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High Court confirms local authorities do not owe planning applicants a duty of care

Developers are unlikely to welcome the outcome of Primavera Associates Limited vs Hertsmere Borough Council, which confirmed that local authorities cannot be held liable for negligence in their handling of planning applications.

Facts of the case

Primavera sought to argue that Hertsmere Borough Council owed them a duty of care regarding two planning applications and that it had been negligent in its process and determination of both.

Although the first planning application was approved relatively quickly, it was quashed on judicial review, re-approved and once again quashed following a second judicial review, with a lengthy re-determination process.

The ongoing timeframe of this re-determination led Primavera to submit a second planning application on substantially the same terms, which faced similar obstacles.  Although the application was eventually approved, it was subject to almost two years of consultations, reviews and delays.

This prompted Primavera to bring proceedings on the basis that firstly, the Council had assumed a duty of care; secondly, that there was a sufficient relationship of proximity to justify the voluntary assumption of such a duty; and thirdly, that the Council had breached this duty of care.

The outcome

The case was determined in two parts.  Firstly, the Court had to decide whether the Council assumed a responsibility to Primavera to exercise reasonable care in carrying out its statutory planning functions, including determining planning applications.  When answering this, the Court decided:

  • The Council’s statutory functions were not for the benefit of individual planning applicants, but instead to provide a regulatory system for the benefit of the public as a whole. A local planning authority has to exercise its functions in the best interests of the section of the public for which it is responsible, making its interests separate from and potentially conflicting with those of applicants.
  • Although the Council was aware of Primavera’s interest in the planning application, this did not constitute an assumption of responsibility to exercise reasonable care. Further, Primavera’s interest was only relevant to the planning application in respect of the level of financial contributions and affordable housing, which was to be incorporated into a Section 106 agreement, rather than the planning permission.
  • Although Planning Policy Guidance states that best practice is to decide planning applications within 26 weeks, this is no more than guidance. Consequently, planning applicants cannot use these time limits to impose deadlines on Councils.

Secondly, the Court considered the specific facts of this case.  It found that the Council’s conduct did not give rise to an assumption of responsibility to exercise reasonable care, as the Council’s officers had not given commercial or legal advice which Primavera relied on in their planning application.

A cautionary reminder

The judgement confirms that local authorities do not owe a direct duty of care to the parties in the way a planning application is handled, but rather owe a general duty to the public.  It is highly unlikely that any claim based on negligence will be successful.  The main remedy for delay is to appeal (which itself can be a time consuming and costly process).  In some circumstances where appeal is not an option, a complaint can be submitted to the Local Government Ombudsman, but the remedies are limited.

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