LANE v NEW FOREST DISTRICT COUNCIL 2001

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Negligence

Local Planning Authorities may be liable for negligent planning decisions. Lane v New Forest District Council 2001 3 All ER 914

The Court of appeal has refused to strike out a claim against New Forest District Council (NFDC) as having no realistic prospect of success and held that where a Local Planning Authority ".....require or permit development which is forseeably dangerous it was far from clear... [they] ... would be immune from liability". 

There was no reason why the planning process would be adversely affected by making the planning authority potentially liable to an action in negligence where they failed to take a precaution (for example imposing conditions) to prevent damage or injury.

The facts of the case were that the Council required a footpath to be created as part of a permission granted in 1985.  That footpath was intended to link with a footpath on the far side of a road in a location where visibility for crossing that road was extremely limited.  It was accepted by all parties that additional sight lines were required but there was no condition preventing the opening of the footpath prior to the provision of these sight lines.  In fact the footpath was required to be constructed prior to the main development being commenced and was indeed opened before the sight lines were provided.  Subsequently the claimant was injured while crossing the road.

Although the District Judge at first instance upheld an application on behalf of the Council that there were no real prospects of succeeding in the claim, the Court of Appeal rejected that view entirely.  On appeal the Court commented that the claimant did not just have a realistic prospect of establishing a claim in negligence, but a "positively powerful case".  The judgement is all the more remarkable as the Council asserted it had immunity because it was exercising its statutory planning functions, but that argument was overruled.

Planning authorities will need to take careful note of this decision.  Although it does not decide the substantive issue it does pave the way for claims by third parties where they have suffer damage or injury as a result of poor planning decisions.  In particular planning authorities should be cautious when they decide to grant permission in the face of advice from the Highways Authority which highlights dangers.  It will be even more important to scrutinise conditions carefully to ensure they do not allow potential dangerous situations arising especially where development is phased.