Martin Melia & Anor v Tamlyn and Son Limited

A professional adviser engaged to obtain planning permission and assist with the resulting works may owe contractual and concurrent tortious duties extending beyond accurate drafting. The scope of duty is identified by the purpose of the retainer, including the need to advise on departures from permission and the risks of enforcement.

Where negligent advice is the sole cause of an unlawful development, losses resulting from the project’s failure may fall within the scope of duty. A claimant’s later dishonest conduct may reduce recovery to reflect personal responsibility. Expert evidence is unnecessary where professional negligence is obvious, but is generally required for nuanced omissions or technical planning issues.

The claimants, intending to create a retirement home from an outbuilding, engaged the defendant surveying firm to advise on planning permission, prepare building-regulation drawings, produce a schedule of works and manage construction.

Planning permission permitted conversion but prohibited demolition. The defendant’s employee advised the claimants that substantial demolition and reconstruction would be acceptable, and later advised misleading representations after the works were stopped. The claimants alleged breach of contract and negligence and claimed the resulting financial losses. The defendant pleaded illegality, contributory negligence and lack of duty or causation.

The principal issues were the scope of the defendant’s contractual and tortious duties, breach, causation, illegality, the effect of the claimants’ later dishonesty, and the proper measure of loss.

1. Liability. The defendant was liable for breaches of the First Contract, concerning planning and building-control advice, and the Second Contract, concerning the schedule of works and project management. The judgment on liability was handed down with quantum and costs reserved.
2. Contractual duties. The First Contract expressly included advice on the planning application. The contractual context showed that the defendant professed specialist experience and was engaged to advise what development was permissible. The Second Contract carried the usual implied term to exercise reasonable skill and care.
3. Concurrent tortious duty. Applying Henderson v Merrett Syndicates Ltd (No.1) [1995] 2 AC 145, the defendant’s professional undertaking, professed skill and known reliance created a concurrent duty of care.
4. Scope and breach. The purpose of the retainer included bringing the planning project to lawful fruition. The defendant had to advise on whether the claimants could depart from the permission and communicate the risks, including enforcement action. The positive advice to demolish and reconstruct was plainly negligent. Some alleged omissions required expert evidence, while others were sufficiently obvious to establish breach without it.
5. Causation and loss. The claimants would have proceeded lawfully if properly advised. The unlawful advice caused the project to be stopped and the pleaded losses were within the scope of duty. The purpose-based approach in Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 was applied as the principal analysis and its six-stage checklist used as a cross-check.
6. Illegality and responsibility. The claimants had not initially intended to mislead the planning authorities. Their later participation in a dishonest retrospective application amounted to moral turpitude and justified limiting recovery of post-discovery costs to 50%. The earlier unlawful construction resulted from reliance on the defendant’s advice and did not bar the claim.
7. Measure. The prima facie measure was the difference between the value of the property as it should have been after lawful performance and its actual value, with appropriate associated losses. The defendant could not require an artificial reconstruction of the original outbuilding as mitigation. Further submissions and expert evidence were directed on quantum and costs.