Client's contributory negligence for planning solicitor's error

Client's contributory negligence for planning solicitor's error

What are the implications of the court's decision to hold a client responsible for two-thirds of the total recoverable loss where the solicitor gave negligent planning advice? Flattery v Newman demonstrates that where a property's use is crucial to the buyer and no planning permission is in place, solicitors and clients should be careful not to proceed with a property purchase without an actual certificate of lawful use, regardless of the strength of supporting evidence.

Original news

Flattery v Newman & Maxwell (a firm) and others [2014] EWHC 3006 (Ch), [2014] All ER (D) 128 (Sep)

The Chancery Division found that M, a solicitor in the defendant firm, had failed to exercise reasonable care in advising the claimant on planning issues during the course of a conveyancing transaction. However, the claimant was found to bear responsibility for two-thirds of the total recoverable loss of £232,150.

What was the main issue before the court?

The court had to decide whether solicitors breached their duty to exercise reasonable skill and care in not advising a client to apply for a lawful development certificate (LDC) before completing on a property purchase.

What was the background to the case?

Mr Flattery instructed M, to act in the purchase of a property for use as a scrap metal yard. Mr Flattery had used M previously in relation to an application for an LDC under the Town and Country Planning Act 1990, s 191. An LDC is a certificate from the local authority that a given use of land, which would otherwise contravene planning legislation, has been continuing without interruption for ten years or more and is now lawful in that it cannot be the subject of enforcement action. See Practice Note: Lawful development certificates.

Before the sale was complete, the local search results had revealed that there was no planning permission for use

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About the author:

Jen is a solicitor specialising in planning law. She has experience in relation to a range of planning topics, including environmental impact assessment, section 106 agreements, highways orders, compulsory purchase, freedom of information issues, inquiries, judicial review, the Localism Act 2011, the National Planning Policy Framework and major infrastructure projects. After qualifying at Ashurst, Jen worked at Bevan Brittan and subsequently at CMS Cameron McKenna as an associate in the planning team. She worked as an external author for LexisPSL before joining the team in November 2010. She has written for a variety of legal publications, including the New Law Journal, Utilities Week, Planning Resource and The Lawyer. Jen regularly appears on Talking Law videocasts providing legal updates on planning law.