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Can I successfully sue a municipal consultant who prejudices a town official against me using false or incompetent advice?

For example, let's suppose I am a developer and I want planning board approval to develop a parcel. The planning board then hires an engineer to advise concerning my development. Now suppose the engineer then makes recommendations against my development and the planning board then rejects my proposal based on the engineer's recommendations.

Now, suppose that the engineer's recommendations are provably incompetent, can I then sue the consultant for harms to my project? By "provably incompetent" I mean that the engineer not only makes false conclusions in his report, but draws conclusions that are outside of his area of competency. For example, suppose in his report the engineer (who is a civil engineer) says things like "the project would cause environmental harms" even though as a civil engineer he is completely unqualified to be making remarks about the environment. Assume for the purpose of the question I can put an expert biologist on the stand that will contradict the engineer and characterize his report as incompetent in regards to its conclusions concerning the biological environment.

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  • Apart from potential lawsuits, you can certainly refer the engineer for disciplinary proceedings with the board that licenses engineers in that jurisdiction (a single violation that doesn't result in injury is unlikely to lead anywhere) and if the engineer wasn't licensed you can refer the town to the same board (they will jump all over a public entity using unlicensed engineers)
    – Ben Voigt
    Jan 20 at 16:43

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No

Since you have no contract with the engineer, your only recourse is to sue in the tort of negligence. However, such a suit will fail. The engineer does not owe you a duty of care given their overriding duty to their principal. That is, their duty to their client overrides any theoretical duty they owe to you. The issue might be different if you can prove the engineer acted with malice towards you.

Of course, if you can prove that the advice the body relied upon to make their decision was flawed, you might succeed in an appeal against that decision. However, that depends on the scope of the appeal. In common law jurisdictions, appeals are not usually heard de novo; that is, the appellate body does not consider the case from the beginning, they only decide whether the approval body followed the rules in making their decision; not whether that decision was right or wrong.

To illustrate: if the law requires that the approval body must consider an engineer's advice it would appear that they have done so and their decision will stand even if the advice was incorrect. Similarly, if the law allows you to make submissions on the advice and you did so, pointing out that the engineer had ballsed up the advice, then, providing the body considered your submission, they are free to decide that they prefer the engineer's advice notwithstanding. Only if they did something they shouldn't have done or didn't do something they should have (based on the record) will they be found to have breached the law.

Of course, specific laws can have different requirements in appeals from the common law standard and may allow the review to reconsider various facts but this would need to be spelled out in the statute.

The legal rationale for this limitation is that the legislature has decided that the approval body is the administrative decision-maker and it is not for the court to substitute their own decision instead. If the decision-maker decided the matter in accordance with the law, they are entitled to have made the "wrong" decision.

The recent Novak Djokovic cases in Australia illustrate this: the courts inquiry was limited to if the administration had followed the law, not on if the decisions were correct.

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  • re: "Only if they did something they shouldn't have done or didn't do something they should have (based on the record) will they be found to have breached the law." or if it can be shown that they made the decision corruptly (e.g. a bribe was involved)?
    – grovkin
    Jan 17 at 2:56
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    @grovkin that would fall within doing something you shouldn’t wouldn’t you think?
    – Dale M
    Jan 17 at 4:33
  • of course, but it wouldn't be in the record.
    – grovkin
    Jan 17 at 5:34
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    As always, your answer would be better if it included some citations to actual law. In the United States, at least, the duty analysis is quite a bit more nuanced than what you're describing.
    – bdb484
    Jan 17 at 16:27

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