Kane v New Foret DC
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE MAY,LORD JUSTICE DYSON |
| Judgment Date | 13 June 2001 |
| Neutral Citation | [2001] EWCA Civ 878 |
| Docket Number | Case No: B3/2001/9001 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 June 2001 |
[2001] EWCA Civ 878
Lord Justice Simon Brown
Lord Justice May and
Lord Justice Dyson
Case No: B3/2001/9001
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(H.H. JUDGE THOMPSON, Q.C.)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr. A.J.S. Coleman (instructed by Moore & Blatch of Southampton SO17 1XF) for the Appellant
Mr. J.M. Snell (instructed by Beachcroft Wansbroughs of Winchester SO23 9WP) for the Respondent
On 1 March 1995 the appellant suffered grievous injuries when struck by a motor car whilst out walking in the New Forest. He had emerged from a footpath and was crossing the road opposite. The motor car came from his right and, says the appellant, the driver had no chance to avoid him: the footpath ended on the inside of a bend in the road and the trees and vegetation growing alongside the road reduced the oncoming driver's visibility to no more than some 10–15 metres. The appellant rather puts his blame for the accident upon the respondent District Council, the authority responsible for the creation of this footpath and its emergence at a foreseeably dangerous point in the road.
Initially the appellant brought his claim also against the Hampshire County Council (the HCC), the highway authority responsible for the roadway. Following discovery, however, he accepts that the HCC had consistently warned the respondents about the danger of this footpath and he no longer attributes blame to them.
On 7 December 1999 the appellants' claim was dismissed by District Judge Cooper under CPR 24.2, the rule which allows summary judgment to be given against a claimant if the court considers that the "claimant has no real prospect of succeeding in the claim". The appellants' appeal against that order was dismissed by Judge Thompson QC on 3 April 2000. Both the district judge and Judge Thompson held the claim to be unsustainable in the light of existing authority, most particularly the House of Lords decision in Stovin v Wise [1996] 1AC 923 and the Court of Appeal decision in Lam v Brennan and Borough of Torbay [1997] PIQR P488. 4. Now before us is the appellant's second tier appeal brought by permission of Mantell LJ. The question it raises is whether the circumstances of this case give rise to a common law duty of care on the part of the respondent planning authority – or, more strictly, whether the appellant has "a 'realistic' as opposed to a 'fanciful' prospect of success" in establishing a breach of such a duty – see Swain v Hillman [2001] 1 All ER 91,92. 5. With that brief introduction let me turn next to flesh out the facts although I need do so only comparatively briefly. These, of course, must at this stage be assumed in the appellant's favour. That said, there is really very little dispute about them: the circumstances in which this footpath came to be constructed and opened appear reasonably clearly from the disclosed documents.
The story begins in 1984 when the respondents as the local planning authority were considering an application by Wilcon Homes Ltd (Wilcon) for planning permission for the construction of a substantial residential estate on land to the north of Main Road at Marchwood in Hampshire. It is unnecessary to describe the topography in any detail. Suffice it to say that the proposal included a footpath on the north side of Main Road running essentially in a north-south direction just to the west of a stream a footpath intended, as the respondents wrote to the HCC on 2 March 1984, "to achieve a link across the road to a footpath [on the south side of Main Road] alongside the stream."
In their reply dated 29 March 1984 the HCC described this access on to Main Road as "totally unsuitable because of the lack of sightlines".
In June 1985 a s.52 agreement was entered into between Wilcon and the respondents providing amongst other things for Wilcon to construct the footpath, and in October 1985 planning permission for the erection of 129 dwellings and associated garages and works was duly granted to Wilcon.
To the west of the footpath at its southern end and bordering the north side of Main Road lay a property called The White Cottage and on 23 July 1987 a tripartite s.52 agreement was entered into between the respondents, the HCC and the owner of The White Cottage by which the latter agreed that upon the respondents' written direction, to be given within 10 years, he would dedicate free of charge to the HCC as highway authority a strip of land up to 312 metres wide fronting Main Road specifically for the improvement of the relevant sightline to the footpath exit.
On 25 April 1990 a supplemental s.52 agreement was entered into between Wilcon and the respondents whereby Wilcon covenanted to construct the footpath before commencing their development works.
On 22 January 1993 the respondents sent a memorandum to the HCC under the heading "Proposed Line of Sight Improvement, Main Road, Marchwood", enclosing a copy of the tripartite s.52 agreement with the owner of The White Cottage, stating "Wilcon Homes will shortly be constructing the footpath … You may therefore consider this brings a new urgency to the proposed line of sight improvements."
The HCC's area surveyor replied to that memorandum on 15 March 1993 stating:
"I am presently drawing up a proposed programme of works for 1993/94 and I hope to include this scheme in that programme."
On 13 July 1993, following a site visit, the respondents wrote to Wilcon Homes stating:
"It was generally agreed that the junction of the footpath with Main Road was a safety problem due to inadequate sight lines. … The District Council agreed to contact the Hampshire County Council to see if they were willing to cut back vegetation on highway land for the same reason [i.e. to improve sight lines]."
On 8 September 1993 the respondents wrote to the HCC's area surveyor:
"You may be aware that the construction of [the] footpath … is nearing completion. Concern has been expressed locally that the footpath emerges at a point where it is dangerous to cross Main Road. I am aware that an agreement was reached in 1987 with the owners of The White Cottage to dedicate a strip of land to the highway authority in order to improve sight lines … the sight line has not been improved and I wonder if any progress is likely to be made in the near future. … In view of the current hazardous situation I would be grateful if you would give consideration to how matters may be improved, for instance by the improvement of sight lines or the erection of pedestrian/vehicle warning signs."
The area surveyor replied on 17 September 1993:
"We have a minor highway improvements scheme for this section of road scheduled for 1993/94."
He wrote again on 23 June 1994 stating:
"Negotiations have recently taken place with Mr Bray, the present owner of White Cottage, over the provision of the brick wall [also the subject of the s.52 agreement]. Subject to your approval and to that of Mr Bray to the brick-type, arrangements will be put in hand forthwith to take the land into the highway. I anticipate that this will take us about 5 or 6 weeks."
Alas, the envisaged 5 or 6 week period was long exceeded and in the event it appears that nothing was done to improve the sight line until after the appellant's accident on 1 March 1995. Meantime, in October 1994 the footpath had been opened to the public.
One of the appellant's main pleaded particulars of negligence against the respondents is that they "caused or permitted the footpath to be created by Wilcon and/or used by the public before any or any adequate measures had been taken to improve visibility along [Main] Road to the west of point E [where the footpath joined Main Road]".
Mr Coleman's skeleton argument on this appeal puts "the claimant's case in a nutshell" thus:
"By insisting on the construction and by permitting the opening of the footpath emerging on to Main Road at point E before the necessary road and/or sight line improvements had been carried out [the respondents] positively created a hazard on the highway which caused or...
To continue reading
Request your trial
- Arab-Malaysian Finance Bhd v Phoa Cheng Loon
- Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon
- D v East Berkshire Community NHS Trust and Another
-
D v East Berkshire Community Health _NHS Trust; K and another v Dewsbury Healthcare _NHS Trust and another ; K and another v Oldham NHS Trust
...HL. Hillman v Black (1996) 67 SASR 490, South Aust SC. James W v Superior Court (1993) 17 Cal App 4th 246, Cal CA. Kane v New Forest DC[2001] EWCA Civ 878, [2001] 3 All ER 914, [2002] 1 WLR 312. Lehman v Stephens (1986) 148 Ill App 3d 538, Ill App Ct. Maples v Siddiqui (1990) 450 NW 2d 529,......
-
Planning Permission
...completion of necessary road or sightline improvements, without which it was aware there was a danger. 168 168 Kane v New Forest DC [2001] EWCA Civ 878, [2002] 1 WLR 312. In allowing the claimant’s appeal, the court found that NFDC owed a duty to those who might have wanted to use the footp......
-
Table of Cases
...Jones v Secretary of State for Wales [1990] JPL 907, 3 PLR 102, (1990) 61 P & CR 238, CA 578 Kane v New Forest District Council (No 1) [2001] EWCA Civ 878, [2002] 1 WLR 312, [2001] 3 All ER 914, [2002] 1 PLR 7 177 Kaur v Russell & Sons Ltd [1973] QB 336, [1973] 2 WLR 147, [1973] 1 All ER 61......