Application for planning permission — Incorrect information that permission would not cover intended use — Application for judicial review — Whether statement was amenable to judicial review — Whether claim for damages could be made — Application refused
The applicant was the priest in charge of St George’s, Elmwood Avenue, Hanworth. He applied to the respondent council for planning permission to erect a temporary building on church property, which he intended to use as a children’s day nursery. Planning permission was granted in February 1991 subject to conditions, inter alia, that the permission was to expire in February 1996 when the building was to be removed and the site restored to its previous condition; and that the building was to be used as a parish hall for various listed activities. The applicant believed that those conditions would enable him to run a day nursery.
Before the nursery could open it had to be registered under the Children Act 1989. The respondents received a formal application for registration on March 1 1995. The inspector in the respondents’ social services department told the applicant that the planning permission did not cover the proposed day nursery and fresh planning permission was needed. In April 1995 there was a meeting with the respondents’ planning officer where it was confirmed that fresh planning permission was needed; if the applicant disagreed, he could apply for a certificate of lawfulness of proposed use under section 192 of the Town and Country Planning Act 1990.
Thereafter, the council wrote to the applicant that, in the planning officer’s view, the 1991 temporary planning permission did allow the premises to be used for nursery purposes. In judicial review proceedings, the applicant contended that statements by the planning officer were decisions of the respondents susceptible to judicial review. Further, he made a claim for damages based on the fact that the council had behaved unreasonably, causing delay in the nursery’s opening and consequent financial loss.
Held The application was refused.
1. An expression of the planning officer’s view was not a decision amenable to judicial review. The applicant had had the opportunity to test the view under section 192 of the Town and Country Planning Act 1990.
2. A claim for damages must be based on a recognised principle of civil law. Unlawful conduct could not per se be equated to a right for damages.
3. There was a potential claim in negligent mistake. For negligence a duty of care must be established.
4. The courts were generally reluctant to enlarge upon the duty of public officials discharging public duties.
5. However, assuming a duty were to exist, it would only cover the making of negligent mistakes and not expressions of opinion. Opinion even if wrong or negligent was not actionable.
6. In addition it must be established that negligence caused loss. Two problems were established concerning causation: (1) the applicant had had the opportunity to test his proposition under section 192 of the Town and Country Planning Act and chose not to; (2) more importantly, requirements for registration under the Children Act 1989 were likely to have prevented the opening of the nursery. The court was unable to determine whether it was the negligence of the respondents which caused financial loss by delaying the nursery’s opening.
7. A second potential claim was in misfeasance in public office, but that needed proof that the person holding the public office was either affected by malice or made a decision he knew to be unlawful. The court was unable to say whether the planning officer or those acting under him were in either category.
The applicant appeared in person; Joseph Harper QC (instructed by the solicitor to Hounslow London Borough Council) appeared for the respondents.
