Local Search Results

July 30th, 2015

In Chesterton Commercial (Oxon) Ltd v Oxfordshire County Council (2015) EWHC 2020 (Ch) the Council was found liable to the claimant developer which had relied on its local search results stating that parking spaces which formed part of the property it was buying were not maintainable at public expense. There was at the time an ongoing investigation into whether this was in fact the case and further consideration was required. There was a real risk that the records might be inaccurate and that the parking spaces might be public highway. The response to inquiries said nothing at all about the investigation. The entire title was stated to be private land.

Under the Highways Act 1980 Section 36, each County Council must make, and keep corrected up to date, a list of the streets within their area which are highways maintainable at the public expense. That list is to be kept deposited at the County Council office and is to be available for free inspection at all reasonable hours. In England the County Councils must supply to the council of each district in the county an up to date list of the streets within the area of the district that are highways maintainable at the public expense, and that list must be kept deposited at the office of the district council and kept available for inspection by the public free of charge at all reasonable hours.

The Judge found that, having regard to its statutory duty, the County Council did not make correct and updated information available to the claimant when its solicitors conducted searches. However, the County Council contended that the statutory duties imposed by Section 36 of the Highways Act 1980 gave rise to no private cause of action, and that it owed no independent duty of care to the claimant. It denied any or any actionable negligence. It argued that the only information which it was required to give by Section 36 about highways maintainable at public expense was to identify highways known to be maintainable at public expense. It was not strictly liable for the accuracy of the information and owed no duty at all to identify roads or streets under investigation on its Section 36 lists or maps.

The Judge observed that the question of whether a local authority may be liable to a member of the public in a private action for breach of statutory duty for an inaccurate search result which leads to loss is undecided. The Council argued that there is no such right. The Judge did not, however, find it necessary to decide whether there is a private right of action for breach of the Section 36 duty. This was because a local authority may be liable to a member of the public in tort. In Gooden v Northamptonshire CC [2001] EWCA Civ 1744 it was held that a local authority owed a duty of care in respect of an incorrect answer to enquiries that certain land was maintainable as a highway at public expense. Arden LJ, who gave the leading judgment, acknowledged that purchasers of property commonly relied upon searches in the form of Enquiries made of highway authorities in deciding whether or not to buy properties, and the law could be criticised if it ignored that reality. She also drew an important distinction between mere foreseeability that that information provided would be used in that way and providing information for that purpose. A highway authority cannot be taken to know for what purpose a particular enquiry is being made, but it would know that answers to enquiries are provided within a ‘well worn’ conveyancing framework. Arden LJ reserved the Court of Appeal’s position on whether a breach of the statutory duty to maintain an accurate list would be actionable by a person harmed by a failure to do so. However, she also pointed out that just because the statutory list of roads maintainable at public expense was wrong, it did not necessarily follow that the Council responsible for maintaining the list was negligent, and in that case it was no part of the pleaded case that the Council in the case had been negligent. Not so in the Oxfordshire case. The case in negligent misstatement was pleaded, and was the primary case at trial. The claimant also contended that the Council’s duty at common law was the same as its statutory duty – namely to cause a list to be made of the streets which are highways maintainable at the public expense, to keep that list corrected and up to date, and to supply each district council within its area an up to date list of the streets within that district which are highways maintainable at the public expense.

The Judge ruled that the Council owed the claimant a duty of care at common law with respect to its reply to enquiries for the purpose of the decision which the claimant made to acquire the property, and that the result of the search amounted to a statement by the Council that the car parking spaces were not part of the highway but were private space. She said:-

“34.      It was the Defendant’s proper role, as required by statute, to answer the inquiries made on the search accurately. It did not do so. The Defendant argued that it was sufficient that the result of the search showed accurately what was on the Highway Map. I do not accept that submission. It overlooks the fact that the statute requires the list of streets which are highway maintainable at public expense to be kept corrected up to date. Had the list been correct and up to date it would have been marked as showing that there was an investigation going on. I entirely accept that the Claimant did not make known to the Defendant that it was buying for development and re-sale, but that matters not where the Claimant is not arguing for prospective development losses to be paid by way of damages but relies on diminution of value from pre-existing use.

35.       I find, on the evidence, that if the reply had been accurate, the Claimant might not have proceeded at all, and would definitely not have proceeded at the same price.”

It was acknowledged by the Council’s witness in evidence that purchasers would rely on the results of searches in making decisions about property purchases. More specifically, in this case, it was clear that the Council knew that a purchaser of the land comprised in the title would inevitably want to know if the land comprised within the title was private land or public highway, or highway maintainable at public expense. The conditions for the creation of a duty of care in tort were therefore present, as were the conditions for liability for misstatement. Reliance has also been proven. It was entirely foreseeable by the Council that if the result of the search was wrong, a purchaser might go ahead at a price which was higher than if an accurate response had been given. This is because a purchaser would believe that the car parking spaces were private land as the title suggested and would not know that they were in fact highway. The difference between the price paid and the value without the car parking spaces was a foreseeable head of loss.

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