Do Councils owe a duty to protect the public from injury when granting planning approvals?

Driver involved in fatal accident fails to establish Council owed him a duty of care

In the recent decision of Bryant v Competitive Foods Australia Pty Ltd & Ors [2018], the District Court of Queensland has reaffirmed that there is no recognised category of caselaw establishing that local governments owe a duty of care to prevent personal injury in the exercise of their statutory powers in relation to a Council planning approval process. Instead, the facts of the matter will be crucial to the question of duty.

The Accident

On 26 April 2012, the plaintiff was driving his 4WD Nissan Patrol through the Annerley Hungry Jack's carpark when he failed to stop at a pedestrian crossing and struck a three-year old child, causing fatal injuries.  The plaintiff developed a psychiatric injury, and sought to recover damages for personal injuries against three parties, one of which was the Brisbane City Council.

Claim against the Council

In early 2000, the Council, in its capacity as assessment manager, approved a development application for modifications to the site, which included the approval of the configuration of a driveway access to the carpark, and the subject pedestrian crossing immediately in front of the driveway.

The plaintiff asserted that in doing so, the Council owed a duty to the public, including the plaintiff, to exercise its statutory powers conferred by the Integrated Planning Act 1997 (Qld) ("IPA") in respect to the development application with reasonable care, so as to avoid psychiatric injury.

Court's Decision

The Court held that the duty of care as advanced by the plaintiff was not owed to him by the Council in relation to the redevelopment of the site.  

In reaching this conclusion, the Court accepted that there is no existing category of duty to prevent personal injury, owed by Councils in their guise of development approval entities.  Consequently, the Court must look at the "salient features" of the matter to determine if a duty exists, including vulnerability of, and reliance by, the plaintiff.  The Court accepted that no duty could be grounded against the Council in circumstances where the subject pedestrian crossing was on privately owned land, and the Council had no control over it, nor any involvement in its construction or maintenance.  Additionally, the trial judge confirmed that the IPA does not identify the existence of an actionable duty of care of the statutory powers confirmed by that Act. 

The decision was appealed by the plaintiff, but the appeal was subsequently abandoned. 

Implications

This case provides some reassurance to Councils exercising their statutory powers in approving a development application that they will not owe a duty to prevent all types of loss.  Rather, in the context of personal injury said to arise from the exercise of that power, Councils will only owe a duty if certain criteria are able to be satisfied by a plaintiff.  The application of those criteria will vary based on the facts of the matter.  To some extent, this will limit liability attaching to development approval processes.

If you need advice regarding when a local government will owe a duty, email Mark Williams or Alex Canavan now, or call on (07) 3243 0000.