Judge rejects £1.7m claim brought by developer against local planning authority

A local developer has lost a High Court claim for negligence brought against Hertsmere Borough Council over planning decisions.

Developer Primevera had claimed damages of some £1.7m, but Mr Justice Leech held that the council did not owe Primavera any duty of care although it had been negligent in some respects.

Hertsmere twice granted planning permission, but these were quashed by judicial reviews brought by a neighbouring landowner, who had originally also wished to develop the Radlett site.

Permission was granted on a third application and Primavera alleged negligence by Hertsmere for failing to grant a lawful permission within a reasonable period.

Michael Walsh, of Tanfield Chambers, who defended the council, said: “The outcome in this case reiterates an important point of principle that planning authorities do not owe a duty to take care to an applicant for planning permission in the exercise of their statutory functions. 

“On the facts, the claim also failed on the basis that Hertsmere had assumed a duty to Primavera in the course of deciding the planning applications.”

Leech J said in his judgment that Andrew Down - who formed Primavera to redevelop the site - owned a house next to that of a Dr Bickerton, who had originally wished to redevelop both sites in partnership with the original owner of Mr Down’s property.

When that failed Dr Bickerton launched various judicial review proceedings that delayed the project leading to the repeated grants of planning consent over a long period.

Mr Down argued that these delays caused Primavera loss and the council had been negligent.

Leech J said no assumption of responsibility by Hertsmere towards Primavera could be inferred from the manner in which the council behaved.

“I am satisfied that no such inference can be drawn and no assumption of responsibility can be implied from the communications between the parties,” he said.

This was because officers and councillors did not give any commercial or legal advice to Primavera or its agent Fusion on which either relied on the first application and that Mr Down “took a calculated decision not to appeal against the non-determination of the second application in the knowledge that the position was uncertain and changing.

“I am satisfied that Primavera chose to take the risk of any delay or flaw in the statutory process rather than to appeal.”

He found that Fusion and Primavera “adopted a confrontational and heavy-handed approach” and letters sent to Hertsmere that “negated any reliance by Primavera upon the competence or efficiency of the council.”

Leech J said that if Hertsmere had owed Primavera a duty of care “then I find that it committed a breach of that duty and failed to exercise reasonable skill and care by determining the revised first application by reference to the planning policy at the date on which [it] was submitted and not by reference to the emerging planning policy at the date of the second decision.

"I also find that the council was negligent and responsible for a six-month delay in the progress of the second application.’

He dismissed all of the other allegations of negligence and lack of reasonable care.

Leech J said Primavera “adduced no evidence to prove” its purported losses and “even this is wrong I would not have awarded any more than £134,724.80 in damages”, a sum related to a dispute over contributions towards affordable housing.

Mark Smulian