Middle Level Commissioners v Atkins Ltd [2012] EWHC 2884 (TCC)

Case No HT-11-513[2012] EWHC 2884 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24 th October 2012
Before
MR JUSTICE AKENHEAD
Between
MIDDLE LEVEL COMMISSIONERSClaimantATKINS LIMITEDDefendant
Andrew Nicol (instructed by Taylor Vinters) for ClaimantElspeth Owens (instructed by Watson Burton LLP) for DefendantHearing Hearing dates: 25-26 September
JUDGMENT
[1]In these proceedings, the Middle Level Commissioners (“MLC”) pursue a claim for professional negligence against Atkins Limited (“Atkins”) in relation to advice about planning matters in connection with the design and construction of the St Germans Pumping station, a water pumping station near the village of Wiggenhall St Germans in Norfolk.[2]MLC is a long-standing drainage authority which has statutory responsibility for water level management within what is called the Middle Level which comprises a substantial area of the Fens, mostly within Cambridgeshire but stretching also into Norfolk towards King's Lynn. This area is substantial and in part is bounded by the River Ouse. Much of the area for which MLC is responsible is below sea level and therefore water which includes drained water has to be pumped into rivers which can then take it to the sea. Atkins is part of the well-known engineering consultancy formerly known as WS Atkins. By the time of the events to which this case relates, Atkins was a multi-discipline consultancy with engineers of different descriptions, architects and planners. The History[3]Feeding into the Ouse, within the Norfolk Part of the Middle Levels was the Main Drain (a substantial watercourse) on which in about 1934 a substantial pumping station had been constructed near Wiggenhall St Germans. By 2002 or 2003, it was felt by MLC that the old pumping station was reaching the end of its useful life and that proposals were required to improve the pumping facilities. Having prequalified to tender, Atkins sent on 20 March 2003 to MLC a tender for consultancy services in relation to these improvements. What was anticipated at this stage was a modernisation of the pumping facility but also the production of an option study which would set out what the best options were, particularly with a view to securing DEFRA grant aid. In the option study, Atkins indicated that because "a number of options will undoubtedly involve the need for planning permission…we will involve one of our planning specialists to investigate planning issues and advise accordingly."[4]By July 2003, Atkins had been commissioned by MLC to undertake a feasibility or option study in relation to the upgrading of the pumping station and it first approached the relevant planning authority, Kings Lynn and West Norfolk Borough Council ("the Council") in July 2003. In a letter dated 22 July 2003, Atkins wrote to the Council indicating that it was considering not only the option of upgrading the existing pumping station but also the provision of a new pumping station which would involve the decommissioning of the old station. It attached a plan of the area showing the existing station as well as identifying seven possible locations for a new station. It asked the Council for comments. Those comments were returned on 8 September 2003 and they were not unfavourable, for instance advising that the Local Plan allowed for such infrastructure works.[5]On 14 January 2004, Atkins wrote to the Council seeking a "screening opinion" in relation to the preferred option which involved the construction of a new pumping station on the Middle Level Main Drain some 200 metres downstream of the existing station towards the River Ouse. The opinion sought was as to whether this work was an Environmental Impact Assessment ("EIA") development for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. Such a screening opinion would serve as an indication from the Council as to whether any planning application for the proposed development would need to be accompanied by an EIA. This request was accompanied by a detailed Consultation Document, an environmental brief and a consultation document which set out much of the detail. Atkins followed this up with a letter dated 5 March 2004 to the Council saying:
“Schedule 2 Part 14 Class A of the Town and Country Planning (General Permitted Development) Order does allow certain development by drainage bodies to be carried out as "permitted development" i.e. without the need for a formal planning application. The wording of this Class allows: "Development by a drainage body in, on or under any watercourse or land drainage works and required in connection with the improvement, maintenance or repair of that watercourse or those works". It would appear therefore that the proposed development may well fall within the terms of this Class of permitted development and that no formal planning application is required. I would be grateful if you could confirm this in writing to us at the same time as the screening opinion is given…”
[6]The Council’s Head of Planning wrote back on 8 March 2004 saying:
“On the basis of the information supplied, it would appear that the proposed development falls within the provisions of Schedule 2 Part 14 Class A of the Town and Country Planning (General Permitted Development) Order 1995. The scheme has also been considered in relation to the Environmental Impact Assessment Regulation and it appears that it does not constitute development that requires Environmental Impact Assessment.”
[7]On 19 March 2004 Atkins wrote to Mr Phillips the chief engineer of MLC sending a copy of this letter saying:
“… Consequently a formal Environmental Statement is not required under the Town and Country (Environmental Impact Assessment) Regulations 1999. The scheme will thus be progressed as permitted development and the Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999 apply. Under these regulations it is the drainage authority (i.e. the Middle Level Commissioners) that is required to determine whether the improvement works will have a significant impact on the environment…and, if so, to prepare and publish an Environmental Statement… Given the scale and location of the proposed works at St Germans, however, it is our view that a formal Environmental Statement is required, under the land drainage improvement works legislation, and this is what we have been working towards…”
[8]On 26 March 2004, Mr Phillips wrote to Atkins noting that the Council considered that the new pumping station would be "a permitted development" under the 1995 Statutory Instrument and accepting that an Environmental Statement should be prepared.[9]On 31 March 2004 Atkins responded to the Council’s letter of 8 March 2004 stating:
“We understand from this that formal planning permission is not required. As we expect the development to commence on site within a year we would be grateful if you would confirm if there are any other formal, or informal, approvals that are required that fall under your authority.”
[10]In 2004 and, possibly, going into 2005, Atkins carried out wide-ranging consultations not only with local authorities but also the local parish councils as well as interested bodies, albeit that it did not as such canvas opinions from each and every local person, for instance by some sort of mail drop. Of the 26 bodies consulted with, there was not one material objection. This is in a way not surprising because the proposed new pumping station would represent a substantial improvement on the old one and would provide a greater relief against flooding in the future.[11]The Council responded on 28 May 2004 to Atkins’ letter of 31 March 2004 confirming that they were not aware of any further approvals required from them, also saying:
"as stated in my previous correspondence, the proposal constitutes permitted development."
[12]On 2 June 2004, Mr Sheppard who was the project manager for Atkins sent this correspondence of March and May 2004 to Mr Phillips. Atkins continued work on the project. By 18 November 2004, Atkins had secured the Environment Agency consent for the new pumping station scheme.[13]In October and November 2004, Atkins and MLC agreed in principle Atkins’ appointment for the design and implementation stages of the project to which I will return later in this judgement. The formal acceptance was contained in a letter dated 23 March 2005 from Mr Phillips to Mr Sheppard.[14]At a "design workshop" meeting on 3 December 2004 Mr Sheppard referred to the letter received from the Council stating: "that currently, it would appear that the scheme falls within the provisions of the General Permitted Development Order".[15]On 26 January 2005, Atkins wrote to the Council again seeking further confirmation that no further planning approvals were required from them for the project. The Council again responded on 9 February 2005 confirming that they were “not aware of any other formal or informal approvals that are required to be sought in connection with the above development”.[16]On 25 February 2005 Mr Sheppard (who was an engineer and not a planner) wrote in terms drafted by planners within Atkins to Mr Phillips at MLC in the following:
“Our Architects and planners have looked again at the need or otherwise for planning permission for the proposed St Germans Pumping Station. We enclosed [sic] correspondence between Atkins and two separate Planning Officers at [the Council] which, when read together, effectively confirms that planning permission is not required for the proposed improvement works to the pumping station… Should you wish to obtain a definitive answer to this in legal terms a course of action open to us would be to apply to the Council for a ‘Certificate of Proposed Lawful Use’ under the Town & Country Planning Act 1990. If you do go down this route to guard against any future legal challenge, the time/cost should be borne in mind: 5-8 weeks target for determination by the Council; up to approximately £5k which is half the normal planning application fee. This process would not involve any consultation on the Council’s part. As we are confident the works constitute “permitted development”…it is not necessary to go down this route and our advise [sic] is therefore to leave things as they are. In terms of risk (not submitting a Lawful Use certificate) if at a later date, the Council took the view that planning permission was required, in the first instance, it would be most likely to request that a retrospective planning application was submitted. We could seek to challenge this on the basis of our own interpretation of the GPDO and previous informal advice given by the Council. The Council would struggle to request that an EIA accompanied such an application, since its formal screening opinion (letter from LPA dated 8 March 2004) advises that an EIA is not required. Also it should be remembered that we have produced an environmental statement and it would not take much effort to complete an EIA… We trust the above is to your satisfaction and suggest we discuss this in the near future before coming to a firm conclusion as to whether further action is necessary or not.”
[17]On 4 March 2005, Mr Phillips of MLC responded stating:
“As we discussed yesterday, I am surprised at the conclusions of both the Borough Council and your own architects and planners, since, in my view the construction of the new pumping station could only possibly be construed as an improvement work only if one considers it an improvement of our existing drainage system, ie - our system being the work. However, the Council have formed a clear opinion, and have confirmed it in writing. Therefore, I agree with your recommendation to leave things as they are and shall be pleased if you would proceed on that basis.”
[18]Upon receipt of that letter, Mr Sheppard of Atkins telephoned Mr Phillips of MLC to discuss the issue. Mr Sheppard’s note of the conversation records that both men “agreed it was open to interpretation”. However, Mr Phillips accepted that this was the advice given by the Council and indicated that he was happy to proceed on that basis. That decision is also recorded in the Minutes of Meeting dated 16 March 2005: “[Mr Sheppard] advised that all measures had been taken to ensure that planning approval was not required. Letters from the Head of Planning for Norfolk Borough Council are on file. Atkins has written to MLC and MLC, although surprised, have concurred that no further action is required to the planning approval."[19]The Norfolk County Council also confirmed on 14 June 2005 by letter to Atkins that planning permission was not required as the development was authorised by the Town and Country Planning (General Permitted Development) Order 1995.[20]A final decision had not yet been taken as to the location of the temporary access road for the works. Various options were discussed at a Design Workshop in mid-May 2005. A decision on the location of the access road was eventually taken in around December 2005, following which the Council advised that a planning application would be required for the temporary access road.The planning application for the temporary access road was submitted on 18 January 2006. As part of that planning application, it was necessary to inform local residents of the proposals for the temporary access road. Atkins notified local residents including the occupier of St Mary's Hall, Church Road, St Germans the boundary of whose property the proposed temporary access road would pass. This resulted in an objection to the planning application by the residents of St Mary’s Hall, Mr and Mrs Peacock, who, so far as can be ascertained, had not been living at the premises in question earlier but had been engaged in substantial refurbishment of them. Mr Thomas of MLC, who was due to succeed Mr Phillips as Chief Engineer, went with Mr Sheppard of Atkins to meet Mr and Mrs Peacock in late January 2006. It is clear from the notes of that meeting taken by Mr Peacock that his concentration and primary objection was to the proposed temporary access road and there was a discussion about possible measures to alleviate the impact on Mr and Mrs Peacock’s use and enjoyment of the property. On 2 March 2006, Atkins sent to Mr Thomas the correspondence to and from the Council in 2004 and 2005 which confirmed that the new pumping station comprised a Permitted Development which did not require planning permission.[21]Mr and Mrs Peacock instructed local solicitors, Ward Gethin, who wrote a letter to MLC on 22 February 2006 seeking specific information about the proposed scheme and in particular as to details of the determination by MLC as to why the proposed works had deemed planning permission as a permitted development. The letter indicated that advice had been sought from Counsel and that proceedings might ensue. Mr and Mrs Peacock also indicated some days later that they intended to issue judicial review proceedings against MLC in respect of their decision to proceed with the proposed works (and not just the access road). As a result of that threat, MLC took the view that the prudent approach, to avoid delay to the project, would be to make an application for planning permission for the works and, on 9 March 2006, instructed Atkins to do so. That application was eventually submitted on 5 July 2006 as a consolidated application for planning permission for both the works and the temporary access road) and planning permission was granted by the Council in September 2006. There is some evidence that the Council officers continued to believe that planning permission was not required and indeed that, if a planning application had been submitted in 2004 or 2005, it would have been declined on the basis that the development had deemed planning permission; this is evidenced by the letter dated 11 May 2006 from the Chief Executive of MLC to its solicitors (first paragraph second page).[22]In the meantime, Mr and Mrs Peacock had instructed new solicitors, Linklaters, and issued judicial review proceedings against MLC on 24 March 2006 alleging that “the decision of [MLC] to proceed with the proposed Scheme is unlawful” on four grounds:
“1. The Scheme does not benefit from deemed planning permission, whether under Part 14A of Schedule 2 to the Town and Country Planning (General Permitted Development Order) 1995 (“GPDO”) or otherwise, and an express grant of planning permission is required; 2. Even if the Scheme does benefit from permitted development rights under class 14 of the GPDO (which is not accepted) a formal decision pursuant to regulation 12 of the [Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999 (“the 1999 Regulations”)] to proceed with the Scheme is required and none has been taken by the Commissioners; 3. Even if the Scheme does benefit from permitted development rights under class 14 of the GPDO (which is not accepted) any decision, pursuant to regulation 12 of the 1999 Regulations, to proceed with the Scheme was unlawful because the access road now proposed, which is clearly part of the Scheme, was not a matter which was the subject of environmental assessment in the ES; and 4. The decision of the Defendant to proceed with the Scheme was in any event taken in the absence of proper consideration of impact of the Scheme upon the Claimants’ home, a Grade II* listed building.”
[23]This had been preceded by Linklaters implementing the Pre-Action Protocol Process for Judicial Review on 7 March 2006 to which MLC responded on 15 March 2006 setting out the history as to the proposals for the new pumping station; it referred to the Council’s expressed view that this was a permitted development and planning permission was not required saying that it "therefore acted in reliance on the advice provided by the Borough Council in deciding to proceed with the work" and that there was no formal determination to that effect by MLC. The letter referred to the facts that the scheme was given very wide publicity through television, radio and press coverage and through the local parish councils and that there were no objections or contrary representations made.[24]MLC took advice from Counsel and Taylor Vinters in relation to the judicial review claim. Internally they acknowledged that MLC had not complied with certain formal requirements in terms of fully publishing by way of advertisement what their intentions would be. The evidence put before the Court as to what Counsel and the solicitors actually advised MLC is somewhat unsatisfactory. For instance, there was not one letter or memorandum from the solicitors to their client advising on the merits of the first complaint in the Judicial Review proceedings. There was however a final note of a conference with specialist Counsel, David Lamming, which was attended by MLC and Mr Sheppard and the solicitors; the note is full and it does not appear that Counsel actually advised on whether the works were permitted development, although he did apparently say it "would be a matter of fact and degree". It is clear however that there was a perceived difficulty in relation to a second ground albeit that this went to procedural formality rather than anything else.[25]On 22 August 2006, Taylor Vinters wrote to Linklaters agreeing that MLC would provide an undertaking not to rely on the permitted development rights under Part 14 of Schedule 2 to the GPDO, and would pay the Peacocks’ costs of the judicial review proceedings (which were subsequently agreed at £37,500). The agreement was recorded in a Consent Order approved by the Court on 7 November 2006. The Contract[26]There is no real issue between the parties that there was a contract between the parties. It was comprised in an initial tender by Atkins dated 20 March 2003, supplemented by a detailed proposal in respect of services in its letter dated 25 October 2004, clarifications made in writing on 2 November 2004 and 15 March 2005 and an acceptance by letter from MLC on 23 March 2005. Again there is no issue that planning services and advice was required to be given by Atkins as part of their retainer. It is also clear that the services to be provided comprised architectural, engineering, project management, geotechnical, environmental, pump specialist and planning services and that therefore this was truly a multi-discipline services contract. The Proceedings[27]There is no comprehensible explanation which has been put before the court as to why MLC delayed proceedings until their issue in February 2011 other than that it waited until the project was substantially completed. The claim is for breach of contract and negligence in effect that Atkins was negligent in two respects as set out in Paragraph 11 of the Particulars of Claim: “The Defendant acted in breach of the terms of its retainer and/or negligently in advising that planning permission was not required for the redevelopment of the Site. No competent consultant in the Defendant’s position could have advised that the proposed works would constitute "permitted development" as defined by the relevant legislation and/or a competent and skilful consultant in the Defendant’s position would not have advised the Claimant that it was unnecessary to obtain a Certificate of Proposed Lawful Use (as the Defendant did)." In simple terms therefore only two allegations of negligence are made, namely that Defendant should not have advised that the new pumping station works were permitted development not requiring planning permission or that such a Certificate was not required. The sum claimed is modest and quantum was agreed at just under £60,000.[28]The Defence essentially asserts that planning permission was not required for the new pumping station because it was in law and in fact a permitted development, that in any event it was not negligent so to have advised and that it was not negligent not to recommend the seeking of the Certificate of Lawful Development. The Evidence[29]All witnesses both factual and expert were honest. Mr Smith was the Clerk and Chief Executive of MLC, having held that post for 12 years prior to which he was the Clerk to the MLC. He was a practising solicitor and was involved primarily in a consultative basis given that Mr Phillips was principally involved with Atkins and the development itself. He gave evidence about the chronology of events, his participation and consideration of the advice received from the Council and Atkins about the need for planning permission and as to causation matters. Mr Thomas, who succeeded Mr Phillips as the Chief Engineer gave little evidence of relevance, which was not his fault; he only took over from Mr Phillips in February 2006 by which time the problems raised by the Peacocks were already rearing their head and he had not been actively involved before then. Ms Richardson a partner of Taylor Vinters and a specialist planning lawyer gave evidence about her and her firm's involvement; it is of interest that her witness statement did not identify that it was either her, her firm’s or Counsel’s advice that the proposed works were not permitted development and did require planning permission; she was not convincing when she gave evidence (albeit honestly) that she thought she had advised to this effect but that was undermined by the fact that there was not one hint of that advice in anything written formally or informally by her firm to that effect. Mr Sheppard was the principal engineer who worked on the project and was involved at all material stages; he was palpably honest but he accepted that he was not a planner and had, broadly, passed on and adopted the advice provided by planners within Atkins.[30]It is suggested that the Court should draw some negative inference from the fact that the planners within Atkins were not called as witnesses. I decline to do so because it is fairly clear that what they advised was actually and effectively passed on to MLC.[31]The parties each called a planning expert. MLC’s expert was Mr Henry who was open in the giving of his evidence both orally and in writing; he clearly tried to assist the court. Mr Shrubsall was Atkins’ expert who, although criticised in closing by MLC’s Counsel, I felt gave clear and helpful evidence. The reality is that that there was not an enormous difference between the experts with the difference being more on emphasis than on anything else. Discussion[32]In the light of concessions made by Mr Henry in evidence, MLC through its Counsel, properly, conceded that it could no longer pursue its first allegation of negligence, namely that no competent planner could properly have put forward the view that the new works were permitted development, not requiring planning permission. This was because he had to accept that different planners could well have formed the view that the new works involved permitted development not requiring planning permission.[33]As was accepted in argument, there is currently no recognised profession of planners as such, although it is clear that many planners are qualified professionals and very experienced in planning matters. For instance, many architects and surveyors have expertise and experience in planning, as do some engineers. However, there are experienced planners employed by local authorities and other firms, some (and perhaps many) of whom may not hold other professional qualifications but are extremely experienced in planning. This therefore is a case in which one must recognise that there is a range of qualifications and/or experience against which the Court must seek to judge whether the Atkins planners fell below the standard to be expected of reasonably careful planners.[34]Although it has been accepted that negligence has not been established against Atkins in respect of their forming the view and their endorsement of the Council’s view that the proposed new pumping station represented permitted development which did not require planning permission, it is necessary to consider the interpretation of Schedule 2 Part 14 Class A of the Town and Country Planning (General Permitted Development) Order 1995 to consider how justified a view it was. Paragraph 3(1) of the Order states that: "planning permission is hereby granted for the classes of development described as permitted development in Schedule 2”. Paragraph 3(2) makes it clear that any permission so granted is "subject to any relevant exception, limitation or condition specified in Schedule 2”. It is of some interest that a number of the different types of development permitted in Schedule 2 have limitations and exceptions.[35]However, Part 14 does not have any exception or limitation, it is headed "Development by Drainage Bodies" and it goes on:
"Class A Permitted development A. Development by a drainage body in, on or under any watercourse or any land drainage works and required in connection with the improvement, maintenance or repair of that watercourse or those works. Interpretation of Class A A.1. For the purposes of Class A- “ drainage body" has the same meaning as in section 72 (1) of the Land Drainage Act 1991 (33) (interpretation) other than the National Rivers Authority."
MLC is and was a drainage body for the purposes of that Act.[36]The Land Drainage Act 1991 (Section 72) defines "watercourse" as including "all rivers and streams and all ditches, drains, cuts, culverts, dikes, sluices, sewers (other than public sewers within the meaning of the Water Industry Act 1991) and passages, through which water flows”. Section 14 (2) sets out certain powers or rights of a drainage body:
“(2) The powers mentioned in subsection (1) above are the powers, otherwise than in connection with a main river or the banks of such a river— (a) to maintain existing works, that is to say, to cleanse, repair or otherwise maintain in a due state of efficiency any existing watercourse or drainage work; (b) to improve any existing works, that is to say, to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or raise, widen or otherwise improve any existing drainage work; (c) to construct new works, that is to say, to make any new watercourse or drainage work or erect any machinery or do any other act (other than an act referred to in paragraph (a) or (b) above) required for the drainage of any land.”
[37]There appears to be little if any authority as to the interpretation of the General Permitted Development Order in relation to organisations such as MLC. Some assistance may be provided, tangentially, by the definition of "improvement works" in the Environmental Impact Assessment (Land Drainage Improvement Works) Regulations 1999:
“”improvement works" means works which are- (a) the subject of a project to deepen, widen, straighten or otherwise improve any existing watercourse or remove or alter mill dams, weirs or other obstructions to watercourses, or raise, widen or otherwise improve any existing drainage work; and (b) permitted development by virtue of Part 14 or 15 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995).”
The reference back to the General Permitted Development Order makes it somewhat circular but the first part of the definition does provide some assistance in the context of land drainage.[38]There can be little doubt, on the evidence, that the proposed replacement of the old pumping station and the provision of a new pumping station several hundred yards away did involve an improvement at least in general terms of the land drainage in the area in that the new works would provide a substantially better system and facility to pump larger quantities of water than had existed as at the 2000 to 2006 period.[39]Breaking down the wording in Part 14 of Schedule 2 of the General Permitted Development Order, the proposed work obviously did involve “development by a drainage body in, on or under any watercourse”, the watercourse being the Main Drain. The works of and in connection with the provision of the new pumping station can properly be described as “land drainage works” in that the pumping of water drained from low lying areas is part and parcel of the land drainage because there is little point draining the land but not allowing it to disperse or to be disposed of. Again, there is, on the evidence little doubt that the proposed works were “required in connection with the improvement…of that watercourse or those works” because they were primarily concerned with improving the Main Drain as a watercourse. There is nothing in Part 14 which limits its ambit only to relatively minor (as opposed to major) works, to works of improvement on existing installations (as opposed to improvement by way of replacement) or to works which cost less than a few million pounds (as opposed to £34 million).[40]Although it is not absolutely essential in this professional negligence claim for the Court finally to decide whether or not these works fell within Part 14 of the General Development Order, there is at the very least a very strong case for saying that they did.[41]The Court is left with only one remaining complaint of professional negligence, namely that Atkins should nonetheless have advised MLC to secure a Certificate of Lawful Use. On this issue the two experts apparently parted company. However, they both accepted ultimately that it would be a matter of judgement on the part of the competent planner as to whether the client, in this case, should have been advised of the desirability of securing such a certificate. The advantage of securing such a certificate is that any complaints, primarily by way of judicial review, from objectors would have had to have been directed at the Council because it would be difficult to say that MLC has acted illegally or in any other way such as might justify a judicial review application.[42]Mr Henry’s evidence however was very much tempered and conditioned by his view as to whether Part 14 of the General Permitted Development Order actually covered the works in this case. He says that there was reasonable doubt at least as to whether the proposed development constituted permitted development. He took the view that the new pumping station was just that, namely new, it was to be constructed within a sensitive and prominent location, the works were substantial on any account and the cost was to be something over £34 million. He says that because it was not "straightforwardly apparent on the face of Part 14 [of the General Permitted Development Order] whether or not the proposed development fell squarely within its terms" and it was not a “prudent course of action” for Atkins not to recommend the obtaining of the Certificate of Lawful Use; that is what he would have done as the "preferred and recommended course of action" because this "would have provided the greater level of comfort sought by the client to help overcome clearly expressed doubts and have provided a greater degree of certainty to the consultant". But when he gave evidence however, he was rather more circumspect. He accepted that it was a "delicate balancing act which a professional needs to make"; he said that it was a matter of risk and it came down to how individual planners might react; it was ultimately a matter of judgement he said. He said that he was surprised or very surprised that the Certificate of Lawful Use route was not taken up.[43]Mr Shrubsall however was strongly of the view that it would be wrong to criticise a planner for not advising clients to go down the route of a Certificate of Lawful Use. He also accepted in effect than that there was a judgement to be made in this regard, based on all the circumstances.[44]I have formed a very clear view in the light of the evidence that there was no negligence here on the part of Atkins. In doing so I have borne in mind the law and practice, for instance as enunciated by Lord Diplock in Saif Ali v Sidney Mitchell & Co [1989] AC 198 at page 218D to the effect that professionals are liable for “damage caused by their advice…which no member of the profession who was reasonably well-informed and competent would have given". My reasons are as follows:(a) On balance I prefer the evidence of Mr Shrubsall as more logical and obvious. I also distinctly detected an understandable reluctance on the part of Mr Henry to commit himself ultimately to any unqualified criticism of Atkins.(b) The judgment to be exercised by a consultant like Atkins must be tempered by the non-negligent view that planning permission was not required and that the new pumping station was permitted development. The wording of Part 14 of Schedule 2 on its face strongly supports this view and it must be legitimate for a planner to have that in mind when considering whether to advise the client, nonetheless, to go for a Certificate of Lawful Use. I do not doubt that some planners may (for some of the reasons adumbrated by Mr Henry) have taken a more pessimistic view than Atkins took in this regard but it is difficult to say that Atkins was negligent in having and acting on such a firm view.(c) One must also bear in mind two additional important factors which it would be legitimate for planners in Atkins’ position to take into account (as it obviously did). The first is that the Council, otherwise responsible for dispensing planning permissions, was itself strongly of the view that planning permission was not required, that the new pumping station represented permitted development and that it was prepared on more than one occasion at the highest level to put that view in writing. Secondly, there had been an extensive consultation throughout the local and even wider areas and there had not been one material objection. It does seem to me that it would be legitimate for consultants like Atkins to draw comfort from that and, whilst there would be no guarantee that someone might not raise some objections at a later stage, the chances of that would properly have been considered as relatively remote given the wide consultations which had already taken place. There is another related factor, which is that the Council might have been reluctant to grant a Certificate of Lawful Use in circumstances in which the consultations had thrown up no objection and that the Council itself through its Chief Planning Officer was already of the view that no planning permission was required; put another way, the view might well have been taken by the Council and by Atkins itself that the issue of a Certificate of Lawful Use was a pointless thing to do or seek.(d) Atkins properly raised with MLC in February 2005 the option of seeking a Certificate of Lawful Use and the time and money ramifications thereof and openly accepted that the issue of whether the new pumping station was permitted development was a matter for interpretation. It exercised reasonable judgement however in its confidence that the development was permitted. It properly advised that there would be little problem in the circumstances securing a retrospective planning permission if the Council changed its mind. What it did not do was to anticipate that a local person who may have happened not to hear of the proposed development might seek to challenge MLC’s stance on this issue by way of judicial review. I do not consider that this was negligent in the light of the fact that there had been extensive, amongst others, local consultations which yielded no objections. It was not negligent for Atkins to have failed to foresee the type of challenge later put forward by the Peacocks.[45]It follows from the above that MLC’s claim fails on the grounds that it has failed to establish any material breach of duty.[46]There were issues on causation, namely as to whether any established breach of duty caused MLC to suffer the loss which it did, namely the legal costs of the Peacocks’ judicial review proceedings, their own costs of and occasioned by defending them and some of the fees charged by Atkins in relation thereto and to the renewed planning application. An issue was raised to the effect that MLC did not rely on the advice of Atkins. I would have accepted the evidence of Mr Smith that in effect MLC did rely on the advice of Atkins, albeit it is clear also that it relied on the stance taken by the Council. There can be little doubt that, if Atkins had advised MLC to seek a Certificate of Lawful Use, MLC would have acted on that advice particularly since it was itself sceptical about the Council’s position. There was a substantial further issue between the parties as to whether MLC settled the judicial review proceedings because it believed that it would lose on the issue as to whether the new pumping station represented permitted development or on some other ground. On that issue, I would have been in favour of Atkins because I have formed the view that there was a strong case that it was permitted development and in those circumstances Atkins had not been acting unlawfully, let alone unreasonably. The real reason that MLC settled was because it wanted to avoid the risk and aggravation of the proceedings; that is why, as soon as the risk of judicial review proceedings surfaced, it had decided to seek a full planning permission in any event. To have fought the case on the basis that the development was permitted would have required extensive evidence of fact and possibly expert evidence to show that as a matter of fact and degree (the test identified by its own Counsel) the development fell within the permitted parameters and that would have taken substantial time and involve substantial cost. There was an embarrassment for MLC in its non-compliance with the advertisement requirements but that was not the fault of Atkins. I did not see that MLC had established on a balance of probabilities that it had settled the proceedings because it feared that it would or realistically might lose on the permitted development issue. Decision[47]The Claimant’s claim is dismissed.

Cited in 1 later judgment