Negligence — Statutory and/or common law duties of care — Duty not to create nuisance — Planning and statutory nuisance legislation — Whether cause of action for breach of duties in relation to grant of planning permission and enforcement of statutory nuisance
In August 1988
the first defendant took a tenancy of premises adjoining a restaurant belonging
to the first and second plaintiffs. In November 1988 the planning committee of
the second defendant council granted planning permission to the first defendant
for the change of use of the premises to that of a craft workshop and workshop,
subject to, inter alia, a condition that the industrial processes to be
carried out in the building shall be restricted to those falling within class
B1 of the Town and Country Planning (Use Classes) Order 1987. The first
defendant constructed a paint spraying filter and extractor, which ventilated
the paint spray fumes out through his premises to discharge at low level into
the backyard of the plaintiffs’ property. Complaints were made by the
plaintiffs and others about the paint spray fumes; the first defendant
installed a chimney which was not effective to carry away the fumes. The first
and second plaintiffs’ restaurant suffered substantial reduction in custom and
continuing loss attributable to the fumes, and the third and fourth plaintiffs
suffered various unpleasant symptoms. The plaintiffs issued proceedings against
both defendants. Against the council they alleged that the planning committee
was in breach of a duty in granting the original planning permission. Further
allegations of negligence were made in relation to the grant of planning
permission for the grant of the chimney and in relation to abatement
proceedings under the Environmental Protection Act 1990. The allegations were
based on a breach of statutory and/or a breach of common law duties, and a duty
to prevent the creation of a nuisance. The plaintiffs appealed the decision of
Collins J striking out the claim against the defendants under RSC Ord 18 r
19(1)(a).
The regime of
the Town and Country Planning Acts is a system in respect of which reported
decisions reveal no example of a private right of action for breach of
statutory duty ever having been recognised by the courts. Given the
discretionary nature of the power to grant or refuse planning permission, it seems
clear that the policy of the Act conferring that power is not such as to create
a duty of care at common law, which would make the public authority liable to
pay compensation for foreseeable loss caused by the exercise or non-exercise of
that power. The plaintiffs were right to abandon reliance upon any averment of
breach of
Environmental Protection Act 1990, the position is no different in respect of
the enforcement functions of the local authority in respect of statutory
nuisances from those under the planning legislation. There is no assumption of
duty to found a cause of action. Even if the actions of the council were so
negligent and unreasonable as to amount to irrationality, that does not create
a private right of action in negligence.
to in the judgment
Anns v Merton London Borough Council [1978] AC 728; [1977] 2 WLR
1024; [1977] 2 All ER 492; (1977) 75 LGR 555; [1977] 2 EGLR 94; [1977] EGD 604;
243 EG 523 & 591; [1977] JPL 514, HL
Bourgoin
SA v Ministry of Agriculture, Fisheries and Food
[1986] QB 716; [1985] 3 WLR 1027; [1985] 3 All ER 585
Caparo
Industries plc v Dickman [1990] 2 AC 605;
[1990] 2 WLR 358; [1990] 1 All ER 568, HL
Dorset
Yacht Co Ltd v Home Office [1970] AC 1004;
[1970] 2 WLR 1140; [1970] 2 All ER 294; [1970] 1 Lloyd’s Rep 453, HL
Dunlop v Woollahra Municipal Council [1982] AC 158; [1981] 2 WLR
693; [1981] 1 All ER 1202, PC
Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335; [1995]
2 WLR 173; [1995] 1 All ER 833
Hedley
Byrne & Co Ltd v Heller & Partners Ltd
[1964] AC 465; [1963] 3 WLR 101; [1963] 2 All ER 575; [1963] 1 Lloyd’s Rep 485,
HL
Henderson v Merrett Syndicates Ltd [1995] 2 AC 145; [1994] 3 WLR 761,
HL
Marc Rich
& Co AG v Bishop Rock Marine Co Ltd
[1996] AC 211, HL
Ryeford
Homes v Sevenoaks District Council [1989] 2
EGLR 281; [1990] JPL 36; [1989] 46 BLR 34
Sion v Hampstead Heath Authority [1994] 5 Med LR 170
Stovin v Wise [1996] AC 923; [1996] 3 WLR 388; [1996] 3 All ER 801,
HL(E)
Strable v Dartford Borough Council [1984] JPL 329
Three
Rivers District Council v Bank of England (No 3)
[1996] 3 All ER 558
Tidman v Reading Borough Council [1994] 3 PLR 72
Welton v North Cornwall District Council [1997] 1 WLR 570, CA
X
(Minors) v Bedfordshire County Council
[1995] 2 AC 633
Appeal from
Collins J
This was an
appeal by the plaintiffs from a decision of Collins J, who on January 24 1996
struck out the plaintiffs’ claim against the defendants on an application under
RSC Ord 18 r 19(1)(a).
QC (instructed by Merrick & Co) appeared for the appellants, Chung Tak Lam,
Mary Lam, Patricia Lam and Christopher John Lam.
respondent, Peter Brennan, did not appear and was not represented.
Ashworth QC and Adrian Cooper (instructed by Veitch Penny, of Exeter)
represented the second respondents, Torbay Borough Council.
following judgment was delivered.
POTTER LJ: This is the judgment of the court. This is an appeal from the
order of Collins J, made on January 24 1996, striking out the plaintiff
appellants’ claim against the defendant respondents pursuant to the
respondents’ application under RSC Ord 18 r 19(1)(a) and the inherent
jurisdiction of the court. Leave was granted by the Court of Appeal (Hobhouse and
Morritt LJJ) on July 4 1996.
Factual
background
The following
is a summary of the material facts as set out in the reamended statement of
claim which was before the judge, subject to certain additions of detail of
which we also take account for reasons which appear below. The facts pleaded
are assumed to be established for the purposes of the appeal.
The four
appellants are all members of the same family. At all material times, the
father and mother owned a restaurant called the Peking Garden and the attached
dwellinghouse at 30–32 Palace Avenue, Paignton. They claim damage to their
property and consequential loss in relation to their restaurant business
amounting to over £500,000. Their two children, who lived with them at that
address, claim damages for personal injury. That loss and those injuries are
alleged to have arisen directly from nuisances committed by the first
defendant, who owned premises close by, where he carried on a business of
making and finishing toys. That activity involved spraying the toys produced
with chemicals and paint sprays. The plaintiffs allege that the fumes thereby
caused not only prevented people coming to eat in the restaurant, but also
caused injury to the child plaintiffs, causing them to suffer from asthma and
related conditions. The claim against the respondents alleges negligence in
granting the planning permission, which led to the processes being carried out
on the first defendant’s premises, and in failing to take later enforcement
proceedings under the Planning Acts or Environmental Protection Acts, either at
all or sufficiently promptly to ensure that the plaintiffs did not suffer
damage such as that caused. Because the first defendant is not a man of
substance and his insurers repudiated liability under his insurance
arrangements, the appellants have no chance of recovering damages against him;
their chances of recovery effectively rest upon establishing the claims made
against the respondents.
When hearing
the application below, Collins J considered the claims against the respondents
on the basis of the facts pleaded in the reamended statement of claim. If
successful in their appeal, the appellants will seek further to amend the
statement of claim to include additional matters set out in a document called
‘Appendix 1: Further Amendments sought to be made to the Re-Amended Statement
of Claim’, consisting of some 37 paragraphs. The parties are agreed that, in
considering the merits of the appeal, we should proceed as if those additional
matters pleaded were already before the court, in so far as they are relied on
to support the allegations of negligence, nuisance and breach of duty already
made (paras 1 to 33 of the appendix): see Sion v Hampstead Heath
Authority [1994] 5 Med LR 170 per Staughton LJ, at p172. However, in
so far as there also appears pleaded in the appendix a wholly new plea (paras
34–35) that, in acting as they did, the respondents’ officers were guilty of
misfeasance in
and that any amendment including it would be objectionable for reasons to which
we shall turn later.
The
respondents were the local planning authority in respect of the first
defendant’s small factory and acted at various times through their planning
officer, Mr Malton, their environmental health officer, Mr Collins, and the
town clerk, Mr Hudson, each assisted by the staff of his department.
The old part
of Paignton in which the appellants’ and the first defendant’s premises were
situated was a conservation area in respect of which the local plan prescribed
that its character should be protected and enhanced and that, as a place to
live, work or visit, it was important that conditions were safe and attractive.
It also stated its objectives as, inter alia, to ensure that the design
of new development was appropriate within the context of its surroundings and
to promote environmental improvements in the conservation area.
Until August
1988 the first defendant had a workshop in Torquay. He was engaged in producing
wood objects, which involved finishing and spraying with cellulose paint. He
wished to move his premises and took a tenancy of premises extending across the
rear of 36 Palace Avenue (unit 1), and 34 Palace Avenue (unit 2), which was
next door to the plaintiffs’ restaurant at 32 Palace Avenue beyond it. On
August 17 1988 he applied to the respondents (by application no 88.1887) for
planning permission in respect of the premises at the ‘Rear of 36 Palace
Avenue’ for change of user from the existing user of ‘warehousing’ and/or
‘storage’ to that of a ‘craft workshop and workshop’. (It is not clear whether,
at the time of his application, unit 1 and unit 2 were or were not already
occupied for a common purpose and/or had internal access one to the other. Nor is
it clear whether the first defendant intended or understood the description
‘Rear of 36, Palace Avenue’ to apply to and/or cover activities in both unit 1
and unit 2.) A description of his proposed activities was given, but he omitted
to mention anything about paint spraying or the disposal of effluent. On
November 14 1988 the respondents’ planning committee, on the recommendation of
the planning officer, granted permission for change of user of the premises at
the rear of no 36 subject, inter alia, to the condition that:
The
industrial processes carried out in the building shall be restricted to those
falling within B1 of the Town and Country Planning (Use Classes) Order 1987.
Such uses
include:
(b) for research and development of products or
processes; or
(c) for any industrial use being a use which can
be carried out in any residential area without detriment to the amenity of that
area by reason of noise, vibration, smell, fumes, smoke, soot, ash, dust or
grit.
(Again, it is
not clear whether the permission granted was intended to cover only unit 1, or
unit 1 and unit 2 together.)
The first
defendant started work in unit 1 at the rear of no 34 and constructed a paint
spraying filter and extractor, which ventilated the paint spray fumes out
through his premises at the rear of no 34 to discharge at low level into the
backyard of the appellants. Following complaints starting in September 1989,
from the appellants and a number of other local people who were adversely
affected by fumes (including a specific complaint by the second plaintiff that
the effects included nausea, dizziness and memory loss), the respondents’
environmental health officer wrote on September 21 1989 to the first defendant
recommending that his spraying booth be moved to first-floor level so that the
fumes could be extracted above roof-ridge level, and that the planning
department be contacted to see if planning permission was required. The urgent
attention of the first defendant was demanded. On September 28 1989 the
environmental health officer asked the planning department to check the
planning permission in respect of the first defendant’s premises. The first
defendant accordingly applied on October 9 1989 for planning permission for
‘re-location of extractor system’ and provided a plan of a ‘chimney’ on the
roof of the premises at the rear of no 34 for escape of the fumes. Meanwhile,
the appellants’ complaints continued. Permission was granted for the chimney
work by a delegated decision of the planning officer on November 24 1989, the chimney
being installed in January 1990.
On February 7
1990 the respondents wrote to the appellants stating they had no reason to
believe the first defendant’s business would cause any personal injury to the
appellants.
Unfortunately,
the work was not effective to reduce or carry away the fumes. By May 1990,
there had been at least 60 complaints from persons nearby suffering adverse
effects from the fumes and, on October 24 1990, a prohibition notice (‘the
first notice’) was served by the respondents on the first defendant, pursuant
to section 1 of the Public Health (Recurring Nuisances) Act 1969, in order to
secure compliance.
Shortly
thereafter the respondents’ environmental health department wrote to the first
appellant saying it was now satisfied a nuisance existed and that a notice had
accordingly been served. However, the notice was not effective to secure
abatement by the first defendant. In early 1991 the appellants issued a writ
(action no 1991 L no 95) against the first defendant claiming an injunction and
damages. The first defendant served a defence in March 1991 and the proceedings
were not carried further. (It is not clear why. We have been told it was
because the first defendant apparently lacked substance. However, that would
not have prevented the appellants from obtaining an injunction against him as
soon as they issued their proceedings, if the situation had warranted it.)
In May 1991 an
internal memorandum from the town clerk to the planning department noted that
it was important to determine whether both units behind nos 34 and 36 had been
included in the first defendant’s original planning application 88.1887.
On December 6
1991 the respondents served an abatement notice (‘the
1990. No further steps were taken by the respondents. (The appellants had in
fact ceased to live in the area in or about November 1990 and the first
defendant left in December 1992.)
The third and
fourth appellants suffered various unpleasant symptoms, stated to be caused by
exposure to the fumes, and the first and second appellants’ restaurant suffered
substantial reduction in its custom and continuing loss.
Before Collins
J, the allegations in respect of liability fell into three categories.
First, it was
said that the respondents’ planning committee were in breach of duty to the
appellants in granting the original planning permission dated November 14 1988.
It was contended that the appellants, as neighbours of the first defendant,
were entitled to rely on the committee to ensure that they did not consent to
any activity which, if carried out, would emit fumes into the appellants’
premises. In particular, it was said the committee acted ultra vires in
failing to take into account the material circumstance that cellulose paint
spraying would be carried out emitting fumes into the appellants’ yard and
generally into the air of the conservation area. It was said that, no plan or
sufficient plan having been submitted in relation to the process being carried
out, the committee failed to inquire sufficiently about this process or
whether, if there were any paint spraying, it would require permission under
the Alkali Regulations in class B3 (Special Industrial Group A) and/or the
Cellulose Spraying Regulations in class B6 (Special Industrial Group D). It is
said that, had the committee done so, they would not have granted planning permission.
It was further
contended that, through the planning officer and/or his assistants, the
respondents owed a common law duty of care to the plaintiffs, independent of
any statutory breach of duty, to investigate the circumstances of the first
defendant’s application properly and to advise the planning committee
accordingly on the lines already mentioned. Various specific breaches of the
duty of care were alleged. In particular, it was said that the planning officer
should have been aware of local complaints about the processes carried out by
the first defendant at his former factory, he or his staff having visited that
factory on several occasions. It was also said that the planning officer, or
his staff, negligently failed to inquire and establish the details of the
processes, failed to ascertain there would be effluent from paint fumes and
failed to ascertain the cellulose and/or alkali content of the paint spraying
process and to recommend against the grant of permission.
Second, it was
contended that, at the time of the first defendant’s application for planning
permission for the chimney, the officers were negligent in failing to recommend
to the committee that permission for the chimney be refused and the original
planning consent withdrawn, so that the paint spraying could be discontinued or
relocated to an appropriate industrial area, the planning officer taking it
upon himself to make the decision to permit the construction of the chimney
without proper investigation or consideration, and without reference back to
the
course of the appeal that there was in fact no power in the planning committee
to ‘withdraw’ the original planning consent and that, in the ordinary way, the
planning officer would have had delegated power to make such a decision.)
Third, in
relation to the first order, it was said that such an order should have been
served at least by October 1989 (ie one year before it was in fact served) and,
in relation to both the first and second order, that each should have been made
the subject of enforcement proceedings. It was said that, in failing to take
such proceedings, the planning officer and his assistants and/or the
environmental health officer and his assistants were in breach of statutory
and/or common law duty by permitting the nuisance of which they were aware to
continue.
Judgment
of Collins J
So far as the
first two heads of claim were concerned, ie that the planning officer or his
deputies were negligent in making the necessary investigations leading up to
the permission being granted, the judge held that, on the basis of the
principles enunciated by Lord Browne-Wilkinson in X (Minors) v Bedfordshire
County Council [1995] 2 AC 633 (‘X‘), he was satisfied that: (1) no
private law right of action for breach of statutory duty existed in respect of
the statutory duties imposed on the respondents under the relevant provisions
of the statutory regimes governing the actions of the respondents’ officers;
and (2) no parallel or additional claim for breach of the common law duty of
care lay in the circumstances of the case. When considering the latter aspect
of the claim on the basis of the law as enunciated in Caparo Industries plc
v Dickman [1990] 2 AC 605, as applied in X, the judge assumed
that foreseeability of damage and sufficient proximity in the relationship of
the appellants and the respondents could be established, but he held that it
was plain that the appellants would fail in establishing that it was just and
reasonable to impose a duty of care. It had been argued before him by counsel
for the appellants that, while a mere error in the exercise of the authorities’
powers and duties would not give rise to a cause of action, a breach of a duty
of care would be demonstrable if the authority had acted irrationally as, for a
number of reasons, he submitted was the case here. On this aspect the judge
stated:
It seems to
me that the principle applies equally whatever the factual basis giving rise to
the supposed duty of care. It either exists or it does not. It cannot exist, in
my judgment, on one given set of facts if it is a question of degree, as it
would be. It seems to me that the fact that the grant of planning permission
does not give permission to create a nuisance or to do damage to a particular
adjoining occupier carries with it that it is not and cannot be implicit in the
grant of permission that there is any overriding of third party private rights.
Once one accepts that, it seems to me that it is impossible to say that there
is a duty of care owed to such a third person, because ex hypothesi
there can be in the grant of permission no breach of that person’s rights. That
seems to me to be another reason why there can be no duty of care owed to a
third party under the Planning Acts … The alternative
proceedings for an injunction against the adjoining occupiers, which is
precisely what they did, although, for some reason about which I have had no
explanation, they did not proceed to seek an interlocutory injunction so as to
stop the nuisance as soon as possible. Furthermore, they had the remedy of
involving themselves in and objecting to the application for planning permission
assuming that they knew about it, as they should have done as adjoining
occupiers; and if the planning permission was granted they, at least in theory,
had the right to take judicial review proceedings if they could establish that
the decision to grant planning permission was irrational. I accept that would
be a right of limited value because such proceedings would have to brought
within a very short time scale, normally three months at most, and of course by
then they would not necessarily know that the person to whom planning
permission had been granted was going to operate his premises in such a way as
to cause a nuisance. But their primary remedy, and the obvious remedy, is the
private law remedy for damages and/or an injunction against the neighbouring
occupier. Accordingly I am quite satisfied that it would not be just or
reasonable to say that there was a duty of care owed by the authority or indeed
by any of its servants or agents or employees to the plaintiffs.
So far as the
third head of claim was concerned, ie that based on the alleged failure to take
enforcement action, the judge held that the principles applicable to pollution
and planning were essentially similar, enforcement also being a matter which
the local authority has to consider in the public interest. By way of analogy
with the position of the Crown Prosecution Service (see Elguzouli-Daf v Commissioner
of Police of the Metropolis [1995] QB 335), the judge held that the
decision of a planning and enforcement authority as to taking enforcement
proceedings in the public interest or in the interests of the inhabitants of a
particular area is one which should not be influenced by considerations as to
whether there might be a claim for negligence, if action was or was not taken
in a particular case. He considered that the argument applied equally to the
decisions whether to issue an enforcement notice in the first place and,
whether, having issued it, to take steps to ensure compliance with its terms.
Respondents’
planning functions
The respondents’
planning functions arose under the Town and Country Planning Act 1971 and (as
from August 24 1990) the Town and Country Planning Act 1990. References
hereafter are to the Act of 1971 unless otherwise stated. Section 22(1) defines
‘development’ as:
the carrying
out of building, engineering, mining or other operations in, on, over or under
land, or the making of any material change in the use of any buildings or other
land.
By section
23(1):
… Planning
permission is required for the carrying out of any development of land.
By section 29:
(1) … where
an application is made to a local planning authority for planning permission,
that authority … shall have regard to the provisions of the development plan,
so far as material … and to any other material considerations, and —
(a) … may grant planning permission, either
unconditionally or subject to such conditions as they think fit; or
(b) may refuse planning permission.
So far as
enforcement is concerned, section 87 provides:
(1) Where it
appears to the local planning authority that there has been a breach of
planning control … the authority, if they consider it expedient to do so having
regard to the provisions of the development plan and to any other material
considerations, may serve a notice … requiring the breach to be remedied
Section 90
empowers a local authority which has served an enforcement notice to stop
further specified operations on land which have been alleged in the enforcement
notice to constitute a breach of planning control.
Respondents’
environmental health functions
The
respondents’ environmental health functions arise under a number of statutes.
So far as this case is concerned they arise primarily under Part III of the
Public Health Act 1936 and (from January 1 1991) Part III of the Environmental
Protection Act 1990.
By section 91
of the 1936 Act it is provided that:
It shall be
the duty of every local authority to cause their district to be inspected from
time to time for the detection of matters requiring to be dealt with under the
provisions of this Part of this Act as being statutory nuisances within the
meaning of the next succeeding section.
Section 92
provides:
(1) … the
following matters … are in this Part of this Act referred to as ‘statutory
nuisances’, that is to say —
…
(d) any dust or effluvia caused by any trade,
business, manufacture or process and being prejudicial to the health of, or a
nuisance to, the inhabitants of the neighbourhood;
Section 93
provides:
Where a local
authority are satisfied of the existence of a statutory nuisance, they shall
serve a notice (hereafter in this Act referred to as ‘an abatement notice’) on
the person by whose act, default or sufferance the nuisance arises or continues
… requiring him to abate the nuisance and to execute such works and take such
steps as may be necessary for that purpose.
The Public
Health (Recurring Nuisances) Act 1969, section 1 provides:
(1) Where a
local authority are satisfied that a statutory nuisance has occurred on any
premises and is likely to recur on the same premises, they may serve a notice
(in this Act referred to as a prohibition notice) —
(a) …
(b) In any other case, on the person by whose
act, default or sufferance the nuisance arose or, if that person cannot be
found, on the owner or occupier of the premises,
prohibiting a
recurrence of the nuisance and requiring him to take such steps as may be
necessary to prevent a recurrence.
(2) A local
authority may if they think fit specify in a prohibition notice any works
necessary to prevent a recurrence of the nuisance to which the notice relates
and require the execution of those works.
By section 2
of the 1969 Act, where a local authority has served a prohibition notice and
the nuisance to which it relates occurs or the person on whom the notice was
served fails to comply with any requirements of the notice, the authority may
cause a complaint to be made to the magistrates’ court, on the hearing of which
complaint the court shall have the like power to make the nuisance order as
under section 94 of the 1936 Act in relation to a nuisance in respect of which
an abatement notice has been served.
The
Environmental Protection Act 1990 provides by section 79 as follows:
(1) Subject
to subsection (2)(6) below, the following matters constitute ‘statutory
nuisances’ for the purposes of this Part, that is to say —
…
(c) fumes or gases emitted from premises so as
to be prejudicial to health or a nuisance; …
and it shall
be the duty of every local authority to cause its area to be inspected from
time to time to detect any statutory nuisances which ought to be dealt with
under section 80 below and, where a complaint of a statutory nuisance is made
to it by a person living within its area, to take such steps as are reasonably
practicable to investigate the complaint.
Section 80
provides:
(1) Where a
local authority is satisfied that a statutory nuisance exists, or is likely to
occur or recur, in the area of the authority, the local authority shall serve a
notice (‘an abatement notice’) imposing all or any of the following
requirements —
(a) requiring the abatement of the nuisance or
prohibiting or restricting its occurrence or reoccurrence;
(b) requiring the execution of such works, and
the taking of such other steps, as may be necessary for any of those purposes,
…
(4) If a
person on whom an abatement notice is served, without reasonable excuse,
contravenes or fails to comply with any requirement or prohibition imposed by
the notice, he shall be guilty of an offence.
Section 81
provides:
(3) Where an
abatement notice has not been complied with the local authority may, whether or
not they take proceedings for an offence under section 80(4) above, abate the
nuisance and do whatever may be necessary in the execution of the notice.
(4) Any
expenses reasonably incurred by a local authority in abating … a statutory
nuisance under subsection (3) above may be recovered by them from the person by
whose act or default the nuisance was caused …
(5) If a
local authority is of opinion that proceedings for an offence under section
80(4) above would afford an inadequate remedy in the case of any statutory
nuisance, they may … take proceedings in the High Court for the purpose of
securing the abatement, prohibition or restriction of the nuisance …
Section 82
provides:
(1) A
magistrates’ court may act under this section on a complaint made by any person
on the ground that he is aggrieved by the existence of a statutory nuisance.
(2) If the
magistrates’ court is satisfied that the alleged nuisance exists, or that
although abated it is likely to recur on the same premises, the court shall
make an order for either or both of the following purposes —
(a) requiring the defendant to abate the
nuisance …
(b) prohibiting a recurrence of the nuisance …
Relevant
law
The
circumstances in which an authority performing statutory functions may be
liable in damages for breach of statutory duty or may be held to be in breach
of a parallel or supplementary common law duty of care have been illumined
recently in a trio of cases, namely X, already referred to, Stovin
v Wise [1996] AC 923 and Marc Rich & Co AG v Bishop Rock
Marine Co Ltd [1996] AC 211. In X, Lord Browne-Wilkinson made clear,
at p732D that, so far as the careless performance of a statutory duty is
concerned:
does not in
itself give rise to any cause of action in the absence of either a statutory
right of action … or a common law duty of care …
Equally, at
p733B:
the careless
exercise of a statutory power or duty cannot provide a defence to a claim based
on a freestanding common law cause of action, whether in trespass, nuisance or
breach of a common law duty of care.
The correct
view is that:
in order to
found a cause of action flowing from the careless exercise of statutory powers
or duties, a plaintiff has to show that the circumstances are such as to raise
a duty of care at common law. The mere assertion of the careless exercise of a
statutory power or duty is not sufficient.
In Stovin‘s
case, Lord Hoffman stated, at pp952E to 953A:
Whether a
statutory duty gives rise to a private cause of action is a question of
construction: see R v Deputy Governor of Parkhurst Prison, Ex parte
Hague [1992] 1 AC 58. It requires an examination of the policy of the
statute to decide whether it was intended to confer a right to compensation for
breach. Whether it can be relied upon to support the existence of a common law
duty of care is not exactly a question of construction, because the cause of
action does not arise out of the statute itself. But the policy of the statute
is nevertheless a crucial factor in the decision. As Lord Browne-Wilkinson said
in [X] in relation to the duty of care owed by a public authority
performing statutory functions:
‘the question whether there is such a
common law duty and if so its ambit, must be profoundly influenced by the
statutory framework within which the acts complained of were done.’
The same is
true of omission to perform a statutory duty. If such a duty does not give rise
to a private right to sue for breach, it would be unusual if it nevertheless
gave rise to duty of care at common law which made the public authority liable
to pay compensation for foreseeable loss caused by the duty not being
performed. It will often be foreseeable that loss will result if, for example,
a benefit or service is not provided. If the policy of the Act is not to create
a statutory liability to pay compensation, the same policy should ordinarily
exclude the existence of a common law duty of care.
In the case
of a mere statutory power, there is the further point that the legislature has
chosen to confer a discretion rather than create a duty … I … do not say that a
statutory ‘may’ can never give rise to a common law duty of care … [but] …
In summary, …
I think the minimum preconditions for basing a duty of care upon the existence
of a statutory power, if it can be done at all, are, first, that it would in
the circumstances have been irrational not to have exercised the power, so that
there was in effect a public law duty to act, and secondly, that there are
exceptional grounds for holding that the policy of the statute requires
compensation to be paid to persons who suffer loss because the power was not
exercised.
It is against
the background of those observations that, the requirements of (1)
foreseeability, (2) proximity and (3) ‘just and reasonable’ propounded in Caparo
Industries plc v Dickman [1990] 2 AC 605 at pp617 and 618 fall to be
considered in relation to any individual set of circumstances in which a duty
is alleged: see X at p739A. They fall to be considered and applied not
only where the damage complained of is economic loss but where it takes the
form of personal injury or damage to property: see X at p749D to F and per
Lord Steyn in Marc Rich at pp235E, 236A.
The duty of
care in relation to the planning functions of a local authority has received
consideration in a number of cases. In Dunlop v Woollhara Municipal
Council [1981] 1 All ER 1202, Lord Diplock, at p1209C to E, while doubting
that it was so, left open the question whether an individual injuriously
affected by either the refusal of planning permission on the part of a planning
authority or by the grant of planning permission
planning authority. However, in Strable v Dartford Borough Council [1984]
JPL 329 this court held that no such action lay and that the remedy available
to an individual in such a case was to object on appeal to the Secretary of
State and, if still dissatisfied with the planning results of that appeal, to
seek judicial review of the Secretary of State’s decision. Stephenson LJ made
clear, at p331, that the question is always whether, looking at the whole
statute and at all the circumstances, including the history of the legislation,
the relevant Act was passed primarily for the benefit of the individual or for
the public in general. In the case of the planning function of a local
authority he held that the latter was the case: see also Ryeford Homes v
Sevenoaks District Council [1989] 46 BLR 34 at pp43, 44.
The planning
functions of a local authority are exercised in the public interest. As Salmon
J observed in Buxton v Minister of Housing and Local Government
[1961] 1 QB 278, at p283:
The scheme of
the Town and Country Planning Legislation, in my judgment, is to restrict
development for the benefit of the public at large and not to confer new rights
on any individual members of the public, whether they live close to or far from
the proposed development.
The material
considerations which are taken into account by the local authority in
exercising their planning functions are considerations of a planning nature. In
broad terms:
any
consideration which relates to the use and development of land is capable of
being a planning consideration: per Cooke J in Stringer v Ministry
of Health [1970] 1 WLR 1281 at p1294G.
Although an
individual has no private rights of action directly conferred by the Town and
Country Planning Acts, he yet may be a person whose interests are properly to
be considered at the stage when the question whether or not to grant planning
permission is being dealt with: see per Cooke J, ibid at pp1294G,
1295H; see also Tidman v Reading Borough Council [1994] 3 PLR 72,
at p92G to H.
Finally,
planning permission is not a consent or licence under any other legislation or
for any other purpose. Although safety to person and property may be a material
planning consideration, it will frequently involve another statutory regime:
for example, the regime contained in the Building Act 1984 and Building
Regulations made under it, in respect of safety of new buildings; the regime
contained in the Factories Act 1961 and the Health and Safety at Work etc. Act
1974, in relation to the safety of personnel; and the regime contained in the
Environmental Protection Act 1990 and the Environment Act 1995, in relation to
the prevention of pollution. Above all, and of particular importance in this
case, the granting of a planning permission is not a licence or consent to the
commission of a nuisance in the course of any activity upon premises coming
within the
there was imposed a limitation upon the permitted use in relation to noise,
vibration, smell, fumes, etc or whether no such limitation was imposed.
Equally, so
far as the taking of enforcement action under the 1971 Act is concerned, the
considerations governing the exercise of the power of enforcement given to the
local authority by section 87(1) are whether the authority consider it
expedient to take enforcement measures having regard to the provisions of the
development plan and to any other material considerations. In this respect it
seems to us clear that the local authority are in the position of a regulatory
authority ‘charged by Parliament with the task of protecting society from the
wrongdoings of others’ in the sense adumbrated by Lord Browne-Wilkinson in X,
at p751F.
Appellants’
contentions
Upon this
appeal the width of the appellants’ submissions has in part been reduced and in
part expanded. The heads of their submissions have been as follows.
First, Mr
Stewart has not sought to assert that any of the statutes relied on give rise
to a private action in damages for breach of statutory duty simpliciter.
However, he continues to assert a cause of action for breach of common law duty
of care on a somewhat different basis from that argued before Collins J.
Second, in the
course of arguing the appeal, Mr Stewart effectively abandoned his argument
that the respondents were in breach of duty in granting planning permission to
the first defendant without proper inquiry. However, he has focused on the
respondents’ enforcement function and argues that, upon receiving complaints
from the appellants, among others, the respondents by their actions assumed
responsibility for dealing with the complaints and remedying the nuisance, and
that the appellants relied upon the respondents to do so: cf Henderson
v Merrett Syndicates Ltd [1995] 2 AC 145. In that respect Mr Stewart
argues that, having done so, the respondents dealt negligently with the
appellants’ complaints in that, by suggesting and permitting the building of
the chimney rather than simply going straight to the initiation of enforcement
procedures, they condoned and exacerbated the unlawful use of the premises, by
which noxious fumes were being produced, rather than preventing such use.
Third, Mr
Stewart argues that, in serving both the first and second notices, the respondents
further assumed responsibility for dealing with the first defendant’s
activities, but they did so negligently and without effect in that they failed
to comply with their resulting statutory obligation to enforce such notices.
Fourth, Mr
Stewart submits that the breach of duty relied on is qualitatively not one of
simple carelessness in the course of the respondents’ exercise of their
statutory functions but that it consisted of acts or omissions ‘well outside
the ambit of the respondents’ discretion’, as he puts it. So far as planning
matters are concerned, he argues that the
to be out with any proper exercise of discretion, and that the planning
investigations made and/or controls imposed were so inadequate or non-existent
as to amount to irrationality on the part of the respondents. In this respect
it is said the allegations do not relate to ‘policy matters’ but to ‘operating
decisions’.
Fifth, Mr
Stewart relied on the following special features of the case in support of his
assertion that the breach of duty was outside the ambit of the respondents’
discretion.
(a) He takes
the point that there was never any planning permission granted for workshop
activity for the premises at the rear of 34 Palace Avenue, only for no 36.
(b) He says
that, because of the existence of the conservation area and the provisions of
the different classes of use under the Town and Country Planning (Use Classes)
Order 1987, an application to exhaust the fumes of cellulose paint spraying
and/or other chemicals into the immediate atmosphere should and could never
properly have been granted. The use by the first defendant of the unit(s) did
not and could not have come under Use Class B1, not being a use ‘which can be
carried out in a residential area without detriment to the amenity of the area
by reason of fumes …’. Mr Stewart says that the right information about the
first defendant’s processes was not elicited or, if elicited, was not put
before the planning committee in 1988. Accordingly, it was not a proper
exercise of delegated powers for the planning officer to give permission for
the fumes to be extracted via a stack in November 1989.
(c) He places
reliance on the letter the respondents’ environmental health officer wrote to
the planning department on September 28 1989 asking them to ‘ensure that these
premises have planning permission and that if any action can be taken, that it
is taken as a matter of urgency’. Despite this letter, the planning department
still did nothing by way of investigation or action.
(d) He says
that it was not a proper exercise of powers to take no earlier steps to serve
an enforcement notice pursuant to sections 87 and 90 of the Town and Country
Planning Act 1971.
(e) He says it
was not a proper exercise of the powers to do nothing to enforce the first and
second notices.
Finally, he
submits that, as pleaded in paras 34 and 35 of the schedule, in acting as we
have described, the respondents, their servants or agents acted in abuse of
their powers as public officers in that they knew they had no power to allow
planning permission (or were reckless as to whether they had such power or not)
and they knew such grant would cause injury to the appellants (or were reckless
as to whether it would do so). He also says that the respondents knew that they
had a positive statutory duty to serve an abatement notice and to bring the
first defendant before the justices, but they failed to take either course,
knowing that injury would be caused to the appellants as a result.
Discussion
We shall deal
with each of the appellants’ contentions in order, save that we shall first
turn to the pleading of misfeasance in public office. We feel bound to say
that, in the circumstances of this case, we consider that it is a plea which
was rightly not made or relied on before the judge below and that its
subsequent proposed addition by way of amendment smacks of an ill-considered
attempt to create a long-stop, should one be needed, by which to resist an
unfavourable outcome to this appeal. We say that because, having framed in para
35 of the schedule the averments necessary to be proved for the purposes of
what is essentially a tort of malice (albeit malice in the extended sense
contemplated in Bourgoin SA v Ministry of Agriculture, Fisheries and
Food [1986] QB 716 and further expanded by Clarke J in Three Rivers
District Council v Bank of England (No 3) [1996] 3 All ER 558), the
appellants, in para 36, plead particulars in support which are no more than a
repetition of acts earlier pleaded which we have already summarised under the
heading ‘Factual background’ above. None of those matters in our view, per
se or by inference, gives rise to any implication of malice sufficient to
establish a deliberate and improper abuse of power.
Whether or not
that be so, we accept the submission of Mr Piers Ashworth QC for the
respondents that (as Mr Stewart admits) what is set out in paras 34 and 35 of
the schedule is a new cause of action. As such, as Mr Ashworth further submits,
it (a) constitutes a departure from the general indorsement on the writ, (b)
lacks any proper particulars of the pleas of knowledge relied on, and (c) is in
any event statute-barred in respect of various of the matters relied on.
Accordingly, we consider that the proposed pleading in paras 34 and 35 should
be ignored for the purposes of this appeal.
Returning in
order to Mr Stewart’s preceding heads of submission, first, we consider that Mr
Stewart was indeed right to abandon reliance upon any averment of breach of
statutory duty as giving rise to a cause of action in the appellants. We also
consider he was right to abandon the contention that any breach of common law
duty could be demonstrated in relation to the original grant of planning permission.
In our view, it is quite plain that the regime of the Town and Country Planning
Acts is, in the words of Lord Browne-Wilkinson in X, at p731H:
a regulatory
system … for the benefit of the public at large … [involving] … general
administrative functions imposed on public bodies and involving the exercise of
administrative discretions.
Such a system
is one in respect of which reported decisions reveal no example of a private
right of action for breach of statutory duty ever having been recognised by the
court.
Again, we
consider Mr Stewart was right not to press his argument that the respondents
were in breach of a parallel common law duty in granting planning permission to
the first defendant without proper inquiry. For the broad purposes of a
description of the policy and functions of the planning
Country Planning Act 1990 and subordinate instruments made thereunder, we are
content to adopt the description set out at Halsbury’s Laws of England
(4th ed reissue) vol 46 at p16 para 1:
The … system
is designed to regulate the development and use of land in the public interest;
and it is an important instrument for protecting and enhancing the environment
in town and country, preserving the built and natural heritage, conserving the
rural landscape and maintaining Green Belts.
[It] … has a
positive role to play in guiding the appropriate development to the right
place, as well as preventing development which is not acceptable. It must make
adequate provision for development and at the same time take account of the
need to protect the natural and built environment. It must also take account of
international obligations. In this way, properly used, the planning system can
secure economy efficiency and amenity in the use of land.
Against that
background, and given the discretionary nature of the power conferred to grant
or refuse planning permission under section 29 of the 1971 Act, it seems to us
clear that the policy of the Act conferring that power is not such as to create
a duty of care at common law which would make the public authority liable to
pay compensation for foreseeable loss caused by the exercise or non-exercise of
that power. As Collins J put it:
The local
authority’s duty under the Planning Acts is to control and regulate development
in the interests of the inhabitants of the area. It is of course inevitable,
particularly where there are major developments, that some people are going to
be adversely affected … There may be more noise as a result. There may be other
adverse effects. There may even be nuisances created in some situations. Of
course the local authority has to consider the effect on the environment and
the adverse effect, if any upon neighbouring occupiers. Those are all proper
planning considerations.
[However] …
It seems to me that it would be wholly detrimental to the proper process of
considering planning applications if the local authority, in addition had to
have regard to the private law interests of any persons who might be affected
by the grant of permission, and to ask itself in each case whether it had
properly had regard to the individual rights of those concerned. If it were
potentially liable to actions in negligence in those circumstances, it seems to
me that the carrying out of its important functions in the public interest
would be likely to be adversely affected.
Turning to Mr
Stewart’s second argument, we cannot think that the position is any different
in respect of the enforcement functions of the local authority in respect of
statutory nuisances.
The 1990 Act
is a wide ranging statute dealing in Part I with ‘Integrated Pollution Control
and Air Pollution Control’ by local authorities and in Part II with ‘Waste on
Land’ and in particular issues relating to waste management licences, the
collection, disposal or
actions of waste regulation authorities. In Part III, headed ‘Statutory
Nuisances and Clear Air’, sections 79 and 80 deal respectively with ‘Statutory
nuisances and inspections therefor’ and ‘Summary proceedings for statutory
nuisances’. Again, these are plainly provisions for the benefit of the public
at large living within the area of the local authority and, albeit, under
section 80, service of an abatement notice is obligatory if the local authority
is satisfied that a statutory nuisance exists, it is not mandatory for the
local authority to take proceedings for an offence under section 80(4). Indeed,
should they not see fit to do so, section 82(1) anticipates the right of any
person ‘aggrieved by the existence of a statutory nuisance’ to make complaint
to a magistrates’ court himself. Quite apart from that, the procedures in
sections 79 and 80 exist in parallel with, and without any derogation from, the
right of such a person to take private proceedings for nuisance against an
adjoining landowner, whether for an injunction or damages. In those
circumstances it seems to us plain that there is neither reason nor necessity
in relation to such a landowner aggrieved by the failure of a local authority
to take action in respect of a nuisance, to create a right of action in damages
based on such failure.
Nor does it
seem to us that the appellants’ position can be improved by some alternative
formulation of his cause of action on the basis of ‘assumption of
responsibility’. Where an allegation of ‘assumption of responsibility’ is made
against a person or body carrying out a statutory function, there must be
something more than the performance (negligent or otherwise) of the statutory
function to establish such assumption of responsibility: see, for instance, the
case of Welton v North Cornwall District Council [1997] 1 WLR
570, in which the plaintiffs were held to have established an assumption of
responsibility on the part of a servant of the defendant authority in respect
of statements made to the plaintiffs as to the alterations necessary to secure
compliance with food regulations. The court held that, in making those statements
he had acted far outside the ambit of his statutory powers and duties which
were said to provide no more than ‘the backcloth and reason’ for the
relationship created which gave rise to a duty of care. The analysis of the
position in the judgments of the members of the court in that case can give no
comfort to Mr Stewart in this context.
It is clear to
us that the facts proposed to be pleaded fall well short of establishing any
such assumption of responsibility. All relate to matters which arose in the
course and scope of the respondents’ planning and enforcement functions: cf
the Welton case. Here there is no contract between the appellants and
the respondents, nor any situation equivalent to it: cf Henderson
v Merrett. Nor is any communication from the respondents said in itself
to amount to such assumption of responsibility: cf Hedley Byrne &
Co Ltd v Heller & Partners Ltd [1964] AC 465. The matters relied
upon are essentially no more than the fact that the respondents, on the
complaint and at the prompting of the appellants or their solicitors, set about
seeking to remedy the situation but took inadequate steps to do so. Nor is any
special reliance upon such putative assumption pleaded.
steps to enjoin and claim damages from the first defendant, but they neglected
to pursue those proceedings. It is not suggested that they did so on the basis
of any implied undertaking or assumption of responsibility on the part of the respondents.
While it appears to be the case that, in issuing the first and second notices,
the respondents were indeed prompted by the complaints of the appellants, such
prompting was no more than the occasion for the exercise by the respondents of
their power or duty to take measures for enforcement in the interests of the
community as a whole; it does not seem to us that such action can or should be
construed as any assumption of responsibility vis-à-vis the plaintiffs,
so as to give rise to a private right of action. Accordingly, there seems to us
nothing in Mr Stewart’s second and third heads of submission.
Nor do we
consider that his fourth head has any substance. Even assuming that the actions
of the respondents were so negligent and unreasonable as to amount to
irrationality, that does not in itself suffice to create a private right of
action in negligence, as opposed to founding the basis of some public law
challenge to the exercise of the respondents’ powers. The cause of action, if
it exists, remains one for breach of duty in the tort of negligence. To allege
that the effect of the negligence complained of is to produce an
irrational result adds nothing in terms of the cause of action. The basis for
Mr Stewart’s argument under this head appears to be an effort to take advantage
of the comments of Lord Browne-Wilkinson in X, at p736B et seq
that:
if the
decision complained of is so unreasonable that it falls outside the ambit of
the discretion conferred on the local authority, there is no a priori reason
for excluding all common law liability.
In this
respect he referred to the observations of Lord Reid in the Dorset Yacht Co
Ltd v Home Office case [1970] AC 1004, at p1031A:
there must
come a stage when the discretion is exercised so carelessly or unreasonably
that there has been no real exercise of the discretion which Parliament has
conferred. The person purporting to exercise his discretion has acted in abuse
or excess of his power. Parliament cannot be supposed to have granted immunity
to persons who do that.
We have
already made observations upon the allegation of ‘abuse or excess of power’ in
this case. There is indeed no basis for such an allegation here. Mr Stewart
appears to argue for a somewhat less stringent threshold for liability, ie a
decision or action:
so
unreasonable that it falls altogether outside the ambit of the statutory
discretion: see per Lord Browne-Wilkinson in X at p737A.
However, even
in that respect, it appears that the test should properly be framed in terms of
bona fides: see per Lord Diplock in the Dorset Yacht case, at
p1068 (‘so unrelated to any purpose … [of the discretion
that it was conducive to that purpose’) and per Lord Wilberforce in Anns
v Merton London Borough Council [1978] AC 728, at p755 (‘action taken …
not within the limits of a discretion bona fide exercised’).
Looking at the
particulars of the matters alleged, as opposed to the description accorded to
them, it does not seem to us that the pleadings in this case demonstrate any
proper basis for a plea that in taking, or omitting to take, the steps which
they did, the respondents acted on the basis of a view or decision which no
reasonable person could bona fide have come to. In relation to the special
features (a) to (e) upon which Mr Stewart relied under his fifth head, the
position is as follows.
(a) The point
that the original planning permission granted was limited to unit 1, behind no
36, was never argued before the judge below. It relates to the allegation that
the application was made and granted in a form which described the premises as
premises ‘to the rear of 36’ and that therefore permission was granted in
respect of the wrong property, with the effect that the first defendant’s
workshop activities in the unit behind no 34 never enjoyed planning permission.
In that respect the appellants also relied upon an internal ‘plotting chart’ of
the respondents (a copy of which was shown to this court) drawn at or after the
time of the first defendant’s application to instal a chimney/ventilation shaft
in the unit behind no 34. That chart shows the two units separately coloured,
with unit 1 labelled 88.1887 and unit 2 labelled 89.2320. The respondents, on
the other hand, have produced to the court another internal map showing that
units 1 and 2 were treated together as being at the rear of no 36; unit
2 was also apparently shown in the valuation list as at ‘rear of 36’.
The position
therefore remains obscure, save that there is no reason to doubt that, at least
until the internal memorandum of May 1991, the respondents acted on the basis
that the unit or units in which the first defendant was in fact carrying on his
business were the subject of the original planning permission of November 14
1988. Again, there are simply no facts or particulars pleaded to suggest the
contrary, let alone that the respondents did not at the material times, even if
mistaken, act in good faith. Thus, point (a) does not carry the matter further.
Point (b) also
fails to establish any lack of good faith on the part of the respondents. It is
a simple assertion that the first defendant could not carry on his work in a
manner which could be carried out without detriment to the amenity of the area
under use class B1 and, by implication, that the respondents knew or must be
taken to have known that was so. If the criticism relates to a failure by the
respondents properly to investigate the matter at the time of the original
grant of permission, then, as we understand it, Mr Stewart’s concession that no
breach of a common law duty of care would in those circumstances be established
covers the point. In so far as it is used to attack the delegated permission
granted in November 1989 on the basis that, by then, the respondents knew or
ought to have known that the unit at the rear of no 34 was not entitled to an
industrial use at all, it shows no more than that the council were negligent.
That in itself is insufficient to confer a cause of action on the appellants.
If, as appears, the point is advanced to establish the absence of bona fides,
it seems to us to do no such thing. Even assuming that the unit at the rear of
no 34 was not covered by the original planning permission, no matter has been
pleaded which could lead one to infer that the respondents acted otherwise than
under a bona fide mistake in respect of the position and/or with the bona fide
intention to alleviate a nuisance.
(c) Neither
the letter of September 28 1989 relied on, nor the assertion that the planning
department apparently failed to act upon it, amount to any kind of assertion or
particulars of bad faith.
(d) The
complaint is in substance of a failure by the respondents to serve an
enforcement notice in respect of the first defendant’s activities in unit 1
and/or unit 2 pursuant to section 87 of the 1971 Act, accompanied by a ‘stop
notice’ under section 90. Again, a mere delay or failure in this respect does
not amount to absence of bona fides. In the event it was the preferred course
of the respondents, albeit belatedly, to pursue the remedy of a prohibition
notice under section 1 of the 1969 Act and, subsequently, an abatement notice
under section 80 of the 1990 Act.
(e) The
complaint that nothing was done to enforce those notices is another complaint
of failure and delay. Again, it is no more than that and no particulars are
pleaded which amount to an allegation of bad faith.
Conclusion
Thus, it seems
to us that, despite the further arguments advanced in the appeal, its success
remains dependent upon the appellants establishing the existence of a common
law duty of care owed to them by the respondents not to cause them damage as a
result of a negligent failure to exercise their discretionary powers, and/or so
to carry out their duties as to prevent the creation of a nuisance by an
adjoining landowner which resulted in injury and damage to them. In our view,
no such duty exists and Collins J was correct in the decision to which he came.
This appeal is
therefore dismissed.
Appeal
dismissed.
