Financial Times Q&A on planning permission

27/02/2010

By Nick Horton, Partner and Head of Dispute Resolution. Featured in The Financial Times.

Q) I run an accountancy firm in Kent. We operated out of a converted townhouse, until recently when we sold the property and relocated. I am unhappy that since the sale planning permission has been granted and the property is being turned into a block of flats which I was told by my selling agent was impossible. Is there any action which I can now take to recuperate the loss on this property which would have been worth considerably more with planning permission?

A) You may have a claim against your selling agent for negligence. The main issues here will be whether in law the agent owed you a duty to provide advice on the planning prospects and whether it was reasonable for you to rely on such advice. These aspects will no doubt be hotly contested. You should expect to have to deal with an argument that you should have taken specialist advice from a planning consultant on this issue, and it will be important to look at the written terms of your contract with the selling agent. If you succeed on these aspects, you could argue that the agent should have advised you to include terms relating to overage in your sale contract.  

The other angle to consider will be the role of the solicitors who acted on your sale and whether they should have thought about the possibility of planning permission being granted and advised you to negotiate appropriate terms in your sale contract. I cannot see that there will be a claim against your buyer unless the buyer induced you to enter into the sale contract on grounds which might give rise to rescission, which is unlikely.