Kane v New Forest District Council

A planning authority has no blanket immunity from negligence claims arising from the exercise of its statutory planning functions. Where an authority requires the creation of a public footpath whose exit will be dangerous unless remedial work is completed, it may assume responsibility to prospective users to prevent the path from opening before the danger is removed.

The principles governing liability for failing to exercise a statutory power do not determine a claim founded on a danger created by the authority itself. At the summary judgment stage, such a claim may proceed where it has a realistic rather than fanciful prospect of success.

The claimant suffered grievous injuries when he emerged from a public footpath and was struck by a car on Main Road, Marchwood. Trees and vegetation restricted drivers’ sightlines at the footpath exit. The District Council had required the footpath as part of a residential development and knew before it opened that the exit was dangerous.

A district judge entered summary judgment for the Council under rule 24.2 of the Civil Procedure Rules 1998. Judge Thompson QC dismissed the claimant’s first appeal, holding the claim unsustainable under existing authority. On a second appeal, the central issue was whether the claimant had a realistic prospect of establishing that the Council owed and breached a common law duty of care.

1. Appeal allowed unanimously. Simon Brown LJ held that the claimant had not merely a realistic prospect of establishing negligence but a positively powerful case. May LJ agreed for substantially the same reasons, and Dyson LJ agreed with both judgments.
2. The Council had required the construction of the footpath and knew that its exit onto the road would remain dangerous unless the sightlines were improved. It was therefore properly arguable that the Council created the source of danger and could not leave others to cure it while knowingly permitting the path to remain open.
3. The claim did not depend on proving that the Council had negligently failed to impose an appropriate condition when the development arrangements were made. It had a free-standing basis in the Council’s subsequent failure to ensure that the footpath remained closed until the sightline works were completed. A formal contractual right or statutory power to prohibit opening was immaterial because the developer could readily have been asked to keep the path closed.
4. May LJ held that, by requiring construction of a public footpath which would be dangerous unless improvements were made, the Council assumed responsibility to prospective users to ensure that it was not opened before the danger was removed. This was an orthodox application of common law negligence principles.
5. Stovin v Wise [1996] 1 AC 923 was distinguishable. It concerned an omission to make safer a highway danger which the authority had not created. The present claim concerned a hazard created by the Council itself.
6. Lam v Brennan and Borough of Torbay [1997] PIQR P488 did not confer blanket immunity upon planning authorities. Depending on the facts, an ordinary grant or refusal of planning permission might create no common law duty to compensate affected persons. That principle did not preclude liability where the authority had itself required the creation of a known danger.
7. Although section 154(1) of the Highways Act 1980 might have enabled action against obstructing vegetation, the simpler and more realistic basis of the claim was that the Council could and should have delayed opening the footpath until the sightlines were improved.

1. Court of Appeal: The second appeal was allowed unanimously. The summary judgment and both dismissals below were displaced. The claimant received the costs of the appeal and both earlier hearings as against the Council.
2. Queen’s Bench Division: Judge Thompson QC dismissed the claimant’s appeal from the district judge on 3 April 2000.
3. County Court: District Judge Cooper entered summary judgment dismissing the claim under rule 24.2 of the Civil Procedure Rules 1998 on 7 December 1999.