B e f o r e :
THE MASTER OF THE ROLLS (Lord Denning)
LORD JUSTICE SACHS
and
LORD JUSTICE MEGAW.
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Between:
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LEVER (FINANCE) LIMITED
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Plaintiffs Respondents
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and
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LORD MAYOR, ALDERMEN AND CITIZENS OF THE CITY OF WESTMINSTER
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Defendants Appellants
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd.,
Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C. 2.)
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Mr. M. CHAVASSE, Q.C., and Mr. ALISTAIR DAWSON (instructed by Mr. E. Woolf, City Solicitor) appeared on behalf of the Appellant Defendants.
Mr. LEWIS HAWSER, Q.C., and Mr. MARTIN GRAHAM (instructed by Messrs. Tringham) appeared on behalf of the Respondent plaintiffs.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
THE MASTER OF THE ROLLS: This is a case for expedition. It concerns a part of St. John's Wood in which there are many high class residences. Lever (Finance) Ltd. are developers who propose to develop a piece of land. Their architect, Mr. Rotten-berg, made application for planning permission to the Westminster City Council. He attached a plan numbered 896SKC16. It was not an outline plan. It was a detailed plan. It showed the site lying between Hall Road and Melina Place. It showed the proposed development as seven houses in a terrace, and seven detached houses. These fourteen houses were designated by letters A.B.C.D.E.F.G.H.I. J. K. L. M. N. One of the detached houses, which was lettered G, was 40ft. distant from Melina Place. On the 24th March, 1969, the planning authority, the Westminster City Council, gave permission for that development in accordance with the detailed plan submitted. It permitted the erection of fourteen two-storey houses with garages on the site. But it so appears that a month later, when the architect was getting out a further site plan, he made some variations. He did so because of the building line of Hall Road. It meant that the seven terraced houses had to be moved 5ft. along. At the same time he altered the site of house G. He thought it would be better if it were in line with the other detached house F. So he moved house G a distance of l7ft. nearer to Melina place. In the original plan which had been approved, house G was 40ft. away from the houses in Melina Place. In the further site plan which the architect now submitted, house G was only 23ft. away from the houses in Melina Place. This further site plan was on a scale twice as large as the original plan. The architect sent this further site plan to the Council's Planning officer, who had been dealing with all these matters, a Mr. Carpenter. In a letter of the 25th April, 1969, the Architect, Mr. Rottenberg, wrote:
"Dear Mr. Carpenter,
With further reference to the Town Planning consent for the erection of fourteen houses at the above, I would inform you that we had a meeting with the Engineer and have established the Building Line and, for your records, I am enclosing duplicate copies of the drawing No. 896/l00B which indicates the actual setting out of the individual houses."
He enclosed the new plan. It showed the altered situation of house G, so that it was no longer to be 40ft, but only 23ft. distant from Melina Place. The new plan went to Mr. Carpenter, Unfortunately, he had lost his file. He had not got before him the original plan which the planning committee had approved. After about ten days Mr. Carpenter telephoned to the architect, Mr. Rottenberg, concerning the matter. There is a difference as to what took place. Both of them were perfectly honest. In the result, the Judge held that Mr. Rottenberg's recollection was correct. I will read, if I may, Mr. Rottenberg's version as given in his affidavit. He said:
"I pointed out the amendments in the general layout but that the most important alteration concerned the setting out of house 'G' the rear of which would now line up with the adjoining house on Plot 'F'. I told Mr. Carpenter the reason for this alteration, which was to achieve a better relationship between the individual houses as well as to ensure that the terraced houses complied with the daylighting code. I asked Mr. Carpenter if the proposals were satisfactory and he told me quite clearly that the alterations were not material, and that he therefore had no objection and no further consent was required. I made a note on the copy of the letter of 25th April, 1969, and I expressly asked Mr. Carpenter to make a note on his file that he was satisfied with the proposals."
Then Mr. Rottenberg goes on to set out the two notes. He says:
"My note which is contained on the said letter of 25th April, 1969, states: 'Local Authority telephoned pointed out alteration to general layout - said it is O.K. Most important 'G' lines up with 'F'."
Whereas Mr. Carpenter's note is as follows:
"Phoned Mr. Rottenberg who said drawing above was similar to that approved except house G moved slightly towards house F, but relationship with S.E. boundary remains unchanged. Not material."
In the upshot, the Judge preferred Mr. Rottenberg's recollection. In any case, Mr. Carpenter, according to his own note, told Mr. Rottenberg that the variations were not material. In this respect I fear that Mr. Carpenter made a mistake. That variation was material. If Mr. Carpenter had had the file before him, he would have seen it. But, not having the file, he said it was not material.
Howsoever that may be, Mr. Rottenberg acted on what be was told. He did not put in an application for further permission so as to sanction the variations. He accepted Mr. Carpenter's statement that they were not material. So he proceeded to get on with the work. Some of the houses were started in June. House G itself was started in September, 1969. The foundations were set out. The houses started to go up. At that point some of the residents in Melina Place were disturbed. They had, apparently, been assured by the architect in the initial stages that bouse G would be 40ft. away. Now, seeing that it was only 23ft. away, they made representations to the local authority, the Westminster City Council. The officers of the Council were concerned about the position. They suggested to Mr. Rottenberg that he should apply to the Council for planning permission for this variation. It would then be all in order. So on the 17th March of this year Mr. Rottenberg applied for permission for the variations. The planning officers supported the application. They reported to the Committee:
"Although it is unfortunate that the development has taken place in this form without the Council's prior consent, it is not considered that any valid planning objection can be raised at the sitting of the house as now being constructed, and permission is recommended to regularise the position."
But the planning committee rejected this recommendation. They refused to sanction the variations. They did not grant the application. No doubt they felt that the residents in Melina Place had good cause for complaint.
So the position was very awkward. The house was still going up in a position that was not sanctioned. Mr. Rottenberg then made another attempt to get over the difficulty. He suggested an alteration in the structure of house G. He proposed to remove the top storey over part of it. By so doing, the occupiers of house G would not overlook the houses in Melina Place. So on the 29th April, 1970, he made an application for this variation in house G. This application was again supported by the planning officer and by the Director of Architecture and Planning himself. But the Planning Committee rejected this variation also. They must have felt that the neighbours had a legitimate grievance at the way things had been done. On the 18th May, 1970, the committee refused permission. They went further and resolved that an enforcement notice should be issued so as to prevent Mr. Rottenberg and his clients going further with the house.
This put the developers in a quandary. The house was up. The roof was on. But the windows were not in. It had not been glazed. They did not know whether to take it down or not. So they moved the Court urgently. Within two days, on the 21st May, 1970, they issued a writ against the Westminster City Council claiming a declaration that they were entitled to complete the house on the site where it was. They asked for an injunction to retrain the City Council from their serving an enforcement notice. An interim injunction was obtained. The action was expedited. It was tried before Mr. Justice Bridge on the 18tb and 19th June of this year. He decided in favour of the developers. The City Council appeal to this Court. The appeal comes on within two months of the issue of the writ. It shows that these Courts can act quickly when occasion so requires.
The Judge made some important findings. He found that, after Mr. Rottenberg submitted his further plan (which contained the variations), Mr. Carpenter used language which led Mr. Rottenberg to believe that the proposed variations were not material an d that no further consent was required. The Judge further found that, after detailed planning permission had been given, it is a common occurrence to find that minor modifications are needed: and that when the necessity does arise, the common the practice
"is for/developers' architect to submit any such proposed modification to the planning officer. If the planning officer thinks it is not material, he says so and the development then goes forward in accordance with the modified plans as approved in that sense by the planning officer; and nobody thinks it necessary to submit a further application.....That is an eminently sensible practice."
One of the witnesses to the practice was Mr. Hirsch, who is the Chief Planning Officer of the City Council, and well qualified to speak of it. He told the Judge that it frequently happens that there is a minor variation from the plans: that it is discussed with the planning officer: that the planning officer says "in my opinion it is not material": whereupon the work goes ahead without any formal application or permission. Mr. Hirsch stressed that the officer should make it clear that it is only his opinion. He should always say: "In my opinion it is not material": so as to make it clear that he is not committing the Council. I do not know whether planning officers always remember to say "in my opinion". But the upshot of it all is that, if the planning officer tells the architect for the developer that in his opinion the variation is not material, then the developer goes on with the work as varied. He does not apply for any further permission.
Mr. Chavasse for the City Council accepted - as he must accept - that is the practice. But he says it is not binding on the Planning Committee. He says that Parliament has entrusted these important planning decisions to the Planning Authority and not to the planning officer of the Council; and, no matter that the planning officers tell a developer that a variation is not material, it is not binding on the Planning Authority. They can go back on it. Mr. Chavasse says that it is for the developer's architect to shoulder the responsibility. He must make up his own mind whether it is material. He can take the opinion of the planning officer, but it is eventually the architect's own responsibility. If the variation should turn out to be a material variation, and he has not got permission for it from the Planning Committee, then so much the worse for him. He ought not to have relied on the planning officer's opinion. The Planning Authority, he said, are quite entitled to throw over the opinion of their planning officer.
I can see the force of Mr. Chavasse's argument, but I do not think it should prevail. In my opinion a planning permission covers work which is specified in the detailed plans and any immaterial variation therein. I do not use the words "de minimis" because that would be misleading. It is obvious that, as the developer proceeds with the work, there will necessarily be variations from time to time. Things may arise which were not foreseen. It should not be necessary for the developers to go back to the Planning Committee for every immaterial variation. The permission covers any variation which is not material. But then the question arises: Who is to decide whether a variation is material or not? In practice it has been the planning officer. This is a sensible practice and I think we should affirm it. If the planning officer tells the developer that a proposed variation is not material, and the developer acts on it, then the planning authority cannot go back on it. I know that there are authorities which say that a public authority cannot be estopped by any representations made by its officers. It cannot be estopped from doing its public duty. See, for instance, the recent decision of the Divisional Court in Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd, (1962 1 Q.B. 416). But those statements must now be taken with considerable reserve. There are many matters which public authorities can now delegate to their officers. If an officer, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may be bound by it, just as much as a private concern would be. A good instance is the recent decision of this Court in Wells v. Minister of Housing and Local Government (1967 1 W.L.R. 1000). It was proved in that case that it was the practice of planning authorities, acting through their officers, to tell applicants whether or not planning permission was necessary. A letter was written by the Council Engineer telling the applicants that no permission was necessary. The applicants acted on it. It was held that the planning authority could not go back on it. I would like to quote what I then said (at page 1007):
"It has been their practice to tell applicants that no planning permission is necessary. Are they now to be allowed to say that this practice was all wrong and their letters were of no effect? I do not think so. I take the law to be that a defect in procedure can be cured and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid."
So here it has been the practice of the local authority, and of many others, to allow their planning officers to tell applicants whether a variation is material or not. Are they now to be allowed to say that that practice was all wrong? I do not think so. It was a matter within the ostensible authority of the planning officer: and, being acted on, it is binding on the Council.
I would only add this: the conversation with Mr. Carpenter took place early in May 1969. At that date there had been in force for one month at least, since the 1st April, 1969, the provisions of the Town and Country Planning Act, 1968. Section 64 enables a local authority as from the 1st April, 1969, to delegate to their officers many of their functions under the Planning Acts. An applicant cannot himself know, of course, whether such a delegation has taken place. That is a matter for the "indoor management" of the planning authority. It depends on the internal resolutions which they have made. Any person dealing with them is entitled to assume that all necessary resolutions have been passed. Just as he can in the case of a company: see Royal British Bank v. Turquand (1856) 6 E. & B. 327. It is true that section 64(5) speaks of a notice in writing. But this does not alter the fact that much authority can now be delegated to planning officers.
I do not think this case can or should be decided on the new Act: for there was no notice in writing here. I think it should be decided on the practice proved in evidence. It was within the ostensible authority of Mr. Carpenter to tell Mr. Rottenberg that the variation was not material. Seeing that the developers acted on it by building the house, I do not think the Council can throw over what has been done by their officer, Mr, Carpenter.
I can see how the trouble has arisen. Mr. Carpenter had lost the file. He made a mistake. He told Mr. Rottenberg that a variation was not material, when he ought to have told him that it was material and required planning permission. He made a mistake. That is unfortunate for the neighbours. They may feel justly aggrieved. But it is not a mistake for which the developers should suffer. The developers put up this house on the faith of this representation made to them. I do not think an enforcement notice should be launched against them. I think the Judge was right and I would dismiss the appeal.
LORD JUSTICE SACHS: This case raises questions as to the effect in law of what the plaintiffs' architect was told by one of the defendants' officers in the early part of May 1969. Those questions I have not found easy and indeed might well have preferred time to consider some aspects of the points raised, but for the fact that this case is a case in which there is urgent need for a speedy decision. On that decision depends whether the completion of a key house in a development scheme can proceed or whether it must stop for an enforcement notice to be served with a view to its being destroyed, as the Corporation appear to desire. On the facts before this Court as found by the Judge at first instance, one thing is clear: the defendant corporation's attitude as put before this Court is unfortunate and invites criticism. There may, before the trial took place at first instance, have been doubts in the defendants' mind as to what in fact took place at that conversation early in May 1969. Now however it has been determined - and it is a determination which is neither capable of being challenged nor has been challenged in this Court.
The fact is that the plaintiffs' architect, whose evidence was fully accepted, was given to understand that the corporation were satisfied with the layout of the scheme as set out in the plan which has been referred to as Plan 2: and that scheme could go ahead on that basis. I need only repeat from the testimony of the architect this passage:
"I asked Mr. Carpenter if the proposals were satisfactory, and he told me quite clearly that the alterations were not material and that he therefore had no objection and no further consent was required. I made a note on the copy of the letter of the 25th April 1969 and I expressly asked Mr. Carpenter to make a note on his file that he was satisfied with the proposal."
The relevant work started in June 1969 and it proceeded without any complaint for many months. During that period officers of the defendant corporation were continually on the site, could see what was going on and had available to them, of course, the relevant plans.
Then came the time about March 1970 when the matter was brought, at the defendants' request, before their Committee. It came before them indeed twice in a short period. On each occasion very senior officers in the Planning Department of the corporation reported: they gave as their views, that no alteration as between Plan No. 2 and Plan No. 1 was material (certainly not sufficiently material) adversely to affect the position from a planning point of view; they recommended that the scheme should proceed. None the less, the Committee decided that the house should not proceed and that an Enforcement Notice should be served.
It is to be noted that according to the architect the officers of the defendant corporation informed him that the reason that this had to go before the Committee was because of outside pressure that had been imposed and which had given a political aspect to a planning matter. With that point, of course, be it right or wrong, this Court is not concerned. It is only concerned with the result of what happened when the matter came up for the decision of the Committee. They threw overboard what their own officer had said in May 1969 though it was something which had been acted upon and which had resulted in this house getting to an advanced stage. The exact stage may perhaps not be shown precisely in the evidence, but it was not far short of reaching roof level.
Now, in this appeal, once more the defendants raise, as they raised in the Court below, a series of technical objections relating to their power to delegate to their officers to do something of a type which those officers had constantly been doing over many years — something upon which it is now said that those who dealt with the corporation could not rely. These points were pursued despite the actions of the officers having been rightly found by the trial Judge to be based on a practice which was both sensible and businesslike.
The attitude adopted in this Court could naturally tend to undermine confidence between the corporation and the professional men who deal with them. If the objections raised in this Court on procedural points were strictly applied it would result in voluminous extra papers coming into being, which would provide an architect's nightmare and a bureaucrat's morass to the advantage of nobody.
On matters such as those raised in this appeal the Court must, of course, hold a careful balance between two potentially conflicting principles. Both of these are illustrated in the judgments delivered in Wells v. Minister of Housing and Local Government (1967 1 W.L.R. 1000). On the one hand, the Court must be careful to remember "The local planning authority is not a free agent to waive statutory requirements in favour of (so to speak) an adversary: it is the guardian of the planning system." (see the dissenting judgment of Lord Justice Russell. The corporation's ability to act in the public interest must not be impaired. Hence the attitude of the Courts on the matter of estoppel. On the other hand, the Courts must likewise take care that those who deal reasonably with the Council's officers cannot afterwards be trapped by the Council saying:
"You ought to have completed a series of procedural technicalities, and, although we by our officers normally do not insist on them, we can always turn round and say that what has happened as between us and yourselves is of no effect."
That is the basis upon which my Lord, the Master of the Rolls, said in the Wells case:
"I take the law to be that a defect in procedure can be cured, and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid."
The general position on the exercise in planning matters of powers by the officers of the corporation has, of course, been affected by section 64 of the 1962 Act. That section gives power to delegate to officers of a corporation where delegation was not previously possible. For my part, I do not wish to generalise as to when an officer can be deemed to have authority for the actions which he takes when they would appear to persons dealing with him to be a natural authority to exercise. In the present case the position is that one can look at the combined effect of past practice and at the powers of delegation which have now been provided and see how the matter works in this particular instance, for we are now dealing with a conversation that took place just after section 64 came into operation. Before that date the position as regards minor alterations in a detail planning permission was referred to in the judgment in these terms:
"Further, the common practice in Westminster known to the planning authority and to developers alike is for the developers' architect to submit any such proposed minor variations to the planning officer concerned with the case. If, in that planning officer's view, the modification in question is one which is not material, he says so, and when that happens the common practice then is that the development goes forward in accordance with the modified plans as approved in that sense by the planning officer and nobody on either side considers it necessary to submit a further application for a further formal approval of the details by any Committee of the local planning authority".
No change in that procedure was made when section 64 came into force. Whatever may have been the position before that date, the unimpeded continuance of a practice that had previously existed resulted after that date in an implied delegation no less than if there had been an express delegation. In those circumstances in essence what technically happened was that there was a delegation of power to deal with an application under section 43 of the 1962 Act as to whether any further planning permission was required. For such an application it would be otiose to send in forms such as had previously been filled in, probably in triplicate, which were already available on the files of the corporation and which would show all the material necessary for dealing with the case except the modification of the original plan, and that modification was set out in the amended plan - here Plan No. 2. In those circumstances it would be appalling if every time there was such an application it was necessary to clutter the files of architect and authority alike with a mass of additional paper. Given good faith on the part of those concerned — and there is not the slightest suggestion that this is a case which was other than one of good faith — it is enough that the decision be recorded by the respective parties. I would however say for future reference that it would have been much better if there had been an exchange of short notes on the subject. But in practice the conversation of early May 1969 operated in the same way as if all section 43 formalities had been observed.
On those grounds accordingly I too would dismiss this appeal, and do not feel it necessary or indeed do I feel qualified without further consideration to go into the other interesting points which have been raised by Mr. Chavasse.
LORD JUSTICE MEGAW: I agree that this appeal should be dismissed for the reasons which have been given in the judgment of my Lord.
Appeal dismissed with costs. Leave to appeal to the House of Lords refused.
