Property development — Planning permission — Conditional planning permission granted — Expiry date for planning permission — Refusal of council for scheme of work — Expiry of planning permission — Failure to obtain extension of deadline — Failure to appeal before date of expiry — Action against surveyor claiming damages in contract and negligence — Preliminary issue — Date when cause of action arose — Ascertained date on expiry of planning permission — Limitation issue in favour of defendants
In 1973, after two unsuccessful attempts, planning permission was obtained for permission to extract silica, stone and sand from land at Moel Findeg, Maeshafn, near Mold, Clwyd, on certain specified conditions. In May 1976, FGW, who were public works and civil engineering contractors, purchased the site with the benefit of that planning permission. In July 1976 FGW instructed surveyors, Cooke Lees & Bickerton, on their behalf in preparing and submitting to the county council a scheme of working for the approval of work to be carried out in compliance with the conditions laid down in the grant of planning permission. On July 20 1977 the surveyors submitted plans to the county council. After some delay, on October 25 1978 the planning subcommittee resolved that the scheme proposed by FGW should not be approved. The life of the planning permission expired on November 30 1978 and FGW’s solicitors wrote to the council suggesting that either the matter be submitted before the Secretary of State for the Environment or an appropriate alternative course of action be taken and an extension of the November 30 deadline be agreed. The council refused to ask the Secretary of State to settle the scheme and stated that if works were started before November 30 without a scheme having been settled, enforcement action might ensue. On November 21 FGW’s solicitors wrote to the Secretary of State asking for a determination of the scheme of work. On November 22 1978 the surveyors’ instructions were terminated. Between November 1978 and May 1983 work was commenced on the site and on December 2 1983 the council purported to serve a valid enforcement notice in relation to the works commenced on the basis that they were undertaken without planning permission. FGW appealed to the Secretary of State, who dismissed the appeals and upheld the notices. On November 28 1984 FGW brought an action against the surveyors and the solicitors claiming damages for alleged professional negligence both in contract and tort. FGW claimed that it had suffered diminution in the value of the site because of the loss of planning permission for mineral extraction. That was the result of the failure to apply to the minister for a determination and the failure to apply to the council for an extension of the life of the planning permission in good time. A preliminary issue arose as to the date on which FGW’s cause of action arose. Actions founded on simple contract or tort must be brought within six years from when the cause of action arose.
Held The cause of action arose on December 1 1977 for the purposes of limitation.
1. As between FGW and the surveyors, it was admitted that the surveyors owed FGW both a contractual and a tortious duty of care. The parties had concentrated on accrual of damage as the starting point for tortious liability. However, the court had to determine when the cause of action in contract arose. That was not only an inescapable duty, it was an essential starting point for any consideration as to when actual damage was caused. It might not matter greatly to the parties because whenever the breach of contract occurred any claim in contract must be statute barred, but it was essential to the process of arriving at the date of actual damage in tort to see when the breach was. The breach of contract and the breach of the duty of care happened at the same time.
2. Looking at the evidence, the breach of contractual duty occurred on December 1 1977, the latest date on which an appeal should have been made in order that the Secretary of State would have had time to determine the proposal by November 30 1978. Therefore, the cause of action in contract occurred on that date. At the same time the surveyors would have been in breach of their duty of care.
3. The next question was when the cause of action in tort accrued: that would be when actual damage was sustained by the plaintiff — whether he knew of the damage or not. The cases of Forster v Outred & Co [1982] 1 WLR 86; DW Moore & Co Ltd v Ferrier [1988] 1 WLR 267 and Bell v Peter Browne & Co [1988] 3 WLR 510 established or restated a clear line of authority that (a) the question was one of fact in each case; and (b) if at the time of the defendant’s negligence the plaintiff suffered some actual damage, it mattered not that at a later date events might occur which would increase that damage. The cause of action accrued at the outset at the time of negligence if actual damage was caused as opposed to presumed or assumed damage. In all those cases there was an easily ascertainable date for the breach and for damage. The fact that that date was more difficult to ascertain in the present case did not alter the general principle and the court’s duty was to ascertain the date if it could.
4. FGW had suffered actual damage by the latest at October 25 1978. It was plain to anyone with appropriate knowledge and skill, such as a valuer, that the planning permission was going to lapse or would be put at risk in legal proceedings and that the owner of the land would be open to action from the local planning authority. FGW’s interest in the land was encumbered by insecurity and that had inevitably an effect on the value of the interest and caused damage — although at that stage perhaps not immediately quantifiable. The tort was complete and the plaintiff could sue: see DW Moore & Co Ltd v Ferrier [1988] 1 WLR 267 at p280C).
5. In the present case there was unchallenged evidence that a prudent chartered surveyor should have acted by December 1 1977.
William Griffiths and Paul Stinchcombe (instructed by Clement Jones, of Holywell) appeared for the plaintiffs; Nicholas Nardecchia (instructed by Barlow Lyde & Gilbert) appeared for the defendant surveyors; and Richard Clegg QC (instructed by Weightman Rutherfords, of Liverpool) appeared for the defendant solicitors.
