Town and country planning – Fraud – Unlawful means conspiracy – Deceit – District council granting planning permission for residential development on former convent school site and identifying it as strategic housing site in core strategy – Claimant parish council bringing action for damages alleging unlawful interference and deceit in respect of planning application – Whether claimant establishing elements of unlawful means conspiracy – Whether claimant establishing unlawful means in form of tort of deceit or offence under section 2 of Fraud Act 2006 – Claim dismissed
In December 2010, the district council authority granted planning permission for a mixed-use development, including dwellings, a care home and a sports pitch, on the site of a former convent school known as the Grange in Chalfont St Peter, Buckinghamshire. In November 2011, the council, following examination by an inspector, produced a core strategy that identified the convent school site as one of three strategic housing sites in their area.
The claimant parish council had objected to the planning application which effectively ruled out its proposals to relocate a local Church of England school to the site in order to resolve problems of overcrowding and inadequate facilities. The claimant’s statutory challenge to the core strategy under section 113 of the Planning and Compulsory Purchase Act 2004 and a judicial review of the grant of planning permission were dismissed: [2013] PLSCS 211; [2014] PLSCS 295.
The claimant then commenced proceedings alleging that the defendants, together with a former employee at the school, had conspired to provide false information to the local authority about the use to which part of the school site was put when the school was in operation. The claimant also relied on the tort of interference with its interest by unlawful means. The claim was issued just within the six-year limitation period.
Held: The claim was dismissed.
(1) The elements of the unlawful means conspiracy were: an agreement between one or more people to act unlawfully or to use unlawful means; those who had so agreed acted with the intention of causing damage to the claimant; and the claimant had to suffer damage. There was no requirement that the defendants’ predominant or main intention had to be to inflict damage on the claimant, but the defendants had to have some intention to harm the claimant.
In the present case, the unlawful means relied on was deceit. The claimant also relied on the offence under section 2 of the Fraud Act 2006. The elements of deceit were: representations had been made that were wrong; they were made knowing them to be wrong or the person making them was reckless as to whether the representation was true or false; the representation was made to the claimant intending that the claimant should act on it; and the claimant did in fact act upon the representation and suffered damage in consequence.
(2) The unlawful means tort was a tort based on a deliberate use of unlawful means. In its barest form the tort was committed when one person used unlawful means with the object and effect of causing damage to another. The unlawful means tort could be committed where A committed deceit upon B intending to damage C, and caused damage to C notwithstanding that B suffered no harm. The tort was one of intention. However, it was not necessary to prove that the defendants’ predominant purpose was to injure the claimant. It was sufficient that the unlawful act was in some way directed against the claimant or intended to harm him. On the evidence in the present case, there was no agreement as alleged by the claimant to use unlawful means, by making false statements dishonestly: Lonhro v Fayed [1990] 2 QB 479 and OBG Ltd v Allan [2008] 1 AC 1 followed.
(3) Even if a conspiracy as alleged had existed, the claimant had failed to establish unlawful means either in the form of the tort of deceit or in the form of an offence under section 2 of the Fraud Act 2006. The only representations made were made to the district council for the purposes of its planning committee meeting. The claimant took no action in reliance on those representations. It followed that the claimant had suffered no loss by reason of any reliance. In so far as it was the claimant’s case that the deceit comprised the unlawful means for the purposes of its pleaded unlawful means conspiracy, there was a complete mismatch between the ingredients of the unlawful means relied on and the basic factual matrix within which the claim was pleaded. As regards the alleged criminal offence at section 2 of the Fraud Act 2006, there was no evidence that a false statement was made dishonestly with the intention that either the maker of the statement or another should make a gain. The intent necessary for commission of the offence was not present.
(4) For all purposes, the unlawful means tort was to be kept within careful and in conservative bounds. Interference with non-economic interests was not sufficient to found the tort. The claimant had no relevant economic interest affected by the district council’s decision to grant planning permission. There was no authority for the proposition that a claimant’s interests protected by the unlawful means tort extended beyond economic interests and there was no reason in principle why that should be so. At best, the claimant had some sort of political or aspirational interest in the proposal, arising from its general opposition to the district council’s decision to identify the Grange site as a location for new-build housing. Extending the unlawful interference tort to such a situation would be unprincipled. It would of necessity recognise a new situation where a non-economic interest was protected, and logically, damages for non-financial loss would be recoverable. In the circumstances of this case, there was no reason why private law should protect the political aspirations of the claimant in that way. Even if the claimant’s asserted interest was considered on its own terms, on the facts of this case it did not exist. There was no policy decision by the claimant in respect to what was necessary to promote the social economic or environmental wellbeing of its area. It followed that the claim based on the unlawful means tort failed.
Matt Hutchings QC (instructed by Simons Muirhead & Burton LLP) appeared for the claimant; Philip Coppel QC and Asitha Ranatunga (instructed by Farrer & Co) appeared for the defendants.
Eileen O’Grady, barrister
