Negligence — Planning permission — Plaintiff given ‘go ahead’ to continue building works by officer — Grant of planning consent outside officer’s powers — Enforcement action — Whether council liable for negligent advice of officer
In September
1988 the plaintiff made an application to the respondent borough council to
amend an existing planning permission. The council responsible for granting
building regulation approval had no power to determine an application for
planning consent. In October 1988 the council’s senior building control officer
(‘T’) informed the plaintiff by telephone that he could carry out building work
to his property. The plaintiff commenced building works in reliance of T’s
advice. Subsequently the plaintiff was served with an enforcement notice in
respect of the works by the county council, as planning authority through their
agent, Dartmoor National Parks Authority (‘DNPA’). The plaintiff’s appeal to
the Secretary of State for the Environment against the enforcement notice was
unsuccessful. He appeals against that decision on the ground that the council
were vicariously liable for the negligent advice of T.
A duty of care
was owed by the borough council to the plaintiff. T knew or ought to have known
that the plaintiff was relying on him. Where an applicant deals solely with a
senior member of a local authority, who represents pursuant to a power said to
be available to him that he has approved an application to vary an existing
planning permission, the initial application for which had also been made to
the same local authority, it would be difficult to argue the applicant is
unreasonable by acting on the purported approval. The borough council were in
breach of their duty by telling the plaintiff that he could ‘go ahead’ with the
building works, when they knew or ought to have known that the question of the
amendment of the existing planning permission was still unresolved, since it
had not been passed on to the DNPA by the council and T had no authority to
deal with it: see p118A–E.
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
Donoghue v Stevenson [1932] AC 562, HL
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
Robinson v National Bank of Scotland 1916 SC (HL)
Tidman v Reading Borough Council [1994] 3 PLR 72
Claim for
damages for negligence
This was a
claim for damages for the negligence of West Devon Borough Council, in relation
to advice given by an officer authorising the plaintiff to carry out building
works.
Head (instructed by Foot & Bowden, of Devon) appeared for the plaintiff,
Peter Lambert.
Wynter (instructed by Wolferstans, of Devon) appeared for the defendants, West
Devon Borough Council.
following judgment was delivered.
OVEREND J: This is Mr Lambert’s claim for damages for the alleged negligence
of West Devon Borough Council (WDBC), in respect of the authorisation for works
carried out at his property at 3 Buckland Terrace, Leg O’Mutton Corner,
Yelverton, in 1987 and 1988. The dispute primarily centres around the alleged
treatment of the plaintiff’s application to amend an existing planning
permission by WDBC’s then principal building control officer, Mr Timmins, in
October 1988.
In a sentence,
the plaintiff asserts that he proceeded with the development after he had been
orally notified by Mr Timmins that he could do so, following a question that
was directed at both the planning and the building regulation aspects of the
development. It is now common ground that Mr Timmins, as a building control
officer, had no power to deal with the planning aspect, although he did have
power — which he exercised — to grant building regulation approval. The
plaintiff alleges that he commenced building works on the strength of what he
was told by Mr Timmins, and was subsequently forced to cease the works when
required to do so by Dartmoor National Park Authority (DNPA).
The trial has
been of the issue of liability only.
Role of
the authorities
The defendant
authority — WDBC — were at the material time the relevant authority for the
purposes of granting building regulation approval. Mr Timmins was the senior
building control officer, and as such was solely concerned with building
regulations.
The
responsibility for planning permission was less straightforward, since the
plaintiff’s property lay within the area of Dartmoor National Park Authority.
In those circumstances, the local planning authority responsible for
determining planning applications were Devon County Council, who acted through
their agents, DNPA.
By article
7(1) of the General Development Order 1987, however, any application for
planning permission had to be made to the district planning authority, namely
to WDBC. Article 7(4) provided that:
… the
district planning authority shall as soon as may be notify the applicant
that the application will be so determined and shall transmit to the county
planning authority all relevant plans, drawings, particulars and documents
submitted with or in support of the application …
In other
words, initial planning applications in respect of development within the area
of DNPA would be made to WDBC, who would then transmit them to DNPA for
determination under powers delegated by Devon County Council.
At trial, an
issue arose as to what should be the appropriate procedure when an amendment of
an existing planning permission was sought. Happily, that issue was resolved by
the acceptance of both parties of the contents of a letter from Mr Wall dated
July 12 1996. Mr Wall was head of development control of DNPA. He wrote:
Until the
procedures changed in 1992, applications for planning permission within the
National Park were, in the first instance, submitted to the relevant District
or Borough Council, in this case West Devon Borough Council. They retained a
copy of the application, notified the relevant parish council of its receipt
and then passed the application on to this Department for determination.
Because of that procedure it was often the case that requests for the approval
of amendments were also submitted to the District or Borough Council which
would forward them directly to this Department. Such requests for the approval
of amendments were also submitted direct and in either case we would assess
whether the amendment was ‘minor’, and could therefore be dealt with using our
delegated powers, or whether it was such that a new application had to be
submitted.
In his
reference to the use of delegated powers Mr Wall no doubt meant the power of
the local planning authority — which was delegated to DNPA — to approve minor
amendments to existing permissions. The planning practice was helpfully set out
by Mr Prisk, the plaintiff’s planning consultant, in his report. He referred to
Circular 22/80, having first stated that there is no primary legislation which
deals with the submission of amended plans following the grant of planning
permission:
It is
sensible and time-saving to allow applicants to amend applications for approval
of reserved matters or small details of full applications thus avoiding the
need for a fresh application, as long as the amendments do not materially
change the character of the development.
Chronology
Since this
case largely turns on the findings of fact, I shall set out the chronology
first. Further, as the discrepancy between the evidence of the two witnesses,
the plaintiff, Mr Lambert, and Mr Timmins is stark, I set out much of the
detail of the dispute. The principal areas of dispute are, however, what was
said between them at a meeting in September 1988 and on the telephone on or
about October 8 1988.
Mr Lambert and
his partner purchased the property in 1986. It was at the time a shop with a
flat in need of development. He said that he ascertained that the person to
whom he should speak to about planning
that he had nothing to do with planning permission, being solely involved with
building regulations.
There was a
conversation between them in 1986 — Mr Timmins said that it was on December 4
1986 ‘on site’, while Mr Lambert said that it was informally on the telephone —
during which it is common ground that the planning and building regulation
procedures were explained to Mr Lambert. Mr Lambert’s written evidence was to
the effect that he was put in touch with Mr Wall, told that planning permission
application should be made to WDBC in the first instance, and that they would
forward it to DNPA, and that building regulation approval would have to be
sought from WDBC. However, in his oral evidence, Mr Lambert said that Mr
Timmins’ note of their 1986 meeting was a ‘fabrication’.
Mr Lambert
thereafter instructed architectural technicians (then called Arena
Architectural Services — ‘Arena’) to draw up plans and submit an application
for planning permission. They did so on April 20 1987 following a discussion
with Mr Wall. The application was made appropriately to WDBC for onward
transmission to DNPA. Plans accompanied the application, which were later
amended, in order to meet the requirements of DNPA as stipulated by Mr Wall,
who dealt directly with Arena after receipt of the application from WDBC.
On June 5 1987
the planning permission was granted by DNPA on behalf of Devon County Council
on the basis of the revised drawings A7402.2A and A7402.3A. The permission
contained a condition that:
the
development hereby permitted shall be carried out only [my emphasis] in
accordance with the details shown in the amended drawings nos A7402.2A and
A7402.3A …
I deal with
the ‘only’ condition subsequently.
Following
receipt of planning permission, Mr Lambert took no further steps until over a
year later. In September 1988 Mr Lambert decided that he would like to amend
the approved plans, in light of permission that had been granted for an
extension to a nearby building that would ‘seriously affect’ his view.
Accordingly, he again approached Mr Timmins and showed him some sketches,
setting out what he had in mind. There is a substantial dispute as to what
occurred in September.
September
meeting — Mr Lambert’s evidence
Mr Lambert’s
written evidence was as follows:
On the
evening of 25th September 1988 Mr Timmins, who was an occasional customer at
our nearby restaurant, came for a meal. After the meal I showed him the
sketches explaining that I wanted to reshape the roof and I asked him whether
this would be alright. He said he could authorise a certain amount of changes
if he did not consider them to be detrimental to the original planning
permission. He said that he could see no reason from my sketches why he should
not authorise this change however he would need to discuss it with a colleague
to check that he could authorise the amendments. He told
said he would get them through as soon as possible. He made it clear that if he
could authorise them then I would not need further planning permission and
therefore this would save time.
September
meeting — Mr Timmins’ evidence
Mr Timmins’
written evidence was as follows:
At our meeting
in September 1988, I recall seeing plans showing the DNPA planning permission
stamp and Mr Lambert asked whether he could start work. I recall telling him
that we did not yet have any application for Building Regulation approval but,
provided the plans complied with the Regulations, there should be no difficulty
in him starting work. He told me that he wanted to make minor changes to the
plans. He explained these and I recall telling him that I did not foresee
problems with the plans — for obtaining Building Regulation approval [Mr
Timmins’ emphasis]. I recall that I specifically told him that he needed to
obtain approval from DNPA because the proposed amendments involved changes in
the elevation.
At that
meeting I could see that he had had assistance from architects (Barbican Design
Services) and advised him to notify his architects and get them to submit the
application for Building regulations.
Mr Lambert tried to ring his architects there and then but there was no reply.
During his
oral evidence Mr Timmins stressed that he saw it as being his role to make the
position clear (about the need to obtain planning permission).
Mr Timmins’
attendance note of the meeting is dated September 23. It reads:
I met Mr
Lambert on site today, who requested an inspection for the commencement of
work. However, on further investigation it appears that no Building Regulation
application has been submitted for the work, as approved under the Planning
Permission on Plan no. 8304/1. Mr Lambert was informed, he attempted to get
hold of the architect from Arena Technical Services at the time of my site
visit, but the agents were unobtainable. In due course he will be submitting an
application. The work so far entails the removal of an existing pitched roof,
and re-placing the top storey with the existing flat roof construction with
parapet around.
Mr Sebastian
Head, for the plaintiff, remarks that there is no reference in this note to Mr
Lambert being advised that planning permission should be sought of DNPA in
respect of the proposed amendments, either as they affected the elevation, or
at all. His comment was the more cogent in the light of Mr Timmins’ evidence
that since Anns v Merton London Borough Council [[1978] AC 728]
he had made a point of recording what was said on site.
Letter
dated September 27 1988
Following the
meeting with Mr Timmins, Mr Lambert again approached his former architectural
technicians, who were now trading as Barbican Design Services. Together they
drew up amended plans of what
dimensions and shape of what had been shown as bedroom 3 on the approved plans
at the roof garden level, and which was to become a lounge. Barbican wrote a
letter for Mr Lambert to take to WDBC. It was addressed to the borough planning
officer at WDBC, was dated September 27 and read as follows:
Proposed
Alterations to ‘Ollies’ Leg O’Mutton Corner Yelverton for Janet M Olliver and
Peter Lambert Esq
On 15 June
1987 our previous company, Arena Architectural Services, received approval
under the Planning Acts for the above development, dated 5 June 1987,
application no … Our clients would like to amend the internal layout in order
to appreciate the superb view over the moors. This would entail a few small
external alterations and we would appreciate it if these could be treated as
amendments to the approved plans to avoid a fresh detailed planning
application.
We would also
like to apply for approval under the Building regulations
and enclose the following documents plus an additional copy of the drawings for
the Planners.
… [Enclosures
specified, including 3 plans, A7042.1, A7042.2B and A7042.3B] …
We would also
like to give you 48 hours notice of commencement of work as our clients intend
to carry out some demolition work immediately. They have spoken to your
building inspector, Mr Timmins, who told them to make this application.
Please
telephone us on … if you have any queries whatsoever …
Mr Lambert
said he took the letter and its enclosures to WDBC on September 27 or 28:
I asked for
Mr Timmins of the Planning Department and was directed to his office. I saw him
together with Mr P Seager. I gave him the envelope, he read the letter, looked
at the plans and asked me for a fee of £39.10. I gave him this money, his
assistant Mr Seager took it and returned with a receipt. Mr Timmins said that
he thought it would be OK and that he would let me know in a week or so.
Mr Timmins in
oral evidence accepted that the letter may have been brought to him ‘at the
desk’, although in his written evidence he had said that he did not recall the
letter and enclosures being handed to him or opened by him.
The receipt
given for the fee paid by Mr Lambert is solely in respect of building
regulations ‘Building Control — Deposit of Plans’. There is no direct evidence
as to what fees were leviable on an application to amend an existing
permission. However, Mr Prisk, the plaintiff’s planning consultant, referred
the court to Circular 1/87:
Circular
22/80 gives advice on the sensible handling of cases where amendment of an
application is sought before a decision is given. Where after planning
permission has been granted, or reserved matters have been approved, an
applicant wishes to vary his proposal, the local planning
such significance as to require the submission of a fresh planning application.
In making this judgment the local planning authority must discount the fees
consequences of their decision, and the introduction of the fees scheme should
not reduce their flexibility in handling such cases.
The inference
which I feel able to draw is that no fees were payable on an application to
vary an existing planning permission. Accordingly, the absence of fees payable
in respect of planning matters, as shown on the receipt, does not take the
matter any further.
Involvement
of the architectural technicians
Mr Lambert’s
evidence is that the plans and the letter of September 27 were drawn up in the
course of an all night working session with him and Barbican Design Services.
The reason for the overnight activity was because of the imminence of
Barbican’s holiday commitments. He said that Barbican were away on holiday from
that date until well into October, and therefore played no part in what
followed on or about October 8.
Grant of
building regulation approval
Mr Timmins in
due course granted building regulation approval. He caused the approval stamps
to be endorsed on the three plans (dated October 7 1988). He said in his
written evidence:
I granted
Building Regulation approval and sent the Notice of Passing of Building Plans
(which I note is dated 3rd October 1988)
Although Mr
Lambert recollects receiving the building plans, together with a proforma
covering letter, Mr Lambert denies having received the notice of passing of
building plans. A document was produced by the defendants purporting to be a
copy of the notice. The best copy of the copy document shows it to be dated
October 7 1988 in two places and October 3 1988 in another.
If the notice
was received, the defendants contend it is significant, because it says in a
prominent position:
It is
emphasised that if the proposed works constitute or involve development within
the meaning of the Town and Country Planning Act 1971, for which express
planning permission is necessary, no work may be proceeded with until such
permission has been obtained.
The undated
proforma letter that was received by Mr Lambert was clearly designed to be a
covering letter to the ‘Building Regulation Approval Notice’, and which also
explained the need for inspections to occur, coupled with the provision of a
set of ‘stage inspection cards’.
October 8
1988 — Mr Lambert’s evidence
Mr Lambert’s
written evidence was:
On about 8th
October I received a registered packet containing the three plans all marked
with a red stamp approved West Devon Borough Council
together with a standard letter and a set of stage inspection card (to be
returned by me after I had completed each stage of the works requesting formal
inspection of that stage). The letter refers to building regulation approval
notice, I did not receive this notice. However, I do recall that when I
received this packet in order to make doubly sure that I could now commence
developments I rang Mr Timmins. The conversation was along the following lines.
I said:
‘Hey John,
magic, you have been able to amend it yourself there has been no problem’
He said
‘No, go
ahead’
In oral
evidence he said that he did not realise that he had not been sent the building
approval notice — he assumed that the reference in the undated proforma letter
was to the stamps on the building plans which were returned to him. He also
said:
I got them
(the plans) back unexpectedly. I said (to myself) ‘Good grief: he’s got it
through’. I picked up the phone and checked with him. He said ‘Fine: Go ahead’.
Mr Lambert
then decided to start work immediately, sending WDBC that day the first stage
commencement of work inspection card.
October 8
— Mr Timmins’ evidence
Mr Timmins’
written evidence was:
I do not
recall the telephone conversation mentioned by the plaintiff nor do I recall
using the words that he alleges that I used. Certainly any comment that I made
related solely to Building Regulation approval and not to Planning Permission.
In oral
evidence Mr Timmins was prepared to accept that a telephone call may have been
made by Mr Lambert after September 27, but he had no other recollection of the
conversation.
Although no
point was taken on it, I observe that October 8 1988 was a Saturday.
What
happened to the application to amend the existing planning permission?
It is again
common ground that nothing happened to the application to amend the existing
permission. It was not forwarded to DNPA for it to be processed, although it is
clear from Mr Wall’s agreed evidence that it should have been.
Mr Timmins’
written evidence on the subject was:
It is
certainly true however that I did not forward the documents to DNPA. This is
simply because it did not cross my mind that I was being asked to do so,
knowing as I did that Mr Lambert and his agents were well aware of the need to
approach DNPA direct for planning approval.
In oral
evidence, however, Mr Timmins said:
I took no
part in forwarding the amendment to the appropriate department, it not being my
duty to do so. I was not aware of nothing being done by the WDBC.
Later in his
evidence, in answer to a question from the court, Mr Timmins described a
procedure whereby applications were circulated through the departments, going
in the process to WDBC planning department before finally arriving at his
building control department. He said:
I assumed our
planning department would have handled it.
Commencement
and continuation of the works
The evidence
of Mr Lambert was that having sent in the first stage inspection card, the
existing pitched roof was removed and work progressed in accordance with the
most recently approved plans A7042.1, A7042.2B and A7042.3B. He sent cards
requesting inspections of the steelwork and the drains. He said that Mr Timmins
visited the site regularly and was ‘very helpful’. In particular:
On the
occasion of the steelwork inspection he authorised a further amendment to the
plans to change the position of an internal load bearing wall and line it up
[with] existing load bearing facilities. This amendment meant that the width
and roof height was increased.
In oral
evidence, Mr Lambert identified on the plans the substantial E/W beam that he
said Mr Timmins authorised to be moved a metre to the south, which beam
supported the southern face of the new roof garden lounge.
Mr Timmins’
written evidence (signed on September 12 1994) was:
It is
perfectly possible that I approved minor amendments to the plans in the course
of my inspections. These approvals related solely to Building regulations and not to Planning
Permission. Although I cannot specifically recall it, I may well have
authorised the increase in width of the building over and above that shown on
the plans, to allow a vertical wall to rest on an existing load bearing wall
(paragraph 22 of the Statement of Claim). Again that authority would simply
have been given for Building Regulation approval and would not, in any sense,
have been Planning Permission.
In giving his
evidence however, Mr Timmins said that he had never authorised the movement of
the beam in question. He said that if a ‘client’ requested a change internally,
which did not affect the envelope of the building requiring planning
permission, then he had authorisation to approve movement of internal walls. On
being asked by the court whether he still stood by the words of his written
statement (quoted immediately above), he said he wished to retract them.
Cessation
of the works
On or about
October 27 the site was visited by Mr White, an enforcement officer from DNPA.
By then the shell of the building had been
which Mr Lambert said had been approved by Mr Timmins. Mr White objected to the
works which were being carried out, since they were not in accordance with the
plans for which planning permission approval had been given by DNPA.
Thereafter
enforcement procedures were put in motion by DNPA from which Mr Lambert
unsuccessfully appealed. He was also prosecuted twice for failure to comply
with DNPA’s requirements.
Mr
Timmins’ ‘knowledge’ of the alterations
In the course
of the DNPA involvement, Mr Bealing of the DNPA wrote a letter dated October 28
1988 (the ‘unaware letter’) to Mr Lambert as follows:
WEST DEVON
BOROUGH:
UNAUTHORISED
AMENDMENTS TO ELEVATIONS
OF PLANNING
PERMISSION: OLLIES, YELVERTON
Further to my
meeting with you, I have been in contact with Mr Timmins the Building Inspector
at Tavistock and am informed that he is unaware of the alterations that have
been carried out with respect to the raising of the eaves levels and large
windows having been inserted in the rear elevation of the roof level.
In view of
this I must ask you to cease work …
In evidence Mr
Timmins’ position on his reported response to Mr Bealing was that he was only
aware of work carried out in accordance with the 2B and 3B plans, which he
regarded as the baseline. In re-examination he said:
I said to Mr
Bealing — no changes (unaware) had been made to the Building regulations plan that had been approved
— that is what I was working from. It may well be that I had seen the eaves and
large windows on my site visits. I meant it was in accordance with 3B, ie the
plan approved from the Building Regulation purposes.
Attack on
Mr Timmins
Mr Head mounts
a sustained attack on the accuracy and reliability of Mr Timmins, whose
evidence he says should not be preferred where it conflicts with that of Mr
Lambert. Foremost among his submissions are four propositions, namely:
(1) that Mr Lambert would have been
unlikely to have started the works at the time that he did unless he believed
that he was permitted to do so; further that it was difficult to understand why
Mr Lambert phoned Mr Timmins on receipt of the building regulation approved
plans, unless it was to inquire what the position was on the application for
approval of the amendment to the planning permission, which had been submitted
to Mr Timmins and WDBC at the same time as the application for building
regulation approval.
(2) that the failure by WDBC to send on to
DNPA Mr Lambert’s request for approval of the proposed amendments was
indicative either of gross
support for the contention that Mr Timmins did indeed purport to act upon the
application, by granting it.
(3) that until he retracted his written
evidence at the conclusion of his oral evidence, in answer to a question from
the court, Mr Timmins had specifically accepted (since at least December 1994)
that he might well have authorised a development on site which would have had
an effect on the external envelope of the building, albeit for building
regulation purposes. The significance of the retracted admission was that it
had accepted that Mr Timmins contemplated having authorised a change to the
development of the property which fell firmly into the planning permission
arena, albeit in the guise of a building regulation decision.
(4) that when dealing with the September
1988 discussion in his first written statement (para 11, dealing with para 12
of the statement of claim), Mr Timmins purported to be referring to his power
to authorise changes in the plans for the regulations. At that stage, says Mr
Head, there were no building regulation plans, since no application for
building regulation approval had been made. The only approved plans capable of
amendment at the time of the conversation Mr Timmins was speaking of were the
planning permission plans.
Mr Head also
points to other areas of Mr Timmins’ evidence, which he says, taken together,
undermine his credibility. In particular he relied on the response of Mr
Timmins to Mr Bealing, reported in the letter dated October 28 (the ‘unaware’ letter).
Mr Timmins admitted in evidence that he may well have seen the eaves and large
windows on his site visits. It was no answer to the criticism that he was
reported as saying he was unaware of the alterations to assert that what he
meant was that he was unaware that the alterations were in breach of the
building regulation plans. He must have known that the approved building
regulation plans were different from the approved planning permission plans,
since that was the very inquiry being conducted by Mr Bealing.
Further, Mr
Head criticised the manner of Mr Timmins in giving his evidence. He said that
Mr Timmins ‘tailored’ his evidence to suit the direction in which the wind was
blowing. He pointed to the retraction of his evidence relating to the authorisation
of the movement of the wall of the lounge. In addition he relied on Mr Timmins’
amendment of para 2 of his first written statement, which he amended in chief
from:
I would
expect an application for planning permission to be made initially (and direct)
to DNPA either before building regulation approval was sought or at least at
the same time
to:
In 1987/88 I
would have expected an application for planning permission to be made initially
(and direct) to WBDC …
Mr Head said
that the reason given by Mr Timmins for the alteration
had been) did not stand up to analysis, since in his statement he was
purporting to describe the ‘background to the action that has been brought by Mr
Lambert’. Mr Head contended that the true reason for the amendment was that the
defendant’s counsel had just admitted the contents of Mr Wall’s letter, which
was plainly inconsistent with Mr Timmins’ statement.
Further, at
one stage during his cross-examination by Mr Head, Mr Timmins said that he
‘probably did not put clearly enough to Mr Lambert’ the necessity of separate
planning permission having to be sought and obtained for any changes in the
plans. As soon as he realised that significance was being attached to that
concession, he immediately retracted it.
Response
on behalf of the defendant authority
Mr Colin
Wynter, on behalf of the defendant, made the following points:
(1) It was
apparent, at the very least from the letter dated September 27 from Arena to
the borough planning officer that they, and Mr Lambert, knew perfectly well
that both building regulation approval needed to be sought and the planning
permission situation regularised either through the minor amendment procedure
or by a fresh planning application.
(2) That the
letter enclosed separate plans ‘for the planners’.
(3) That Mr
Timmins was not authorised to deal with planning permission, but was solely
concerned with building regulations — ie the structure and integrity of the
building and not its visual or environmental impact. In the normal course of
events he would be entitled to assume that planning matters would be dealt with
by those whose job it was so to deal.
(4) That there
was no apparent benefit to Mr Timmins in acting outside his authority.
(5) That the
receipt showed that a fee had been paid in respect of building regulation
matters alone.
(6) That Mr
Timmins could not have known that Mr Lambert had not received the formal
building regulation approval notice.
(7) That it
was understandable that Mr Timmins’ evidence was less specific than Mr
Lambert’s — he dealt with large numbers of applications.
(8) That it
appeared to Mr Timmins that Mr Lambert was in receipt of advice from
architectural technicians (‘professional advice’) at all material times.
(9) That Mr
Lambert knew that DNPA were particular about visual impact.
(10) That a
businessman such as Mr Lambert, with ‘professional advisers’ would have
expected to receive some formal notification of approval of a minor amendment to
an existing planning permission before assuming the development could go ahead.
(11) That Mr
Lambert was also capable of making exaggerated claims — demonstrated not least
by his readiness to label the December 1986 attendance note as a ‘fabrication’.
Finding of
fact
In coming to
my conclusions, I have borne in mind that what the plaintiff is asserting
occurred is something unusual, namely the apparent exercise by Mr Timmins of
powers which he knew or ought to have known he did not possess. I am also mindful
of the fact that although the standard of proof in civil cases is the balance
of probabilities, the more serious the allegation that is made, the greater
should be the degree of certainty in the mind of the tribunal.
It is clear,
however, that all was not well at WDBC, for they did not deal with Mr Lambert’s
application to modify the existing planning permission as it is accepted they
should have done, namely by sending it on immediately to DNPA, particularly
when 48-hours notice of starting works was being given (albeit apparently for
building regulation purposes). At the very least, that was a lamentable
failure. That fact alone would not, of course, be decisive in favour of
preferring the plaintiff’s evidence to that of Mr Timmins, for it could equally
be evidence of errors or omissions on the part of persons other than Mr
Timmins.
It is,
however, the totality of the evidence that convinces me that, despite the
inherent unlikelihood of a building control officer making decisions outside
his proper sphere, this is in fact what occurred here. I was unimpressed with
the substance and the quality of the evidence of Mr Timmins, who I found to be
an unreliable witness, shifting his stance to meet the occasion on more than
one occasion. It was true that Mr Lambert, too, was not without his faults as a
witness — leaving the court in a rage on one occasion and alleging fraud
without proper consideration or foundation on another. It is nevertheless the
task of the judge to seek to find the truth, notwithstanding the human
imperfections of the witnesses appearing before him. On balance, where they
differ, I prefer the evidence of Mr Lambert.
Consequences
Accordingly, I
conclude that steps taken by Mr Lambert in commencing the construction of the
shell of the building in a manner that was eventually stopped by DNPA’s
enforcement officer were a direct result of the information passed by Mr
Timmins to Mr Lambert. Mr Timmins had in late September led Mr Lambert to
understand that it might be possible that Mr Timmins would be able to deal with
the variation of the existing planning permission — that was one of the reasons
why the letter of September 27 was written to WDBC, asking for both the
planning and building regulation matters to be dealt with. On or about October 8
1988, when asked by Mr Lambert if he had been ‘able to amend it yourself’ —
which can only be a reference to the existing planning permission — Mr Timmins
agreed there had been no problem and told Mr Lambert to ‘Go ahead’. In the
context of what I find had been said in September by Mr Timmins, there could
then have been no doubt in Mr Lambert’s mind, namely that he had been told by
Mr Timmins that there were no problems with either planning permission or with
building regulation approval.
I further
find, as alleged in para 22 of the reamended statement of
the increase in width of part of the building over and above that shown on the
plans submitted on September 28 1988, to allow a vertical wall to rest on the
existing load-bearing wall.
It does not
seem to me that there is any room for mistake or misunderstanding on the part
of Mr Lambert in this case. Mr Lambert knew full well that the planning
permission variation needed to be addressed. He raised it on October 8 with Mr
Timmins on receipt of the approved building plans and had a conversation, the
effect of which was that the planning question had been resolved by Mr Timmins.
Earlier, in September, Mr Timmins had told Mr Lambert — incorrectly, as now all
parties agree — that he might have the power to deal with the planning
variation.
Further, I am
not persuaded that the formal building regulation approval notice was ever sent
to Mr Lambert. The photocopy of the ‘copy document’ that was produced by the
defendants seemed to be dated in three places, the one nearest the signature
(to the right of it — October 3 1988) appearing to indicate signature of the
notice by the borough planning officer four days before the plans were in fact
passed (October 7 1988). This discrepancy, coupled with the already admitted
error in failing to transmit the application to amend the planning consent to
the DNPA lend support to Mr Lambert’s contention that the regular procedures
were not being followed in this case.
Law
Mr Head bases
the plaintiff’s case on the dictum of Lord Reid in Hedley Byrne &
Co Ltd v Heller & Partners Ltd [1964] AC 465 at p486, where
after a reference to Robinson v National Bank of Scotland Ltd
1916 SC (HL) 154, at p157, he continued:
This passage
makes it clear that Lord Haldane did not think that a duty to take care must be
limited to cases of fiduciary relationship in the narrow sense of relationships
which had been recognised by the Court of Chancery as being of a fiduciary character.
He speaks of other special relationships, and I see no logical stopping place
short of all those relationships where it is plain that the party seeking
information or advice was trusting the other to exercise such a degree of care
as the circumstances required, where it was reasonable for him to do that, and
where the other gave the information or advice when he knew or ought to have
known that the inquirer was relying on him. I say ‘ought to have known’ because
in questions of negligence we now apply the objective standard of what the
reasonable man would have done.
In the speech
of Lord Hodson similar words appear at p514:
I do not
think it is possible to catalogue the special features which must be found to
exist before the duty of care will arise in a given case, but since preparing
this opinion I have had the opportunity of reading the speech which my noble
and learned friend, Lord Morris of Borth-y-Guest, has prepared. I agree with
him that if in a sphere where a person is so placed that
to make careful inquiry such person takes it upon himself to give information
or advice to, or allows his information or advice to be passed on to, another
person who, as he knows, or should know, will place reliance upon it, then a
duty of care will arise.
I was also
referred to the case of Tidman v Reading Borough Council1,
a decision of Buxton J dated November 4 1994.
1 Reported at [1994] 3
PLR 72
In the light
of the above findings of fact I conclude:
(1) that on or about October 8 in the
circumstances of an inquiry of Mr Timmins, who had just granted building
regulation approval, by Mr Lambert about his outstanding co-terminous
application to vary the existing planning permission, Mr Timmins should have
realised that Mr Lambert was relying on him, particularly when the inquiry came
soon after the September conversation, in which Mr Timmins had held himself out
as having the possible power to deal personally with such an application to
vary.
(2) that it was reasonable for Mr Lambert
to have relied on what was said by Mr Timmins, as Mr Timmins had told him that
he might have the power to deal with changes to existing planning permission.
It does not seem to me that the facts that Mr Lambert was a ‘business man’, or
that he had hitherto had ‘professional advice’ from Barbican/Arena, or that the
‘advisers’ had had previous direct contact with DNPA, who were known to be
‘particular’ about visual impact, alters the position. Nor does it matter, on
these findings of fact, that Mr Timmins might reasonably have thought that the
notice of passing of building plans (with its disclaimer) had accompanied the
approved building plans when they were sent to Mr Lambert. These were all
matters relied on by Mr Wynter in his submissions on the reasonableness of Mr
Lambert’s reliance on what was found to have been said by Mr Timmins. It seems
to me, however, that where an applicant deals solely with a senior member of a
local authority, who represents pursuant to a power said to be available to
him, that he has approved an application to vary an existing planning
permission, the initial application for which had also been made to the same
local authority, it is difficult to see how it could be said that the applicant
is acting unreasonably by acting on the purported approval, unequivocally
framed as it was in the words ‘Go ahead’.
Prudence might
have dictated a further consultation with Barbican, had they not been on
holiday. But a failure to do so, or to wait until they returned, does not, in
my view, turn a reasonable reliance into an unreasonable one, in the special
and unusual circumstances of this case.
(3) that Mr Lambert did rely on Mr Timmins’
advice on or about October 8, by commencing the works, which he would not
otherwise have done.
Accordingly a Hedley
Byrne v Heller duty of care arose in respect of what was said on or
about the October 8 1988.
Breach of
duty
It follows, in
my judgment, that the defendants were in breach of their duty of care by
telling the plaintiff that he could go ahead, when they knew or ought to have
known that the question of the amendment of the existing planning permission
was still unresolved, since it had not been passed on to DNPA by WDBC and Mr
Timmins had himself no authority to deal with it.
Mr Prisk the
plaintiff’s planning expert, further contended in his report that the
application to vary was doomed to failure in any event, in the light of the
‘only’ wording of the condition to the original planning consent. Both Mr Prisk
and Mr Wynter, architect called on behalf of the defendant local authority,
were of the view that the effect of the word ‘only’ was that no minor
amendments could be considered by the planning authority once the permission
had been granted.
Mr Head, for
the plaintiff submitted that this was not a true construction, for the
inclusion of the word ‘only’ in the express condition provided no more limit on
the activities of the developer than the reference to the self-same plans in
the description of the development in the body of the permission.
I conclude
that it will be up to an individual planning authority to decide whether as a
matter of practice they will permit minor amendment of development granted with
an ‘only’ condition without the need for a fresh planning application. It does
not seem to me that the word ‘only’ precludes the use of the minor amendment
procedure as a matter of construction, although some authorities may as a matter
of practice so treat it as having that effect.
Failure to
forward the application to amend to DNPA
In the light
of the acceptance of Mr Wall’s letter by WDBC, I do not understand Mr Wynter to
be denying that WDBC were under a duty to Mr Lambert in respect of the
transmission of the application to vary to DNPA. I was not addressed as to the
nature of such a duty, although it seems clear that it did not arise under Hedley
Byrne, but rather under the neighbour principles of Donoghue v Stevenson
[[1932] AC 562] there being no primary statutory procedure covering the making
of an application to vary.
I find that
the WDBC were in breach of that duty of care by not passing on the application
to vary to DNPA, which should have been done immediately, in light of the
indication in the letter of September 27 that works were due to commence within
48 hours.
Contributory
negligence
Para 25 of the
reamended defence raises allegations of contributory negligence which are based
on assertions of facts that I have not found. Specifically, in relation to the
paragraphs incorporated in para 25(a):
Paragraph
13(b) proceeds on the assumption that the formal Approvals Notice was received
by Mr Lambert, which I not found to be the case.
and that Mr Lambert’s evidence of the conversation on or about 8th October is
accepted in preference to that of Mr Timmins.
As to para
25(b), I do not accept that the plaintiff was negligent by failing to notify Mr
Timmins ‘that he intended not to or was unlikely to report matters back to his
advisers’. He was entitled to act on what Mr Timmins told him without the
necessity of referring to his advisers, and owed no obligation to Mr Timmins to
inform him what advice he was proposing or not proposing to take. In any event,
Mr Timmins’ own evidence was to the effect that Mr Lambert was having
difficulty contacting his advisers at the material time.
Finally as to
para 26(c), I have already dealt with the allegation that Mr Lambert was
negligent in failing to notify his advisers of what I have found was said to
him by Mr Timmins, both in the proceeding paragraph and in relation to the
question of reasonable reliance.
Accordingly,
there is no room for a finding of contributory negligence against Mr Lambert.
Conclusion
In the light
of what I have found to be breaches of the duties owed by WDBC, questions of
causation scope and quantum will now need to be addressed at a further
hearing.
The council
were liable for negligence.
