Middle Level Commissioners v Atkins Ltd

A professional consultant is negligent only if the advice given falls below the standard expected of a reasonably well-informed and competent member of the relevant profession. Where the relevant professional judgment concerns whether planning permission is required, the court must recognise any legitimate range of professional opinion. A consultant may reasonably advise against obtaining a certificate of lawful use where the available planning interpretation supports permitted development, the local planning authority has repeatedly confirmed that view, and consultation has disclosed no material objection. The decision remains one of professional judgment, assessed in its full factual and regulatory context.

The claimant drainage authority engaged the defendant multidisciplinary engineering consultancy to advise on the replacement of a pumping station. The defendant advised that the works were permitted development under Part 14 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995, and advised that a certificate of lawful use was not necessary, while identifying that option to the claimant.

After local residents threatened judicial review proceedings, the claimant obtained planning permission and incurred legal and related costs. It claimed damages for breach of contract and professional negligence. The claimant ultimately conceded that it could not establish negligence in the advice that the works were permitted development. The remaining issue was whether the defendant had negligently failed to recommend obtaining a certificate of lawful use.

1. Claim dismissed. The claimant failed to establish any material breach of duty.
2. The applicable standard was that stated by Lord Diplock in Saif Ali v Sidney Mitchell & Co [1989] AC 198: professionals are liable for advice which no reasonably well-informed and competent member of the profession would have given.
3. There is no recognised profession of planners as such. The court therefore had to assess the defendant’s planners against the range of relevant qualifications and experience found among competent planning practitioners. Different competent planners could reasonably have reached different views on whether the replacement station was permitted development.
4. The wording of Part 14 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 strongly supported the view that the works were permitted development. The works involved development by a drainage body in or under a watercourse or land drainage works, and were required in connection with improving those works. The provision contained no limitation restricting it to minor works, improvements to existing installations, or works below a particular cost.
5. The decision whether to recommend a certificate of lawful use was a matter of professional judgment. Relevant considerations included the planning authority’s repeated written confirmation, extensive consultation producing no material objection, and the time and cost implications of obtaining the certificate. The defendant had identified the certificate option and reasonably concluded that it was unnecessary.
6. The defendant was not negligent in failing to anticipate that a person who might not have heard of the proposals would later seek judicial review. Although the claimant relied on the advice, no breach had been established. The claim was dismissed.