Collins & Anor v Thanet District Council & Anor

Misfeasance in public office requires bad faith. It is established either by an intention specifically to injure the claimant, or by knowledge of, or reckless indifference to, the illegality of the conduct and the probability of injury. A public authority is not bound by an earlier consultation response if, on reconsideration, it considers that response inaccurate or unfair. Planning decisions remain governed by the statutory development-plan framework. The National Planning Policy Framework is a material consideration, but policy does not displace the statutory presumption. A claim for misfeasance also requires special damage; time spent preparing a planning appeal is not special damage. Indemnity costs may be ordered where serious, weak or opportunistic allegations are pursued unreasonably and the case falls outside the norm.

The claimants owned land adjoining St Mildred’s church at Acol and sought planning permission for a self-build house. Thanet District Council refused permission, after Kent County Council changed an initially favourable consultation response to an objection. A planning inspector later allowed the claimants’ appeal but refused their application for costs.

The claimants alleged that officers of both councils had acted dishonestly and in bad faith, amounting to misfeasance in public office. They claimed losses associated with preparing the planning appeal. The court determined whether the officers had acted in bad faith, whether the consultation response could lawfully be reconsidered, and whether the claimed loss constituted special damage.

1. Claim dismissed. The claimants failed to establish misfeasance in public office against either officer.

2. The tort requires bad faith. The relevant forms are an intention specifically to injure the claimant, or knowledge of, or reckless indifference to, the illegality of the act together with knowledge of, or reckless indifference to, the probability of injury. The burden lay on the claimants. The evidence showed that the planning officer considered competing factors, had not predetermined the application, and honestly believed that his conduct was lawful. The transport engineer also acted honestly after reconsidering her initial response and taking advice.

3. A consultee may reconsider and replace an earlier response where it considers that response inaccurate or unfair. The consultation process was not confined to the narrow issue of highway access. The second response was therefore not unlawful merely because it differed from the first.

4. Planning applications must be determined in accordance with the development plan unless material considerations indicate otherwise, under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004. The NPPF was policy and a material consideration, but did not displace that statutory framework.

5. Even if liability had otherwise been established, the claim for the claimants’ time and costs in preparing the planning appeal failed. Under Watkins v Secretary of State for the Home Department [2006] 2 AC 395, proof of special damage was essential, and the claimed expenditure was not special damage.

6. The defendants were awarded indemnity costs. The allegations of dishonesty and impropriety were serious, weak and pursued aggressively without evidential foundation. That conduct took the case outside the norm. The court ordered payment on account of £25,000 to each defendant within 14 days.