Livin’ in a land down under

Author: Gillian Birkby

There has been a growing trend in London to construct basements as a means of extending properties. Bearing in mind that land values in the capital remain high (and are rising still higher), add to the mix the historic character of certain boroughs which limits the scope to extend houses above ground, it is understandable that the number of applications for basement extensions has soared in recent years. For instance, in the Royal Borough of Kensington and Chelsea the number of planning applications with a basement element increased from 46 registered cases in 2001 to 307 last year.

The benefit of such works is obvious; however the development itself may take a great deal of time (on average longer than 12 months), cause disruption to neighbours because of dust, noise, vibrations, and necessitate entering into a party wall agreement. There is also the risk that these subterranean developments will get into deep water, as demonstrated in a recent High Court action.

The claimants wanted to make fundamental changes to the layout of the ground and lower ground floors of their home. The house was on a sloping site leading down to the River Thames. The lower ground floor was below ground level at the front of the house but above ground level at the rear. The project proved to be a disaster; six weeks after the basement works were apparently complete and the claimants moved in, they found extensive damp in the lower ground floor. Experts were called on and it was concluded that no proper waterproofing had been carried out by the contractor. The claimants blamed both the contractor and their architect; however the contractor went bust before trial. The action continued against the architect on the basis of negligence, including a claim in relation to the advice (or lack of it) on the treatment required for the lower ground floor to prevent damp. The claimants sought to recover against the architect for 100% of the losses they had incurred. Initially the architect denied liability, contending all the problems were the result of defective workmanship by the contractor. By the end of the trial liability was effectively admitted, however the evidence indicated that the contractor had been jointly to blame for many of the issues the court considered. The architect therefore sought to rely on a ‘net contribution clause’ which it argued, apportioned the liability for the loss as between the architect and the contractor even though the contractor was no longer solvent and could not pay for the portion of the damages allocated to it. The judge, Mr Justice Edwards-Stuart, disagreed; the drafting of the clause was ambiguous.

The judge interpreted the contract in a manner which was most favourable to the consumer claimants as there was doubt over the clause’s meaning. Potentially, a well worded clause could have resulted in the architect being liable only for his proportion of the loss; this would have resulted in a significant difference in the amount of damages to be paid by the architect. It can be risky going underground.

Gillian Birkby, Head of Construction, Fladgate LLP

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