Application for planning permission – Secretary of State requiring environmental statement – Claimant deleting application for hotel on basis of alleged advice from official – Site subsequently deleted from local plan – Claimant claiming damages for negligent misstatement – Whether duty of care owed – Claim dismissed – Appeal refused
The claimant acquired the right to buy a 64-acre site in Parkeston, Essex, which she intended to develop for use as a petrol station, offices, an industrial development, a trailer park and an hotel. In November 1988 an application for outline planning permission was submitted to Tendring District Council. The council resolved to grant permission subject to agreements and conditions, and referred the application to the Secretary of State as a departure from the local plan, the Harwich town map. Objectors to the application wrote to the Secretary of State asking for a direction that an environmental statement (ES) was required under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. In December 1991 the Secretary of State formally directed that an ES was required. Subsequently, the planning application was amended by the removal of the hotel from the proposed development. The Secretary of State then withdrew the direction for an ES.
In 1992 the objectors applied for judicial review of both the withdrawal of the direction for an ES and the council’s resolution to grant planning permission. The High Court quashed both decisions because insufficient reasons had been given. The Secretary of State reconsidered the matter and made a direction for an ES. Meanwhile, the Department of the Environment (DoE) concluded that a local plan inquiry would be advantageous. At this inquiry, the inspector recommended that the site be deleted from the local plan, which the council accepted, with the effect that planning permission could not be obtained for the site.
The claimant claimed damages in respect of an alleged negligent misstatement, namely, that she had been advised by an officer of the DoE to amend her application by the removal of the hotel from the proposed development so that the direction for an ES could be withdrawn. She claimed that if she had not been advised to amend the application, she would have proceeded with the preparation of the ES, obtained planning permission and successfully developed the site before it had been deleted from the local plan. Her claim was dismissed: see [1998] PLSCS 26. The claimant appealed.
Held: The appeal was dismissed.
1. A person could only be liable for a negligent misstatement where the relationship between the maker and receiver of the statement gave rise to a duty of care: see Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] 3 WLR 101. Although such a duty could arise in relation to planning matters, this would only occur in exceptional circumstances, particularly where the applicant had his own advisers. The judge had found that there was no relationship between the claimant and the Secretary of State whereby the latter had assumed or undertaken a responsibility towards the claimant. Accordingly, there was no legal basis for her claim, since there was no appeal against the judge’s findings of fact.
2. Even if the claimant had established a duty of care, there was no evidence of any breach of that duty. The statutory provisions contained in the 1988 Regulations indicated that an ES would be required if a site was above a certain size. The ES had been withdrawn after the application for the hotel had been deleted, and it was irrelevant that the decision had been quashed because insufficient reasons had been given.
3. The claim was further bound to fail because there had been insufficient evidence to prove that the claimant would have made a profit from the development and that she had suffered loss as a result of any misstatement.
The claimant appeared in person; Melanie Hall (instructed by the Treasury Solicitor) appeared for the defendant.
Thomas Elliott, barrister
