Highway authority – Duty of care when responding to standard enquiry – Feasibility of intended development depending on whether access road maintainable at public expense – Intending purchaser proceeding in reliance on positive answer to search enquiry – Information inaccurate – Whether defendant council had assumed responsibility going beyond purchasers’ possible liability for road repairs – Whether council negligent in not consulting map which would have given accurate picture
A row of houses in Long Buckby, Northamptonshire, numbered 1-15 The Banks (the road), was separated from the road by a footpath (the slope), which was at a higher level than the road.
In early 1988 the claimant was considering the purchase of a site, which included No 1, with a view to carrying out a residential development. In terms of highway access, the feasibility of the development depended on the claimant’s ability to lower the slope at a particular point. This was an operation, which for all practical purposes, could not be carried out unless the slope was maintainable at the public expense.
In June 1988 the claimant’s solicitors submitted a standard form local search requisition, part of which was referred to the defendant council as “highways authority”.The property was described as “1 The Banks, Long Buckby and land nearby”. No information was given in the box in which the applicant could have given details of any “relevant roadway, footpaths and footways” additional to those specified in the address. A plan was attached which showed the site. The question put in the relevant enquiry was whether all the roadways, footpaths and footways referred to in the description of the property were maintainable at the public expense. The council’s reply was “The Banks – Yes; shared private access – No.” The claimant proceeded with his purchase, and in August 1989 obtained planning permission notwithstanding considerable local opposition, especially from the owners of No 3, The Banks .
In January 1990 the council wrote to the claimant informing him that the slope had not been adopted. This led to a protective writ being issued by the claimant in 1992. In the meantime, in April 1991, the claimant, having demolished No 1 and dug footings for the first of three blocks of flats, started work on the desired new access by lowering the slope. These and other works prompted the owners of No 3 to bring an action against the claimant for trespass, which was eventually disposed of in 1996 in the Court of Appeal, where damages were awarded in lieu of the injunction granted by the county court: see Gooden v Ketley and another [1996] EGCS 47.
Following the conclusion of that case, the claimant reactivated the 1992 proceedings that he had instituted against the council, and claimed that he would not have bought the site but for the answer on the official search. He also claimed that the resulting uncertainties had disabled him from completing the development. The council contended that it could not be held responsible for the loss complained of, and that, in any event, it had not been negligent.
Before ruling on those issues, the judge found that the claimant would not have bought the site had he received an accurate reply to his enquiry.
Held: Judgment was given for the council
1. Applying the words of Lord Bridge in Caparo v Dickman [1990] 2 AC 605 at p627, it was never sufficient to ask simply whether A owes B a duty of care. It was always necessary to determine the scope of the duty by reference to the kind of damage “from which A must take care to save B harmless”. In a case like the present, it had to be shown that the representor knew, or reasonably should have foreseen, the nature of the transaction which the representee had in mind and the purpose for which he might rely on the information: see per Auld LJ in Gold Coin Joaillers v United Bank of Kuwait [1997] PNLR 217 at p225. Given that the information in question was ordinarily sought by intending purchasers in order to assess the likelihood of incurring liability to contribute (as frontagers) to road repairs, the actionable loss arising from an inaccurate reply would normally be limited accordingly. On the facts of the present case nothing had occurred to make the council aware, actually or inferentially, that the answer was required for the purpose of deciding whether a new access could be created for the purpose of the development. That purpose was so far outside the normal purpose of the relevant enquiry as to require a clear communication of the purpose before the council could be taken to have assumed a duty in relation to it.
2. The inaccuracy of the information was not, in any event, attributable to negligence on the part of the council, which was merely required to take reasonable care to give an accurate answer on the information available to it . Although the council had used maps of a scale too small to suggest a distinction between the road and the slope, those maps were sufficient to satisfy the council’s statutory obligation to maintain a “highway register”. For the reasons already given, no duty had arisen to consult a map (otherwise available) which would have made the necessary distinction. The only roadway referred to in the requisition was The Banks. It would have been otherwise if separate mention had been made of the slope. It was not the task of the council to identify what was included in The Banks. The uncertainty complained of had stemmed not from what the council had said about the Banks, but from what was comprised in the expression, “The Banks”.
Andrew De La Rosa (instructed by Bower & Bailey, of Banbury) appeared for the claimant; Thomas Jefferies (instructed by Shoosmiths, of Northampton) appeared for the respondents.
Alan Cooklin, barrister