Town and country planning – Permitted development – Certificate of proposed lawful use – Local authority advising defendant consultant that no planning permission need for proposed development – Defendant advising claimant – Local residents seeking judicial review of proposed development – Claimant settling proceedings by consent – Whether defendant being liable for professional negligence – Claim dismissed
The claimant was a drainage authority with statutory responsibility for water level management within a substantial area of the Fens bounded in part by the River Ouse. Much of the area was below sea level so that water, which included drained water, had to be pumped into rivers which could then take it to the sea. The defendant was a multi-discipline consultancy with engineers of different descriptions, architects and planners.
In March 2003, the defendant tendered for a contract to provide consultancy services for the claimant in respect of the upgrading of an old pumping station. It was commissioned to carry out a feasibility study and advised that a formal environmental statement would not be required for the proposed works on the basis of a screening opinion provided by the local authority. The defendant obtained confirmation of that opinion and carried out wide-ranging consultations without objection. The defendant wrote to the claimant, enclosing its correspondence with the local authority and advising that it would be open to the claimant to obtain a certificate of proposed lawful use if it wished to have a definitive answer as regards planning permission, outlining the time and cost of exercising that option.
The claimant accepted the defendant’s tender. The local authority subsequently indicated that a planning application would be required for a temporary access road. Two local residents objected and applied for judicial review of the claimant’s decision to proceed with the proposed works and the road. The claimant instructed the defendant to apply for planning permission which was granted in September 2006, prior to which it had settled the judicial review proceedings by undertaking not to rely on its permitted development rights under Part 14 of Schedule 2 to the Town and Country Planning (General Permitted Development Order) 1995 and to pay the applicants’ costs.
The claimant commenced proceedings against the defendant for damages, contending that the defendant had been negligent in advising that the new pumping station works were permitted development not requiring planning permission or that a certificate of proposed lawful use was not required.
Held: The claim was dismissed.
(1) The claimant had properly conceded that it could no longer pursue its allegation that no competent planner could properly have advised that the new works were permitted development. Different planners could well have formed the view that the new works involved permitted development not requiring planning permission. There was currently no recognised profession of planners, although many architects and surveyors and some engineers had expertise and experience in planning. There were experienced planners employed by local authorities and other firms, some of whom might not hold other professional qualifications but were extremely experienced in planning. Therefore, there was a range of qualifications and/or experience against which the court had to judge whether the defendant’s planners fell below the standard to be expected of reasonably careful planners.
(2) It was necessary to consider the interpretation of Schedule 2, Part 14, Class A of the Town and Country Planning (General Permitted Development) Order 1995 (“development by drainage bodies”) to consider how justified a view it was that the proposed new pumping station represented permitted development which did not require planning permission. Breaking down the wording in Part 14, the proposed work involved “development by a drainage body in, on or under any watercourse”, the watercourse being the main drain. The works of and in connection with the provision of the new pumping station could properly be described as “land drainage works” in that the pumping of water drained from low lying areas was part and parcel of the land drainage because there was little point draining the land but not allowing it to disperse or to be disposed of. On the evidence, there was little doubt that the proposed works were “required in connection with the improvement…of that watercourse or those works” because they were primarily concerned with improving the main drain as a watercourse. It was a matter of judgment on the part of the competent planner as to whether the client, in this case, should have been advised of the desirability of securing a certificate of lawful use. (3) The advantage of securing a certificate was that any complaints, primarily by way of judicial review, from objectors would have had to have been directed at the council because it would be difficult to say that the claimant had acted illegally or in any other way such as might justify a judicial review application. On the evidence, there had been no negligence on the part of the defendant. Professionals were liable for damage caused by their advice which no member of the profession who was reasonably well-informed and competent would have given. The judgment to be exercised by a consultant like the defendant had to be tempered by the non-negligent view that planning permission was not required and that the new pumping station was permitted development. The wording of Part 14 of Schedule 2 on its face strongly supported that view and it had to be legitimate for a planner to have that in mind when considering whether to advise the client to go for a certificate of lawful use. The defendant had exercised reasonable judgment in its confidence that the development was permitted. It properly advised that there would be little problem in the circumstances securing a retrospective planning permission if the council changed its mind. It had not been negligent in failing to anticipate that a local person who might have happened not to hear of the proposed development might seek to challenge the claimant’s stance by way of judicial review, in the light of the fact that there had been extensive local consultations which yielded no objections.
Andrew Nicol (instructed by Taylor Vinters LLP) appeared for the claimant; Elspeth Owens (instructed by Watson Burton LLP) appeared for the defendant.
Eileen O’Grady, barrister