Negligence – Planning consultant – Claimant retaining defendant planning consultant in connection with retail development – Planning permission requiring submission of landscaping scheme before works commencing – No scheme submitted – Planning permission held to have lapsed – Whether defendant under duty to ensure that approval for landscaping scheme in place – Claim dismissed
The claimant retained the defendant firm of planning consultants in connection with an application for planning permission for a retail and business park on the site of a disused factory in Darlington. An outline permission was granted in 1991 subject to various conditions, including that the development was to be commenced within five years and that a scheme of landscaping should be submitted for approval before works commenced. Approval of reserved matters was given in 1994.
The claimant began development works prior to the deadline, which fell in December 1996, but omitted to submit any scheme of landscaping. The local authority took the view that, since conditions precedent to the development had not been discharged, the works carried out by the claimant had been unlawful and were not effective to preserve the planning permission, which had accordingly lapsed. They obtained a court declaration to that effect.
The claimant brought an action against the defendant for negligence and breach of duty. It contended that the defendant had been retained to take such steps as were necessary to obtain outline permission and thereafter to ensure that the attached conditions were satisfied, and that L, as the partner dealing with the matter, had been negligent in failing to submit a scheme of landscaping by December 1996 or to inform the claimant of the need to do so. It claimed damages of £16m, which represented the alleged difference between the value of the land with the planning permission and the value once that permission had lapsed.
The defendant contended that, under the terms of its retainer, L had not been required to ensure that all necessary consents and approvals were in place by December 1996, unless he had been specifically instructed to do so. It denied that he had been given any such instruction.
The claimant alleged that L had told it that all the necessary consents and approvals were in place, had not informed it until October 1996 that no landscaping scheme had been submitted and had thereupon been instructed to submit one.
Held: The claim was dismissed.
On the evidence, the claimant had not instructed L in October 1996 to submit a scheme of landscaping. In the absence of such instructions, L owed no duty to do so. The defendant did not offer the services of landscape architects, so that if L had were to fulfil the landscaping condition, he would have had to instruct a landscape architect and obtain the claimant’s approval for the architect’s fees and his own in relation to the matter. The scheme of landscaping would have required significant time and cost, which would be expected to be the subject of further instructions by the claimant.
Augustus Ullstein QC and Simon Edwards (instructed by Black Graff & Co) appeared for the claimant; Richard Lynagh QC and Jason Evans-Tovey (instructed by Watson Burton, of Newcastle) appeared for the defendant.
Sally Dobson, barrister
