Escott & Anor v Tunbridge Wells Borough Council

On 17 April 2015 Mr. Thomas Escott and Mrs. Maureen Escott issued a claim against the Defendant, Tunbridge Wells Borough Council, for misfeasance in public office. The Claimants’ schedule of loss dated 7 April 2015 claims losses quantified at £1,082,000, unquantified business losses and exemplary damages. On 3 November 2015 the Defendant filed an Application Notice to strike out the entirety of the Claim Form and the Particulars of Claim or summary judgment dismissing the claim. In the alternative they sought to strike out certain heads of loss.

On 1 June 2016 the application came before Master Kay QC. He dismissed the Defendant’s application on the basis that it was inappropriate for the matters raised to be dealt with by way of summary judgment and decided that they should instead be tried as a preliminary issue. No doubt that was also the view he took of the application to strike out. Nonetheless he ordered that the costs of the Defendant’s application and of the hearing should be costs in the case.

Master Kay QC ordered the following two preliminary issues to be tried:

I am grateful to the parties for their written and oral submissions. I also express my gratitude for the clear and courteous manner in which Mr. Escott conducted his case in person. He responded helpfully to questions from the Court to confirm both the way in which the claim is put forward and how he seeks to refute the limitation defence.

Paragraph 1 of the Particulars of Claim indicates that the claim is for misfeasance in public office and/or negligence by the Defendant. However, the Particulars do not identify any duty of care owed by the Defendant to the Claimants or the companies, or state the respects in which the Defendant is alleged to have acted negligently. Furthermore, the Particulars of Claim conclude by stating that “the tort of misfeasance has been made out” and by reason of that misfeasance damages are claimed (paragraphs 65-66). No reference is made to negligence. Mr. Escott confirmed during the hearing that the Claimants do not rely upon negligence as forming a separate basis for the claim and I therefore need say no more about that aspect.

In Three Rivers District Council v Bank of England (No. 3) [2003] 2 AC 1 Lord Steyn explained at p.191 that there are two types of conduct which may constitute the tort of misfeasance in a public office. The first is a case of “targeted malice” by a public official. It involves bad faith in the sense that a public power is exercised for a specific improper or ulterior motive, namely an intention to injure a person or persons. The second type occurs where a public official acts, knowing that he has no power to perform that act, and that it will probably injure the claimant. This involves bad faith in that the public official does not have an honest belief that his act is lawful.

Mr. Escott confirmed that the Claimants’ allegations in this case fall solely within the first type of misfeasance in public office. In any event, I am satisfied that the Particulars of Claim do not set out any allegations which could meet the requirements for the second type of misfeasance.

It was common ground between the parties that, the Defendant having relied upon limitation as a defence, the burden lies on the Claimants to show that their claim is not statute-barred (see e.g. McGee Limitation Periods (7^th ed) paras. 21.012 to 21.016). In section 2 of the 1980 Act the relevant limitation period is 6 years from the date on which the cause of action accrued. So in this case the Claimants must show that their cause of action accrued on or after 16 April 2009.

The Claimants were the freehold owners of both Units 1 and 2, Hope Farm, Crouch Lane, Sandhurst (“the property”). The Defendant is the local planning authority for the area in which the property is situated. The property had the benefit of planning permission for a use which included the B1(c) use class of the Town and Country Planning (Use Classes) Order 1987 for light industrial purposes. That phrase refers to an industrial use “which can be carried out in any residential area without detriment to the amenity of that area by reason of noise...”. The permissions contained a condition which expressly prohibited the buildings from being used for any purpose outside class B1(b) or B1(c).

In late August 1998 the Claimants moved the joinery business they operated through Scalegold to the property. The company’s operations in the workshop began at some point the following month. It involved the use of machinery such as saws and routers which emit noise.

There are residential properties in the neighbourhood. The Defendant received some complaints from neighbours. Planning officers visited the property and made a judgment that the business was generating too much noise to fall within the B1(c) use class. They therefore prepared a report for the meeting of a planning committee of the Defendant held on 14 September 1998. From paragraph (8) of the report it appears that by this stage officers from the Defendant’s Environmental Health Service had also visited the site. The Environmental Services Manager advised the Committee that he was sceptical as to whether the woodwork shop could operate without detriment to amenity even if basic noise control measures were to be put in place. He recommended that an enforcement notice be served under section 172 of the Town and Country Planning Act 1990. The planning officers concurred in that advice. The Committee resolved to issue enforcement notices requiring the owner to cease using the buildings for any activity outside the B1(b) or B1(c) Use Class.

The Committee having authorised the taking of enforcement action, an Environmental Health Officer, Mr. Tony Baldock, visited the property on 17 September to take noise readings. On 21 October 1998 the Enforcement Notices were issued. Section 6 set out what the owners of the property were required to do in order to remedy the breach of planning control. They were not to operate the woodworking business so as to exceed a specified noise level measured at the nearest residential property, that level being based upon the method described in British Standard 4142 (“BS 4142”).

The Claimants appealed against the Enforcement Notices to the Secretary of State. One of the grounds of appeal was that the noise level specified in the notices was too low. A public inquiry was held. The Claimants were represented at the inquiry by Counsel specialising in planning law. They called evidence from an acoustic engineer, Mr. Andrew Munro. This expert did not challenge the approach taken by the Defendant as to the setting of a noise level. He did not suggest that noise limit specified in the notices did not accord with BS 4142. Instead, his main point was that the noise limit should be increased by 1 dB so as to allow noise levels up to 4dB, rather than 3 dB, above the background noise level.

On 18 May 1999 the Inspector issued her decision letter in which she dismissed the substance of the appeal, in particular the challenge to the noise level stipulated in the notice in order to remedy the breach of planning control. The enforcement notice came into effect on 31 December 1999.

On 1^st August 2000 Scalegold was charged with having breached the noise level in the enforcement notices on three different days. The company was convicted by the magistrates’ court on each of the three charges and appealed against the convictions. On 1 November 2001 Her Honour Judge Hamilton QC, sitting with justices, allowed the company’s appeal in respect of two of the convictions but not in respect of a third. The transcript records that she voiced a general criticism about the drafting of the noise limit in the enforcement notice.

Following that decision, the Defendant required a report to be prepared by a different environmental health officer. In his report dated 19 February 2002 Mr Waring described the low background noise and tranquil rural conditions in the vicinity of the property (para. 1.2). He gave his qualitative assessment of the noise from the property (para. 5.2) and stated that, whilst not constantly present, “there are substantial periods of the day when it can be heard distinctly above the background noise level” (para. 6.1). In Mr Waring’s judgment the noise emissions did not reach the threshold for a statutory nuisance so as to justify action being taken under Part III of the Environmental Protection Act 1990. But he considered that the noise was “detrimental to the amenity of the area”, a concept used in the exercise of planning control. He stated that “it frequently intrudes into the rural background noise climate and is inevitably a source of annoyance to nearby residents”.

Further noise monitoring then followed. On 10 March 2003 the planning committee was advised by officers that there was no continuing breach of planning control, but the site would be periodically monitored by officers.

On 3 July 2003 solicitors then acting for the Claimants wrote to the Defendant setting out the basis upon which they said that a claim for misfeasance in public office would be brought. The allegations and the losses claimed at that stage overlap substantially with the contents of the Particulars of Claim.

Between 2005 and February 2009 the Claimants and their solicitors wrote to the Defendant to ask for the Enforcement Notice to be withdrawn on the basis that it had ceased to serve any legitimate purpose. The Defendant explained in its replies why it disagreed.

The Claimants then made two applications to the Defendant for planning permission to redevelop the property for residential purposes. The applications were refused and the Claimants’ subsequent appeals to the Secretary of State were unsuccessful. The Claimants challenged one of these appeal decisions in the High Court under section 288 of the 1990 Act. It was said that the Inspector had failed to take into account as a material consideration the difficulties faced by any user of the property for B1 purposes of complying with the enforcement notice. The claim was dismissed. But Collins J was sympathetic to the Claimants’ criticism of the notice, taking into account the remarks made in the Crown Court by HHJ Hamilton Q.C. Because Collins J believed that it was impossible for the notice to be complied with, he expressed the view that it had been extraordinary for the Defendant to refuse the requests it had received to withdraw the notice. He suggested that if a further formal request were to be refused that could be the subject of a judicial review which, in the absence of a proper justification from the Defendant, would be likely to succeed.

However, in paragraph 20 the judge did emphasise that he had not had the opportunity to hear from the Defendant or to consider any evidence adduced by them. In my judgment those were important qualifications because noise and acoustic analysis is a highly technical subject. It is self-evident that the Court would need to have properly prepared expert evidence in order to be able to reach sound conclusions on the issues raised by the Claimants. I also note that it does not appear that Collins J had any document before him from the Defendant dealing with the comments of the judge in the Crown Court. As is normal in section 288 challenges, the Defendant did not appear in the High Court. Instead the challenge was resisted by the Secretary of State.

On 18 May 2009 the Defendant’s planning committee accepted a recommendation that the enforcement notice be withdrawn and that step was taken. It is important to note why this decision was taken. The committee was presented with three options. The first was that the Defendant should maintain the enforcement notice. The members were advised that previous decisions refusing to withdraw the notice had been lawful and that a challenge by way of judicial review could be successfully defended. But the officers pointed out that the Council would be exposed to legal costs and they queried the expediency of maintaining the notice given that noise complaints from the public had ceased despite the fact that the joinery business had continued in operation. The officers recommended that “on balance” the notice should be withdrawn as the most expedient and proportionate response and to demonstrate some goodwill to the Claimants in an attempt to resolve a longstanding matter of concern to them (option 2). The committee was also advised under that if harm to amenity should occur in the future fresh enforcement action could be taken.

It is necessary to identify the misconduct upon which the Claimants rely in order to found their claim. Mr. Escott confirmed that it comprises, in summary, the following points:-

Mr. Escott accepted that of these four points the only matters which fell within the limitation period beginning on 16 April 2009 were the Council’s decision to withdraw the enforcement notice on 18 May 2009 and its continuing failure or refusal to withdraw that notice between 16 April 2009 and 17 May 2009.

Mr. Escott accepted that a cause of action for misfeasance in public office does not arise unless and until the conduct complained of gives rise to “material damage.” Each item on the schedule of loss was considered during the hearing. With two possible exceptions, Mr Escott confirmed that all the losses were sustained during the period 1998 to 2008, often towards the beginning of that period. Such losses fall outside the limitation period which began on 16 April 2009. The two possible exceptions were items 1 and 2f:-

Unfortunately, the Claimants have not given any further details about these alleged losses or how they are computed, notwithstanding paragraphs 3, 7 and 8 of the order made by Master Kay QC on 1 June 2016. I also note that Scalegold was dissolved on 27 May 2009, very shortly after the beginning of the limitation period. During the hearing I asked Mr. Escott whether he could provide any further assistance to the Court about the period covered by items 1 and 2f on the schedule of loss but he was unable to do so. In my judgment it is reasonable to infer on the balance of probabilities from the documents before the court that very little, if any, of the alleged loss under these headings fell inside the limitation period.

How then do the Claimants seek to overcome the limitation defence? In his skeleton Mr. Escott appeared to rely upon sections 14A and 14B of the 1980 Act (inserted by the Latent Damage Act 1986). But he accepted that these provisions only apply to negligence claims not involving person injury, and do not apply to claims for misfeasance in a public office.

Next, Mr Escott confirmed that he is not relying upon section 32 of the 1980 Act in order to postpone the start of the limitation period, whether on the grounds of deliberate concealment or otherwise.

The Claimants’ case on the limitation defence rests on only two points. The first and main argument relied upon is that no cause of action accrued, or there was no right to bring a claim, until 18 May 2009 when the Defendant withdrew the enforcement notice, and therefore the claim was properly brought on 17 April 2015 within the 6 year limitation period. The only reason advanced to support this argument is that until the Defendant withdrew the enforcement notice the Claimants had no right to bring a claim for misfeasance in public office simply because the enforcement notice was legally valid (and therefore binding) and not open to challenge. although the Claimants accept that, on their case, all the elements of that tort had previously been present. The Claimants’ second and fallback argument is that, on the facts of this case, the misfeasance was a continuing tort which carried on beyond the start of the limitation period on 16 April 2009.

The Claimants did not identify the legal source of their argument relating to the “validity” of the enforcement notice. It appears that they had in mind brief remarks made by HHJ Hamilton QC during the Crown Court hearing on 1 November 2001 (see paragraph 18 of the Claimants’ skeleton). In fact, this was simply a short response to a hasty comment made by counsel for the Claimants in the middle of his cross-examination of the Defendant’s witness. He suggested, without putting forward any authority, that the Claimants were unable to challenge the validity of the enforcement notice in the Crown Court. The Judge agreed and added that she was bound by the Inspector’s decision (see page 63 of the transcript). However, it is unsurprising that no detailed consideration was given to this topic because it is plain from the submissions made on behalf of the parties that the real issue for the Crown Court was simply the technical question of whether or not the evidence relied upon by the Defendant to show a breach of the enforcement notice failed to comply with the assessment methods laid down in BS 4142. No legal support for the Claimants’ position can be drawn from “asides” of this nature. The Claimants and their advisers have read far more into these exchanges than the language used could possibly bear when read properly and in context, (see for example the letter from Brachers dated 7 February 2007). With respect, the same may be said of the Claimants’ reliance upon the brief comment in paragraph 8 of the judgment of Collins J.

The source of the prohibition on challenging the validity of enforcement notices is the “ouster provision” in s.285 of the Town and Country Planning Act 1990 Act. In the hearing before me the parties did not address this provision or the scope for challenging the validity of an enforcement notice outside Part VII of that Act. But it is clear from the case law cited in the Notes on section 285 in Volume 2 of the Encyclopaedia of Planning Law and Practice that the Claimants’ argument is misconceived. Even where a legal claim or defence involves challenging directly or indirectly the validity of an enforcement notice, the effect of the ouster clause is limited to grounds which could have been pursued in an appeal under Part VII. That would not exclude the bringing of an action for damages for misfeasance in public office.

In Davy v Spelthorne B.C. [1984] AC 262 the House of Lords held that the term “invalidity” in what is now section 285(1) is merely used in a prohibition of certain challenges to the enforceability of an enforcement notice. It was pointed out, by way of example, that an action could be brought notwithstanding section 285 where an enforcement notice had been vitiated by fraud because a planning officer had been bribed to issue it (see page 272). Logically the same analysis must apply where an enforcement notice has been issued, and then wrongfully maintained, by conduct in bad faith amounting to misfeasance in a public office. It follows that the supposed continuing validity of the enforcement notice could not have provided a basis for striking out the Claimants’ claim for misfeasance in public office, on the grounds that the tort was not yet complete, or the right to sue had not yet arisen (or was in some way barred by that “validity”). There was no legal reason why the Claimants were unable to bring their claim before the withdrawal of the enforcement notice.

Furthermore, part of the Claimants’ case is concerned with an improper refusal by the Defendant to exercise its power to withdraw the enforcement notice after 2001. Section 285 could not possibly prevent the bringing of an action for damages based upon such an allegation.

As a matter of principle the Claimants’ argument is inconsistent with the very nature of the tort of misfeasance in a public office. For example, where a public official has acted in bad faith by deliberately taking action which he knows to be ultra vires, there is no need to have that action quashed in proceedings for judicial review, or for the authority concerned to withdraw or revoke that action, before the claim in tort can be brought. In the present case we are dealing with the first type of tort, where the power to act does exist, but where it is exercised for an improper motive in order to inflict damage on the claimant. No doubt such action could be the subject of a challenge by judicial review. But there is no legal requirement that that action be quashed, or revoked by the authority, before the claimant may bring a claim for damages based upon misfeasance. No authority was referenced to the court to suggest the contrary.

That is hardly surprising. I accept the submission of Mr. Wayne Beglan, who appeared on behalf of the Defendant, that the Claimants’ argument would, if accepted, stand the tort of misfeasance on its head. In a case where a public authority has in fact acted maliciously it could prevent or inhibit the bringing of a claim in damages for misfeasance by refusing to withdraw or revoke the conduct or action complained of. The only way of avoiding that absurd outcome would be for a claimant to obtain a quashing order in proceedings for judicial review. But there is simply no justification for requiring any such additional set of proceedings to be issued and pursued to a successful conclusion before the tortious claim may be brought.

For all these reasons I reject the Claimants’ first argument as to why the claim is not statute-barred.

The Claimants’ second argument, and it was very much a fallback, is that the tort allegedly committed by the Defendant was a continuing tort which carried on after the beginning of the limitation period on 16 April 2009. Mr. Escott then asserts, without any authority, that if that submission is accepted, the Claimants would be entitled to recover all of their alleged losses, even those predating the start of the limitation period going as far back as 1998. With respect, the argument is misconceived.

The events which occurred in 1998 and in 2000 to 2001 when the enforcement notice was issued and prosecutions brought for breaches of the notice were “once and for all” events. The Claimants’ only complaint of a continuing nature is that once the enforcement notice had come into force (on 31 December 1999), it had a continuing daily effect through the obligation imposed upon the owners and occupiers of the property to comply with the stipulated noise level whilst the notice remained in existence. Of itself that would not make the conduct complained of a continuing tort. That argument simply describes the continuing loss suffered as a result of the action taken by the Defendant between September 1998 and 1 November 2001 (see Iqbal v Legal Services Commission [2005] EWCA Civ 623 at paragraph 25).

The only conduct in the present case which might give rise to a continuing tort would be the refusal of the Defendant to withdraw the notice. But given the nature of the tort of misfeasance in public office the Claimants would need to show that that conduct continued and was motivated by malice during the period leading up to the withdrawal of the enforcement notice on 18 May 2009 (see Iqbal at paragraph 34). Malice and bad faith are essential constituents of the tort relied upon in this case and that must apply equally to conduct which is said to constitute a continuing tort.

In their pleadings the Claimants have not particularised a continuing tort of this kind. In particular, they have not specified matters amounting to malice and bad faith from November 2001 up to the beginning of the limitation period and during the following period of just over one month before the notice was withdrawn. The Claimants have had every opportunity to do this if their claim was going to be advanced on this basis.

In any event, even if the Claimants’ case were to be put in this way, they would only be entitled to damage for losses sustained during the limitation period and not before (see Iqbal at paragraph 25). Mr. Escott accepted that he was unable to point to any loss sustained after 16 April 2009. Once again the Claimants have had every opportunity to particularise their losses during the 5 months which have elapsed since the order of Master Kay Q.C. Mr. Escott was offered further time during the hearing to consider the point. That opportunity was not taken. In the circumstances it is reasonable for the Court to conclude that there is no such claim falling within the limitation period.

In any event, in the absence of particulars from the Claimants of a continuing tort, Mr. Beglan demonstrated by reference to the documents in the hearing bundle, which substantively constitutes the evidence for the hearing of the preliminary issue, why it is impossible for the Claimants to show malice continuing up to and beyond the start of the limitation period. In his reply, Mr. Escott made no real attempt to contradict those submissions.

In summary, Mr. Beglan demonstrated that:-

For all these reasons the suggestion of a continuing tort could not possibly succeed. It must also follow that the whole of the claim must be dismissed because it is statute-barred under the Limitation Act 1980.

Given my conclusion on the first issue, it is unnecessary for me to deal with the second issue. In any event, as I indicated during the hearing, there is not the factual material from the Claimants nor the legal analysis from either side (including case law on circumstances in which the veil of incorporation may properly be pierced), to enable me to reach any proper conclusions on the subject. Neither party sought to persuade me to come to a different view. Accordingly, I will make no order on the second preliminary issue.