Suing your local planning authority for negligence – what are the chances?

3rd November 2022

Lengthy delays often occur by local planning authorities in progressing and determining planning applications; getting progress or even reasons for the delay can be equally slow. Likewise, errors by planning officers can happen. Planning decisions are quashed on judicial challenge and the application needs to go back for reconsideration, resulting in more delays, deals impacted and significant additional costs.

We’ve probably all thought it… can we bring a claim in negligence against the council for the losses incurred from the delays and mistakes of the council? Mr. Justice Leech has provided an answer in Primavera Associates Ltd v Hertsmere Borough Council EWHC [2022] 2685 (Ch).

The Primavera case

The complaint of Primavera may be an all too familiar story for some. The council had twice granted planning permission with each quashed by way of judicial review proceedings brought by a neighbouring landowner. The first decision was quashed by consent in April 2012, the second decision by consent in March 2014, and the third decision was guilty of unexplained delays between May 2014 to September 2016 when permission was finally granted again.

Primavera alleged negligence on the part of the council in terms of its failure to grant a lawful permission within a reasonable period. They claimed significant damages including increased development costs occasioned by the delay such as the additional costs caused by the introduction of CIL and the revision of policy relating to the required affordable housing provision.

So, can you sue a local planning authority for negligence?

The short answer, much to the relief of councils and their budgets, is ‘no’.  Mr. Justice Leech found that the council did not owe a duty of care to Primavera to exercise reasonable care in processing and determining the planning application.

Mr. Justice Leech found that the question of whether a duty of care arises against a local planning authority is to be determined in two parts. First, the Court has to decide whether the council assumed responsibility to Primavera to exercise reasonable care in carrying out its statutory function under the Planning Acts. Secondly, if the answer to the first part of the question is negative, the Court must go on and consider whether the council assumed such a responsibility from the way it behaved towards the Primavera on the particular of facts of this case.

On the first question, he found that the council didn’t assume responsibility to Primavera when carrying out its statutory functions. He gave the following reasons:

(a) there is clear authority that the Planning Acts were not passed for the benefit of individual applicants for planning permission but was intended to provide regulatory system for the benefit of the public. The purpose of the Acts was not to confer a private law benefit on the applicant but to prevent it from carrying out development except in accordance with statutory controls.

(b) a local planning authority must exercise functions in the best interests of the section of the public for which it is responsible (subject to review and revision by the Secretary of State). The interests of the local planning authority are, therefore, separate from the interests of the applicant and, indeed, may often conflict with those interests.

(c) in carrying out its statutory functions the council gave no assurance to which might form the basis for an assumption of responsibility to give rise to a private law duty in tort. The council has a duty to have regard to the provisions of the development plan and any other material considerations but, by assuming that duty, the council was not giving any assurance to the applicant that it would decide either application in a particular way or within a particular time. In either case, the remedy was to appeal.

(d) there is no statutory time limit within which a local planning authority is obliged to decide a planning application upon which an applicant is entitled to rely.

On the second question, he found that the council didn’t assume any responsibility by inference to the manner in which the council behaved towards Primavera. The council’s officers and its committee’s members did not give any commercial or legal advice to Primavera upon which Primavera relied in their application.

Are there any exceptions?

Mr. Justice Leech did however note that a duty of care can arise in a case where the local planning authority had created a danger of harm which would not otherwise have existed. A possible example could be a personal injury case where a local planning authority had required the construction of a foreseeably dangerous footpath or failed when granting the planning permission (or requiring the work) to impose a condition forbidding the opening of the footpath to the public until the sightlines had been cleared.

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