Plaintiffs owning cottage and surrounding grounds – Plaintiffs planning to build property in grounds and sell cottage – Plaintiffs instructing solicitors to apply for planning permission – Plaintiffs selling cottage after fall in property prices – Whether solicitors should have advised on best strategy to adopt in seeking consent – Whether permission would have been obtained – Plaintiffs awarded nominal damages only
The first plaintiff and his wife, the second plaintiff, purchased a cottage, 1 Laburnham House, Stanford, Biggleswade, and its surrounding land. They planned to build a house in the garden and sell the cottage. In December 1986 they instructed the defendant firm of solicitors, now known as Howe Roche & Waller, to make an application for a 4-bedroomed detached house. Although the plaintiffs wanted permission for as large a house as possible, they would have been happy with permission to build a bungalow. The defendant failed to make the application. Subsequently the second plaintiff phoned Bedfordshire District Council, and was told that no application had been made. The plaintiffs then terminated the defendant’s instructions and in June 1989 instructed planning consultants.
In July 1989 an application was submitted and permission was refused. A second application was also refused. In January 1991 the plaintiffs instructed another planning consultant and a further application was made, which was refused. Various modifications to the proposal were made and yet another application was submitted. The planning committee inspected the site and permission for a bungalow was granted in December 1991. The bungalow was built and the plaintiffs sold the cottage for £65,000. The plaintiffs issued proceedings claiming that the defendant had failed in its duty by not submitting the application, and contending that the defendant had been under a duty not only to submit the application, but also to approach the relevant planning officer and assess the officer’s attitude to the application to see what would be acceptable. The plaintiffs submitted that they would have then revised the application, obtained permission and sold the cottage before the fall in property prices. The defendant contended that even if they had submitted an application it would have failed. It was agreed that the application had only ultimately succeeded following two very significant changes in 1991, and the particular nature of the planning decision taken by the local authority in refusing the application.
Held The plaintiffs were entitled to nominal damages only.
1. The defendant had been under a duty to approach the relevant planning officer to assess his attitude to the application, and to see whether any application would have been acceptable. Accordingly, the defendant had been in breach of that duty.
2. The Bedfordshire structure plan policy 6A, the local plan policy H7 and the objections which were subsequently made by owners of adjoining bungalows, would have been a solid ground for the rejection of any application submitted by the defendant. Therefore it had not been shown that the plaintiffs had had a real or substantial chance of obtaining permission, which would have enabled them to build and move into the bungalow and sell the cottage before the fall in property prices in 1988. Accordingly, the plaintiffs had not proved any loss and were entitled to nominal damages only.
Nicholas le Poidevin (instructed by Peter Gillies & Co) appeared for the plaintiffs; Rhodri Thompson (instructed by Mills & Reeve, of Cambridge) appeared for the defendant.
