We often get asked, when clients are faced with obstinate and, frankly, slow local authorities dealing with planning applications or s106 agreements, whether we can threaten legal action (other than planning appeals). Most of the time this is just letting off steam, but what is the answer?
A recent 140-page judgment in the case of Primavera v Hertsmere Borough Council (2022) considered if, and in what circumstances, a local planning authority might be liable for negligence for the way it dealt with a planning application.
In this case, successive applications were made for a small (10 units or below) residential development in Radlett, Hertfordshire. Permission was granted first in September 2012. This was judicially reviewed at the instigation of a neighbour due to the local authority’s failure to attach to the permission the access arrangements which the highways authority had approved. Following resubmission of amended plans in January 2014, the amended application was approved. This was again challenged by way of a judicial review on the basis that this application should have been assessed against a new development plan, rather than the one in place at the date of the original application.
The local authority essentially conceded in both judicial review cases.
This was compounded by a number of delays in considering the application, principally due to the carrying out of viability assessments in connection with an affordable housing payment to be made pursuant to a s106 agreement. In truth, it seems (to us) having read the judgment, that these delays were attributable to both the applicant and the local authority’s behaviour.
Negligence – The Law
In order to determine whether Hertsmere BC was liable for the negligent handling of the applications, the judge had to consider whether the Council owed the applicant (and other interested parties) a duty to take reasonable care in the handling of the applications, whether that duty had been breached and, if so, whether it had caused recoverable damage to the plaintiff.
The judge found that, in this case, there was no duty of care but did find that, were he wrong about that, then the Council would have breached it and the plaintiff would have suffered recoverable damages (although not as much as it had claimed).
Primavera – When does a duty of care arise?
In order to find a duty of care, the type of damage that is caused (here the additional costs of dealing with the application and additional costs as a result of changes in policy) had to be reasonably foreseeable and there needed to be a “relationship of proximity” between the parties. In addition, it has to be just and equitable to impose a duty of care.
In the context of public authorities carrying out their statutory functions, the mere carrying out of these functions does not imply an additional duty in the common law of negligence. It will depend on the nature of the statutory functions; in particular, were these functions intended to benefit the individual in question (in this case the applicant and other interested parties) or were the functions for the benefit of the public at large? If the latter, then the mere exercise of the functions does not create a common-law duty of care.
These functions are planned for the benefit of the public at large rather than the applicant (and the other interested parties).
In these circumstances, there can still be a duty of care if the local planning authority assumes a responsibility to the applicant additional to its statutory functions. So, for instance, if by saying so (unlikely) or by its conduct (less unlikely), a local authority assumes responsibility to process and consider a planning application in a particular way or with a particular time frame and fails to do so, then a finding that a duty of care exists may take place.
An interesting example was considered in a case where a local authority had made recommendations to a business as to how to achieve compliance with food regulations. This was above and beyond the exercise of its statutory functions so, in this case, a duty of care could be found to exist.
This could provide, in the right circumstances, a good analogy for some, so it is possible a duty of care can be found; note, thought, this is likely to be the only case vis-à-vis the applicant and not the wider community of interested parties, e.g., landowners, lenders, etc.
Primavera – Other Points to Note
The judge made a number of further observations which clearly influenced his approach to the case. First the delay in considering the application could have been resolved by the plaintiff appealing the failure to determine the application within the statutory timescale; this intervening event mitigated against finding a duty of care. Secondly, the applicant’s behaviour was “confrontational and heavy-handed”.
Finally, what would be reasonable in terms of the time period for considering an application will depend on the complexity of the application and when it is made, as well as the finite resources of the local authority.
Primavera – End Note
Suing a local authority for negligence in handling a planning application is likely to be fraught with difficulties. On the facts of this case, it was not clear that the authority in question delayed unconscionably (e.g., s106 agreements were signed within six months), and then there was the fact that the applicant was held to have behaved poorly. In the right circumstances, claims should be able to proceed, especially where the losses, e.g., due to changes in policy, are material.
See our other blog posts in this series:
If you wish to receive periodic updates on this or other topics related to UK real estate, subscribe to our Real Estate Insights mailing list.
For any other legal questions related to UK real estate, please get in touch with your usual Mayer Brown contact or one of the blog editors.