Neutral Citation Number: [2008] EWHC 724 (TCC)
IN THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY & CONSTRUCTION COURT

BIRMINGHAM CIVIL JUSTICE CENTRE
33 BULL STREET
BIRMINGHAM B4 6DS

Date of trial: 21, 22 & 23 January 2008
Date of draft judgment: 21 February 2008
Date of judgment: 14 March 2008

Before 
Her Honour Judge Frances Kirkham
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J. S. BLOOR LIMITED
Claimant

and

PAVILLION DEVELOPMENTS LIMITED

Defendant
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Miss Karen Gough of Counsel (instructed by Davies and Partners) for the Claimant
Mr Noel Dilworth of Counsel (instructed by Wayne Leighton) for the Defendant
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JUDGMENT
Introduction
1.	The claimant (“Bloor”) and defendant (“Pavillion”) are both property developers.  Bloor owned land adjoining Okus Road, Swindon.  Bloor split the site, selling plots to various parties, including:
to Pavillion to build a care home;
(in about early 2005) to Miller Homes to build residential units; and
(in early 2006) to Bromford Housing Association.  
2.	The contract between Bloor and Pavillion, whereby Bloor sold land to Pavillion, was dated 16 July 2004.  It included obligations for each party in relation to work to be carried out.  By clause 12.5.1 of the contract, Bloor was obliged, within six months of commencement by Pavillion of construction of the care home, to construct or procure an access road which runs approximately south from a bellmouth at its junction with Okus Road; this road is referred to as the yellow road.  The yellow road was to be built to base course tarmac level but without kerb or street lighting.  By clause 12.5.2, Bloor was to complete or procure completion of the road, kerbs, footpaths and street lighting to adoption standard as soon as reasonably practicable and Bloor had to maintain the road. 
3.	By clause 11.19.1 Pavillion was obliged, within three months of completion by Bloor of its obligation under clause 12.5.1, to build a road (referred to as the orange road) to base course tarmac level.  By clause 11.19.2, that road was to be completed, with kerbs and street lighting, to adoption standard, as soon as reasonably practicable, and Pavillion had to maintain this until adoption.  The orange road runs due east from the yellow road, along the southern boundary of the care home plot, with a section then running due south.
4.	In fact, in June 2005, Bloor built both the yellow and the orange roads.  Their case is that they built the orange road by mistake.  Bloor claim £93,072.73 including VAT, said to be the cost to them of building the orange road, on the basis of unjust enrichment in respect of services rendered.  Liability and quantum are in dispute.  This trial has concerned liability only, as the parties failed to complete preparation for the quantum issues before trial, notwithstanding court orders made with a view to ensuring that all matters could be dealt with at one trial.  The parties do, however ask the court to make findings where possible to assist resolution of quantum issues if the matter proceeds beyond this stage.
5.	Bloor no longer rely on their earlier case that Pavillion knew, before work began or was complete, that Bloor would build the orange road.  They do not allege acquiescence on the part of Pavillion.  Bloor’s case is based on acceptance by Pavillion and incontrovertible benefit.  They contend that, by mistake, they discharged Pavillion’s obligations under the contract.  Pavillion was able to and did use the road which Bloor had constructed.  
6.	Pavillion’s case is that it is a settled principle of English law that a landowner is not obliged to make restitution to the mistaken improver for any benefit attaching to land.  Pavillion’s secondary case is that the evidence as to alleged mistake on the part of Bloor is so confused that it cannot form the basis of a claim for equitable relief.  Further, it cannot be said that Pavillion has received an incontrovertible benefit.  Pavillion also say that Bloor constructed the road differently from and more expensively than the way in which Pavillion would have chosen.   
The law
7.	In Goff & Jones, The Law of Restitution 7th edition, the learned authors deal with the situation where a person renders services which the other has not requested.
8.	Paragraph 6-001: “A person who renders services to another, who has neither requested them nor freely accepted them, has generally no right to recover from the recipient remuneration for the work so done or recompense in respect of any benefits, however great, conferred thereby.  Such a person is in a different position from the payer of money under a mistake.  The receipt of money incontrovertibly benefits the recipient.  But the receipt of services does not necessarily enrich its recipient and, unlike money, services, once rendered, cannot be restored.  Consequently, it is not enough that the claimant should have rendered the services under a mistake; in principle, he must go further and shows that the services were requested or freely accepted by the defendant.  This is the general rule but … the courts are now ready to accept that a restitutionary claim grounded on mistake may lie, even in the absence of free acceptance, if it can be shown that the defendant has been incontrovertibly benefited by the services which have been rendered.  It is only in recent years that English courts have recognised the principle of incontrovertible benefit.  Moreover, it is not, as the law now stands, of general application.  A person who mistakenly improves another's land cannot claim the benefit of that principle.  Historically the law of real property has developed very differently from the law of personal property….. English law denies the mistaken improver, whose improvements have become attached to the land, any remedy if the landowner has not acted unconscionably.”
9.	In paragraph 6-002 the learned authors consider restitutionary claims arising from mistaken improvement to land.  "The claimant improves the defendant's land, mistakenly thinking that he owns it.  The defendant did not request the improvements and, given their nature, they cannot be returned.  The claimant's restitutionary claim will then fail.  But equity may grant relief if the defendant knew that the claimant was mistaken but made no attempt to disabuse him of his mistake.”
10.	In paragraphs 6-007 and 6-008, the learned authors consider other restitutionary claims, ie claims which do not relate to mistaken improvement to land:  "The defendant should be required to make restitution only if the claimant can prove that the defendant has been incontrovertibly benefited by the receipt of the services.  The defendant will be incontrovertibly benefited if the claimant can show that the defendant has gained a financial benefit, readily realisable without detriment to himself, or has been saved a necessary expense.  In such circumstances the equities of the claimant's restitutionary claim are normally more compelling than the defendant's plea that he did not request or freely accept services which he is now in no position to return."
11.	I also am assisted by the judgment of the Privy Council in Blue Haven Enterprises Ltd v Tully [2006] UKPC 17.  In that case a landowner, who must have expected to bear the expense of developing land, had been enriched at the expense of another who had carried out the work.  Lord Scott reviewed the law relevant to the question whether, in those circumstances, the landowner had an equitable obligation to compensate the improver.  At paragraph 23 he endorsed the five probanda formulated by Fry J in Willmott v Barber (1880) 15 Ch D 96 as “a convenient and authoritative yardstick for identifying the presence, or absence, of unconscionable behaviour on the part of a Defendant sufficient to require an equitable remedy….”.  Lord Scott also referred to the discussion of unconscionable behaviour by Oliver J in Taylor Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133.  In Blue Haven the claimant accepted that it was necessary to show that the landowner had done something or just stood by in circumstances where his actions or inaction would make it unconscionable for him to refuse to reimburse the improver.  The Privy Council did not criticise that position.  
Background
12.	Bloor and Pavillion each applied for planning permission to develop their respective plots, Bloor to build 520 residential units and Pavillion to build a care home.  In each case, planning permission was at first refused.  
13.	After their initial application was refused, Bloor reduced the number of residential units to 478, and planning permission for that development was granted in April 2005.  Prior to the grant of planning permission, Bloor had invited tenders for work to the retained land, including to construct roads.  In about June 2005, Bloor began work on the land it had retained.  Bloor engaged C.J.L. Construction Ltd (CJL) to construct roads.  Bloor say that, by mistake, their surveyors, Mr Wyatt or Ms Carey, invited tenders for work which included the orange road.  Neither Mr Wyatt nor Ms Carey has given evidence.  Although both have now left Bloor’s employment, this occurred, in Mr Wyatt’s case, only one month before proceedings were issued and, in Ms Carey’s case, shortly after proceedings were issued.
14.	Pavillion engaged DWA Architects to assist them with planning and design.  Pavillion had expected its application to be dealt with earlier in 2005 but in the event, planning permission was granted to Pavillion at a meeting on 6 July 2005.  Meanwhile, Pavillion had invited tenders for the care home work.  Healthcare Development Services Limited (“HDS”) were told in early July that they were the preferred bidder.  Mr Stockill of DWA knew that Pavillion’s practice was to begin work as soon as possible after the grant of planning permission.  Accordingly, as soon as permission had been granted, HDS were instructed to commence work on 11 July 2005.  
15.	Mr White of HDS visited site a few days before that date.  Mr White has given evidence.  I found him to be straightforward and clear in his evidence and I have confidence in it.  Mr White noted two problems on that visit.  One was that the main access road on to the site (the yellow road) was yet to be completed and was obstructed; this made it difficult for HDS to gain access to the Pavillion land.  The second was that the care home site had been used as a dumping ground for spoil, which made it impossible for HDS to begin work.  Mr White contacted Mr Stockill by telephone to raise these concerns, assuming (correctly) that Mr Stockill would in turn raise these with Bloor.  
16.	Mr Stockill had visited the site in January 2005.  His next visit was on 9 August 2005.  I accept his evidence that neither he nor anyone else from DWA had visited site between January and August 2005.  Bloor have criticised Mr Stockill for not having visited site between January and August 2005.  So far as I am aware, Pavillion does not criticise Mr Stockill, and I consider Bloor’s criticism of Mr Stockill to be unjustified.  I accept that no one from HDS visited site before Mr White’s visit in early July 2005 in the immediate run up to the start of work.  I accept that neither Mr Baudet, of Pavillion, nor anyone else from his company had visited site at all.  
17.	It is now not disputed that the first that DWA, HDS or Pavillion knew that Bloor had constructed the orange road was on 13 July 2005 when Mr Lusty of Bloor informed Mr Stockill of this by telephone.  
18.	Mr Stockill wrote two faxes on 12 July.  In one, he noted that the access to Pavillion’s land had not yet been formed, and asked for Bloor’s proposals to provide proper access.  In the other Mr Stockill recorded that HDS had intended to begin work the previous day but had been prevented by the deposition of spoil from the surrounding site on Pavillion’s land.  
19.	Mr White emailed Mr Stockill early on the morning of the 13 July 2005, recording the “two major problems” which HDS had encountered and prevented their beginning work, namely the deposition of spoil on Pavillion’s land and the fact that the yellow access road had not been formed.  Mr White recorded that he had been informed that the access road would be tarmaced by the end of the following week.
20.	Mr Lusty and Mr Stockill spoke by telephone on 13 July.  In that call, Mr Stockill learned that Bloor had constructed the orange road.  Mr Lusty wrote on 13 July.  He complained about the tone of Mr Stockill’s letters, and claimed that the spoil had come not from Bloor’s but from Miller Homes’ land.  He went on to say:  “With regard to the access, I can confirm that we would be more than happy to meet with you, and your representatives, to provide an access at a point you see fit which can be carried out in a very short period of time….”.  Mr Lusty then wrote “Whilst writing I would also confirm, as was brought to your attention during today’s telephone conversation, that the access road forming part of the care home development has indeed been constructed by this company currently at our cost, but indeed it is a contractual obligation of your clients and we would obviously be seeking recompense for same in due course.  The reason this was constructed at the time of our infrastructure being commenced on site was to ensure that the junction was in place and formal permanent access could be supplied to yourselves hence creating a potential time saving of something in the region of three months.”
21.	Mr Stockill wrote to Mr Lusty on 18 July 2005.  He said: “With regards to the access road (forming part of the care home development) your comments are noted and we assume you will forward full details in due course for our consideration.  We assume that this access road at this stage will be finished off to base course level only, with the topping and adoption procedures left for later.  Clearly, and we are sure you would agree, it would be nonsensical for the later stages of completion of these works to be completed by others and therefore assume that this will be dealt with as part of the other site works.  If this is your intention it would be appreciated if you could confirm accordingly along with all relevant details and costings etc for consideration.”
22.	There followed correspondence concerning the removal of spoil and access by way of the yellow road.  In his letter to Mr Stockill dated 20 July 2005, Mr White noted: “As can be seen from the photographs, the road has not been tarmaced.  It has been confirmed to me by Bloor that it will be tarmaced before the end of this week to enable us to make a start on Monday 24 July.”  
23.	Mr Stockill wrote to Mr Lusty on 25 July: “To have progressed with the formation of this roadway without our being informed has not been well received.  Your actions with this matter have obviously affected our contractual start date and our client’s contractors are already over two weeks in delay both as a consequence of this and the problem of deposited spoil on the site…..As far as your expectations are concerned that our client will pay your full costs of forming the roadway seems somewhat presumptuous bearing in mind that he was not informed of your intentions first.  Only our client can deal with this matter though we understand that they are extremely concerned that they have been unable to commence works when they wanted to.”  Mr Lusty replied on 27 July contending that construction of the orange road had been of benefit to Pavillion as Pavillion would “now have clean and permanent access to the development area on a proper hardstanding and metalled road in place of what otherwise would have been a temporary construction access.”
24.	HDS began work on site in early August 2005, ie some weeks later than Pavillion had wished.
25.	A meeting was held on site on 9 August 2005, attended by representatives of Bloor, HDS and DWA.  The minutes record that Bloor considered that Miller Homes were responsible for the dumping of spoil on Pavillion’s land.  So far as the orange road is concerned, they note: “The final construction of the roadway was discussed with conclusions reached including: [Mr Stockill] to be provided with copies of the construction details; the timing of completion of the roadway (topping off) and adoption to be discussed again in about 12 months’ time, with sense to prevail regarding topping off to avoid damage etc; the responsibility for the completion and adoption of the roadway rested with [Pavillion]; cost details of the road construction to be forwarded to [Mr Stockill.]”  It was understandable that Mr Stockill should have requested construction details: Pavillion wanted to be sure that the contractual specification had been met; Mr Stockill wanted to see whether matters could be resolved “with minimal commercial impact” to Pavillion, and to understand whether Bloor might be morally entitled to some payment.  
26.	In February 2006, Bloor sent Pavillion an invoice in the sum of £104,158.46 plus VAT, for the orange road construction.  DWA asked for details of the work carried out.  Bloor sent an engineering layout drawing and invited DWA to look at other drawings on site.  On 20 April 2006, Bloor sent DWA details of CJL’s quotation for the highway and other work.  
27.	In an internal Bloor e-mail, dated 22 June 2006, Mr Holloway of Bloor wrote to Mr Lusty: “CJL were pressing on with realigning the main access road onto a new footprint as per planning, and during this process carried out [work to the orange road] in an attempt to help speed up access for the nursing home.”  The following day, ie 23 June 2006, Mr Holloway emailed to Mr Baudet of Pavillion: “To assist you and your programme (you had been significantly delayed through planning) and as a gesture of goodwill we accelerated our programme so that entrance works and road widening were completed in July 2005.  Concurrently and for mutual practical purposes, by agreement with DWA, to further assist your programme (the two roads are linked, share drainage and services etc) and provide a hard access to your build area for deliveries and so on we also constructed the road for which you were liable on the understanding that Pavillion would recompense Bloors the cost for doing so.  Your road was therefore completed in July 2005 also prior, therefore, to your start on site…….I would like to think that Pavillion will honour the agreement made between DWA on your behalf and ourselves …..”.  In fact, no such agreement had been reached.  Mr Stockill was, understandably, concerned that Bloor had made that allegation.
28.	Pavillion asked HDS to provide an estimate of the cost of a contractually compliant road.  HDS provided this on 7 September 2006, in the sum of £32,069.66.
29.	It would appear that Bloor arranged for spoil removed from Pavillion’s land to be moved to Bloor’s own land for a while.  Nevertheless, Bloor’s case has, consistently, been that Miller Homes had dumped spoil on Pavillion’s land.  Pavillion have not challenged that.  It is apparent, both from the correspondence and the evidence he gave at trial, that Mr Lusty reacted badly to the initial suggestion by Mr Stockill that Bloor had been responsible for the dumping of spoil.  
30.	Bloor take issue with DWA’s suggestion that HDS could not begin work because they had not been able to gain access to the Pavillion site as the yellow access road was not ready.  However, it seems to me that Mr Lusty did not know in detail what was happening on site during the summer of 2005.  He visited site only infrequently – perhaps once a month.  I am not persuaded by Mr Lusty’s suggestion that access was nevertheless possible along the old concrete road leading from Okus Road.  Mr White, on the other hand, did know the position.  I prefer Mr White’s evidence that HDS were initially unable to use the yellow road because it was blocked and that this impeded access to the Pavillion site during July 2005.  However, there is no detailed analysis of relevant events to enable me to conclude whether or not HDS were delayed in commencing work by reason of the blocked access, the need to remove spoil wrongfully dumped on the Pavillion land, a combination of these, or some other event.  
31.	When Mr Stockill informed Mr Baudet of Pavillion that Bloor had constructed the orange road, I accept that Mr Baudet’s reaction was one of “horror” that Bloor had done this without consulting Pavillion.  As I set out below, there were significant disadvantages to Pavillion in Bloor having constructed the road.  Bloor lack imagination in failing to understand Pavillion’s reaction.  Mr Baudet, understandably, asked Bloor to provide evidence to support Bloor’s contention that Mr Lusty of Bloor and Mr Stockill on behalf of Pavillion had agreed that Bloor would do the work.  Bloor were unable to meet Mr Baudet’s request for evidence of an agreement as, in fact, no such agreement had been reached, as Bloor must have known.  It is not now suggested that Pavillion, whether through Mr Stockill or otherwise, agreed in advance or after the event to pay the cost of the road, although that was Bloor’s position in some of the correspondence.  It is clear to me that Mr Stockill did not reach any agreement on behalf of Pavillion that the latter meet the cost of the road.  
32.	Nevertheless, and not surprisingly given the commercial context, Pavillion were willing to explore with Bloor how much the road had cost and to see whether an amicable solution could be found.  However, Bloor were not receptive.  Mr Lusty’s reaction was curious.  He said that he had been “incensed” by Mr Stockill’s first fax concerning the spoil.  He was, apparently, affronted by Mr Stockill’s initial assumption that the spoil had been dumped by Bloor, not by Miller Homes.  Bloor have adopted a posturing and aggressive attitude to the questions of the orange road construction, blocked access and the spoil.  They reacted badly to Pavillion’s suggestion that a solution might be found which gave recognition to Pavillion’s claimed losses relating to their delayed start on site (which Mr Stockill put at  three weeks, by reason of the spoil and blocked access road) and the additional cost, of some £20,000, which Pavillion claim to have incurred in removing soil to reduce the care home site to a particular level.  Had relationships been smoother, one can see that the parties may well have arrived at an amicable resolution.  
33.	Although clause 11.1.7 of the contract contained an obligation on the part of Pavillion to notify Bloor when Pavillion obtained planning consent, Pavillion failed to comply with that obligation.  Bloor complain about this, contending that, had Pavillion given notice, then Bloor could, for example, have ensured that Pavillion’s land was not blocked by spoil.  I make no findings in relation to this as, in my judgement, little if anything turns on this.  
Had the orange road been completed to base course tarmac level?
34.	An issue arose on the last day of trial, namely whether the orange road had indeed been completed before Pavillion became aware of its having been constructed by Bloor.  Bloor’s case, until the last day, was that the orange road had been completed by 13 July 2005.  At trial, but after Mr White had given evidence, Bloor began (for the first time) to explore the proposition that the orange road had not been completed to base course tarmac level as at July 2005 when HDS had wanted to begin work. 
35.	Mr Lusty’s evidence was that Bloor’s contractor had constructed the entire length of the orange road to base course level.  In his letter of 25 July 2005, Mr Lusty referred to a “metalled” road, which suggests a road completed to the stage required by clause 11.19.1.  Mr Holloway of Bloor had no information about matters before January 2006 when he first became involved and could give no evidence on this point.  Mr Stockill did not visit site between January and August 2005 and could give no direct evidence on this point.  This was not explored with Mr White.  He is the only witness who might have been able to give direct evidence on this point.  
36.	Bloor have not persuaded me that, despite their own evidence to the contrary, the orange road had not been completed as at mid July 2005.  Nor am I able to conclude that Pavillion asked Bloor to complete to base course tarmac level.  This aspect of Bloor’s case is untenable.  
Did Bloor build the orange road by mistake?  Was there any benefit to Bloor in having the orange road?
37.	In his e mail of 22 June 2006 Mr Holloway gave the impression that the orange road had been built as a result of a mistake on CJL’s part.  In paragraph 7 of his witness statement, Mr Lusty blames CJL for the mistake.  However, Bloor no longer blame CJL for the mistake.  Bloor’s case now is that there was oversight on Bloor’s part when engaging CJL.  I have referred earlier to the lack of evidence as to how CJL were instructed.  There is no direct evidence to assist me with this.  Neither Mr Lusty nor Mr Holloway could give detailed evidence on this point.  
38.	The correspondence I have quoted earlier shows that Bloor advanced different reasons from time to time for having built the road.  Initially, on 13 July 2005, Mr Lusty said that they had done so in order to assist Pavillion.  He repeated that position in his letter of 27 July.  There was no foundation for that assertion.  By June 2006 it was clear that Pavillion were unwilling to pay.  By then one would expect Bloor to consider carefully how they approached this question.  In his email of 23 June 2006, Mr Holloway states that Bloor constructed the orange road “for mutual practical purposes” ie because it suited Bloor as well as the benefit which Bloor presumed it gave to Pavillion.  As Mr Holloway states, the yellow and orange roads are linked.  Mr Holloway’s email makes it clear Bloor considered that that there were potential benefits in having drainage and services in place at an early stage.  The tone of that email suggests that Bloor may have intended to build both roads, and this was not merely a mistake on Bloor’s part.
39.	I accept that there were some benefits to Bloor in having the orange road built earlier than the contract had envisaged.  These include:
Good access to the adjacent plot which was to be sold for affordable housing, and which Bloor subsequently sold to Bromford Housing Association in February 2006.  Pavillion’s case is that a completed road would have been more attractive to potential purchasers of the affordable housing site than a situation where an adjacent developer had an obligation to construct a road.  The constructed orange road gave easy access to the affordable housing site.  In addition, the fact that the orange road was built with provision for foul drainage and incorporating service ducts was probably of benefit to the ultimate purchaser of the affordable housing land.  Accordingly, the fact that there were such drainage and ducts, and a constructed road, is likely to have amounted to a benefit to Bloor. Mr Lusty accepted that, in an open market, these might well have been factors.  Here, however, he said that the site was, in any event, attractive to housing associations generally, and there was unlikely to be any cost advantage to Bloor, as development of the site for affordable housing would have to be undertaken within the constraints imposed by Housing Corporation guidelines.  I conclude that there was probably some non-pecuniary benefit to Bloor in having the road constructed at an early stage, with drainage and service ducts, as this is likely to have rendered the affordable homes site more attractive.  
The orange road enabled access to adjacent sites for eg movement of plant.  Bloor themselves used the orange road for a short time.   
Bloor were to build a sub station south of the orange road.  It is unrealistic for Bloor to suggest, as they do, that the contractor may not have used the orange road for access to construct the sub station: it is likely that the road was used for such access.  
40.	I conclude that Bloor enjoyed some non-pecuniary benefits from having the orange road constructed earlier than the contract had envisaged.  
41.	Bloor accept that they must prove that they made a mistake in building the road.  They have provided no direct evidence to support that case.  Their own case on this point has changed over time.  The benefits to Bloor in having the road built at an early stage tend to support the view that this was no mistake.  Bloor have not discharged the burden of proving that they made a mistake in building the orange road 
Benefit or disadvantage to Pavillion?
42.	Bloor suggest that there was a benefit to Pavillion in having the road constructed at an early stage.  
43.	Plainly, a benefit to Pavillion was that Bloor paid for the road to be constructed.  Pavillion saved what it would have cost them to do the work. Pavillion were also able to use a road at an early stage. 
44.	No design for the orange road had been prepared by the time HDS began on site.  I accept Mr White’s evidence that the road construction was not critical to Pavillion’s progress on site at that early stage.  The work of Natta, the groundwork contractor, would take at least four months; Pavillion had plenty of time to arrange for other contractors to begin work and for the detail of this to be determined.     
45.	It is clear that there were disadvantages to Pavillion:
Pavillion were deprived of the opportunity to design and procure the work to their specification.  Pavillion nevertheless remained liable (for example, pursuant to their obligations under occupiers’ liability legislation) in relation to a road which had been designed and built by others.  
Pavillion lost the opportunity to negotiate the cost of the road work and the terms on which it would let that contract.  The sum which Bloor claim is considerably higher than the sum which Mr Baudet had budgeted to pay for the road construction.  
Pavillion were deprived of the opportunity to enter into a contractual relationship with the contractor undertaking the road work.  If a problem arises with the work undertaken, there are obvious advantages to a party to have the benefit of such a contractual relationship and obvious disadvantages absent such a relationship.  For example, Pavillion lost the opportunity to have direct control over the road contractor if problems with work or materials had come to light when the road was to be adopted.  (I note that no problems were encountered.)
As Mr Baudet explained, Pavillion would normally seek collateral warranties from contractors.  He would have wished to do so in this case, as he was proposing to sell on the project.  Pavillion lost the opportunity to obtain such warranties.  (I note, however, that there is no evidence that the absence of such warranties in fact affected the price of any onward sale.)  
Mr Baudet said that Bloor’s action might have given Pavillion difficulty with funders, who sometimes wish to approve contractors.  (Again, I note that there is no evidence that there was any such difficulty in this case.)
Mr Baudet confirmed that Pavillion would have been willing to pay for the road, had appropriate warranties been put in place and provided an acceptable sum could be agreed.  So far as I am aware, Bloor have not volunteered any warranties or other device to give Pavillion a direct contractual relationship with CJL.  
Conclusion
46.	There is no evidence that Pavillion knew or ought to have known that Bloor intended to build or were building the orange road.  There is no evidence that Pavillion acquiesced in its construction.  
47.	Once the road had been constructed, Pavillion had no real alternative but to accept it.  Bloor do not suggest that Pavillion should, for example, have taken it up and then rebuilt it later.  It would not have made any sense to take it up.  It would have been artificial for Pavillion not to have used it.  Bloor have not offered to pay the cost of digging up the road.  Such use in the circumstances here does not in my judgement amount to acceptance of a benefit such as to constitute unconscionable behaviour or which should give rise to an entitlement to equitable relief.  
48.	It is very clear from the analysis in paragraphs 6-001 and 6-002 of Goff & Jones that improvements to land fall into a different category from other restitutionary claims.  Here, there can be no doubt that construction of the road was an improvement to the land.  Equity will offer relief to the mistaken improver only where the land owner has acted unconscionably.  The decision in Blue Haven assists determination of this case.  In Blue Haven the landowner had done nothing positive in relation to the improvements; he had not stood by and allowed work to be carried out; there was no question of acquiescence; there was no instance of unconscionable behaviour.  So here: there is no question of acquiescence by Pavillion and no instance of unconscionable behaviour on their part.  Pavillion were not guilty of unconscionable behaviour.  Bloor are denied relief.  Their claim fails on that ground alone.
49.	Miss Gough for Bloor submits that Blue Haven and earlier decisions should be distinguished, as, unlike the circumstances here, those cases were concerned with proprietary claims to land.  I am unable to accept that submission: by the time the Blue Haven matter came to trial, the claim to the land had been abandoned.  Yet the Privy Council reinforced the approach taken in other cases of improvement to land.
50.	I reject Miss Gough’s submission that Bloor are assisted by the principle of free acceptance of services referred to in paragraph 1-019 of Goff & Jones.  Pavillion could not in reality reject the road.  In any event, in my judgement, the question of unasked-for improvement to land is covered in section 6 of Goff & Jones , and to which I have already referred.
51.	In my judgement, Bloor’s claim must fail.
52.	Nevertheless, in case it assists, I consider whether Bloor are entitled to the relief they claim on the basis of incontrovertible benefit to Pavillion.  I have set out earlier the benefits and disadvantages to Pavillion of having the road built by others.  The disadvantages to Pavillion were, in my judgement, significant.  Can it therefore be said that the benefit to Pavillion was “incontrovertible”?  In my judgement the answer to that is no.  
53.	Given my conclusions, it is not necessary to decide whether Bloor should be denied equitable relief on the ground that they did not build the road by mistake.  Had it been necessary to do so, it seems to me that this was a factor which would have weighed heavily against Bloor when considering any entitlement to equitable relief.
Pavillion’s set off
54.	In their defence, Pavillion claim to be entitled to set off against any sum due to Bloor the cost to Pavillion of removing the spoil which had been dumped on Pavillion’s land.  As I have set out earlier, Pavillion do not challenge Bloor’s assertion that Miller Homes had dumped the spoil.  Pavillion have provided insufficient evidence for the court to be able to determine the cost attributable to spoil removal.
55.	Pavillion’s case was that Bloor were liable for the dumping of the spoil, and that this was a factor relevant to the equity.  However, it has not been strongly argued that Bloor could or should have prevented the dumping of spoil or that Bloor is liable in law for this.  As Mr Dilworth acknowledged, this is not the strongest part of Pavillion’s case.  I am not persuaded that Bloor were liable to Pavillion for the consequences of the dumping of the spoil.  It follows that, if they had been liable to Bloor, Pavillion would not have been entitled to any abatement by reference to the cost of removing spoil.  
Quantum
56.	So far as quantum is concerned, the evidence I have heard is incomplete.  I have not had the benefit of expert evidence.  There are obvious dangers in making findings in such circumstances.
57.	Bloor’s case is that there is an industry expectation that a road to adoptable standard will include provision for these services.  And Pavillion would have been bound to have followed the requirements of Swindon Borough Council when building a road to an adoptable standard.  Pavillion’s case is that Bloor built the orange road in excess of adoptable standards.  They say that they could and would have built a road without foul drainage or service ducts underneath and with the minimum necessary to deal with surface drainage.  The principal differences between the parties lie in relation to foul and surface drainage, and the provision of gullies and service ducts.  
58.	I have very little evidence with regard to the specification for a road to adoptable standard and which would have met Swindon’s requirements.  I have heard some evidence from the parties as to whether the orange road which Bloor built was to the minimum required to meet Swindon’s standard or whether the road exceeded that standard.  The evidence was not explored in sufficient depth to enable me to form a view.  
59.	In building the orange road, Bloor/CJL appear simply to have assumed that foul drainage and services for the care home site would be routed via the orange road.  I accept that this was not how Pavillion planned to deal with these matters.  There was no need for the orange road, itself, to have made provision for foul drainage as the foul drainage from the care home was to take a different route, unrelated to the orange road.  Accordingly, the provision of foul drainage was of no benefit to Pavillion.  So far as Pavillion were concerned there was no need for service ducts to have been laid under the orange road.  It may have been helpful to Bromford Housing ultimately to have had use of such ducts.  The question whether Pavillion would have been bound, by reason of Swindon’s requirements, to have laid foul drainage or service ducts under the road remains open.   
60.	I accept that Pavillion would have constructed storm drains and gullies to the minimum standard required.  The question whether Swindon could have required storm drains and gullies of the sort laid by Bloor remains open.  

Frances Kirkham
14 March 2008