Negligence

Citation

Lee, R. (2001), "Negligence", Property Management, Vol. 19 No. 5. https://doi.org/10.1108/pm.2001.11319eab.001

Negligence

Negligence

Kane v. New Forest District Council [2001] 27EG 132 (CS) CA

In this case the local planning authority granted planning permission to construct a residential estate in Marchwood, Hampshire. The planning permission required the developer to construct a footpath. The Highway Authority considered the sight line at the point where the footpath emerged on to the main road to be "unsuitable". The local authority therefore entered an agreement with the developer and the owner of a neighbouring house to purchase a strip of land that would improve the sight line. Unfortunately no steps were taken to ensure that the footpath would remain closed until this purchase had gone through and the sight line was improved. The claimant in this case was badly injured when he was struck by a car as he emerged on to the main road from the footpath at a dangerous bend where the oncoming driver's view was obscured by vegetation. He brought an action for negligence against the local authority which, he alleged, was responsible for the creation of the footpath and its emergence at a foreseeably dangerous point in the road. He claimed that the council should not have permitted the opening of the footpath before the necessary improvements to the sight line had been made. The claim was dismissed by the district judge and by the circuit judge on appeal on the ground that it had no prospect of succeeding. The claimant appealed to the Court of Appeal.

The council argued on the basis of Stovin v Wise [1996] AC 923 and Chung Tak Lam v Brennan and another [1997] 3 PLR 22 that local planning authorities enjoyed a blanket immunity in law from anything done in respect of the exercise of their planning function.

The Court of Appeal disagreed as to the extent of any immunity enjoyed by the planning authority. Their Lordships held that Stovin v Wise could be distinguished on the ground that in this case the council had created the danger by requiring the footpath to be built. It was unnecessary to hold the council negligent for failing to impose a condition forbidding its opening until the sight lines had been improved because as the council had created the danger, it could not simply walk away and leave it to others to rectify the danger by improving the sight line. The planning authority must have known that the footpath was in a dangerous state and it followed that the claimant had a powerful case in negligence against the planning authority. The appeal was allowed.

The precise scope of this decision is unclear but it seems to open up a vast area of potential liability for negligence arising from planning decisions that create foreseeable dangers of personal injury. There seems to be no reason why the principle in this case could not be applied in a range of planning circumstances. One example might be dangers arising from the redevelopment for residential purposes of brownfield sites.