpine was drilling the shaft to form a pile, an open connection was created with the private sewer. When concrete was poured to form the pile, it escaped from the shaft into the private sewer and from there into the public sewer. The concrete set, partially blocking the public sewer.

Northumbrian brought proceedings to recover its substantial expenses in removing the blockage. Its claim was based on alleged nuisance and negligence. It stated that McAlpine had failed to take reasonable care to identify the existence of underground services formerly present at the site and had failed to take adequate precautions to ensure the public sewer's safety. In particular, McAlpine failed to search the archives in the Discovery Museum. The case depended entirely on the adequacy of McAlpine's measures to investigate the site before starting work.

Northumbrian failed in the High Court and appealed, but it also lost in the Court of Appeal. The Court considered that the lower court was correct to dismiss the claim in negligence. Although there was a recognised risk when pouring concrete into a shaft, that some might escape into sub-soil voids, there was no reason here to consider that it might migrate beyond the site, much less into a sewer under an adjoining street.

No expert evidence was called to support Northumbrian's case that McAlpine had failed to exercise reasonable skill and care. The 1908 plan was discovered only after a search lasting several hours by a McAlpine employee.

The lower court was entitled on the evidence to reject the contention that a reasonably competent contractor would have searched local museum archives for several hours to ascertain whether a drain had existed on the site a hundred years earlier.

The tort of nuisance involves interference by one occupier of land with another's enjoyment of land. The Court said that if McAlpine's use of its land was reasonable, it would not be liable. There was no general rule imposing strict liability (without fault) for nuisance causing physical damage to property. McAlpine would also not be liable for damage caused by an escape that is not intended or reasonably foreseeable, subject to an exception which did not apply here.

McAlpine's use of the site involved usual methods of working and there was no reason that it should have foreseen that concrete might find its way onto neighbouring land and damage the sewer. McAlpine was, therefore, not liable in nuisance.