Mr. Justice Walton said in his judgment: "Of course, not to out too fine a point on it, the reference to 'part of an essential pause in manufacture' was a lie. As stated above, Cornish Fish Fertilisers Ltd." (the company which had operated the factory in the past) "had completely ceased their trade: there was, so far as they were concerned, no pause of any description. Although at the end of the day nothing directly turns on this, this paragraph in the letter betrays an uncommendable lack of frankness" .
While at the trial the Defendant Council did not contend that the gap in the use of the premises for any manufacturing operations constituted an abandonment of whatever had been the previous use by the previous owners of the site, it is not shown on the evidence that the question of abandonment was not a potentially important question at that stage. The words used by Mr. de Savary in the passage quoted would have conveyed to the reader of the letter that the cessation of use by the previous owners was a cessation which the previous owners themselves had brought about and had intended as a temporary measure to enable the things to be done which are set out in (a) to (e). That was, simply, not so. The previous owners had had no such purpose or intention in closing down their operations. So far as they were concerned, the closure was not temporary, but final.
If it had been pleaded that there was a lie - a deliberate untruth - and if that plea had been justified, we should have thought that it would have been the end of the Plaintiffs' case as to any estoppel, or any claim to a remedy based on anything said or done in response to, or by reference to, that letter. We doubt whether it would have been necessary for the Defendant Council to show that they had in fact relied in whole or in part on a statement which would have been intended to deceive them. But whether or not this was the reason why Mr. Justice Walton said that at the end of the day nothing directly turned on it, it was not open to the Defendant Council to take that point, for they had not pleaded it. But it is right that we should say further that in our opinion the finding that it was a lie, a deliberate untruth, was not justified. It was an inaccurate and a potentially misleading statement. But we do not think that it is right to assume that Mr. de Savary, even though his explanation about it in cross-examination was far from satisfactory and might properly be described as evasive, told an untruth deliberately. Even as an unintentionally careless and potentially misleading statement, it might, if pleaded, have been destructive of the Plaintiffs' case as to estoppel; but on that view it would have been necessary for the Defendant Council to plead it, and probably to prove reliance on it. They did not plead it, nor did they call evidence to prove reliance on it. We therefore reject that submission of the Defendant Council.
We return to the letter of 8th April. The last two paragraphs read:
"Whilst, therefore, we are proceeding in the context of installing a near £.1,000,000 plant and generally dealing with the property except as to new structures requiring planning approval, on the basis of our enforceable rights, clearly we would have liked to have your confirmation in this respect, so that our joint approach shall be one of mutual interest for the common good. Mr. Smithies indicated the urgency and 1 appreciated your confirmation that given you satisfied yourself as to our rights expressed by us, we could rely upon a co-operative attitude and not one of either passive or positive obstruction by your Authority".
On the same day, 8th April, Mr. Smithies wrote to Mr. Giddens, treeing that it would be necessary to carry out site works in the - p^ demolition, al terations and refurbishing as quickly as possible. "Therefore," he said, "could you please confirm the established use so that detailed discussion can be arranged without delay".
On 13th April, Mr. Giddens replied to Mr. de Savary's letter of 8th April.
"With reference to your letter of 8th April in order that the implications of established use on this site be satisfactorily assessed I would be grateful if you would confirm the amounts of floor space previously given over to industrial, storage, office and ancillary uses within the site and if you would indicate on the enclosed plan the uses to which the various buildings were put. Upon receipt of such information I will be in a position to give you a more considered reply to your letter".
On 17th April Mr. de Savary wrote to Mr. Giddens giving certain information. On 22nd April, Mr. Smithies wrote to him, enclosing a "list of areas relating to the existing use of the above site".
Mr. Giddens's letter of 26th April, addressed to Duncan Tucker Ltd., is as follows:
"Thank you for your letter of 17th April 1976. Details of the floor areas allocated for the various commercial uses on the site when last so used have now been supplied by your architects. These figures have been checked and it is agreed that these accurately reflect site conditions. Accordingly it is confirmed that the limits of the various component parts of the commercial undertaking as now existing appears to be established".
WAS THE LETTER OF 26TH APRIL A REPRESENTATION AND, IF SO, OF WHAT?
The judge has held that that letter "must be taken to be a considered reply" There was evidence in an agreed document that it was written after consultation in which Mr. Smith and Mr. Rowland had taken part.
The Plaintiffs say that that letter, having regard to the surround-. - circumstances, was a confirmation that the Plaintiffs had existing use rights in respect of the Stable Hobba site which entitled them, without the necessity for obtaining planning permission as to use, to use the site for all purposes comprised in their project, as explained to Mr. Giddens: namely, for the production of fish oil and fishmeal and for the processing of fresh fish for human consumption. It was so understood by the Plaintiffs.
The judge's conclusion on this issue is expressed thus:
"So the matter comes down to one of construction: how would a reasonable person have understood the letter of 26th April 1976, having regard to the preceding correspondence? I freely confess that my mind has wavered a great deal in the course of this case on this point. I can well see and understand that, regarded absolutely dispassionately, the letter really says no more than that the writer agrees with the measurements of the buildings as submitted by Mr. Smithies. On the other hand, reading it in the light of the previous correspondence, I think that it can fairly be read as confirming that the Stable Hobba site has an existing use right for the purposes for which the premises were being used previously by their then occupants, the Cornish Fish Fertilisers Ltd. That is to say, having regard to my previous conclusions a Class IX right".
Then the judge says:
"However - and on this point the letter of 26th April 1976 is absolutely clear - the assurance which Mr. Giddens gave was in relation to the past - or the present - and certainly not as to the future. The words 'as now existing' cannot be glossed over; they mean what they say. Mr. Sparrow spent a great deal of time trying to persuade me that the true construction of the correspondence was that Mr. de Savary was asking 'Can I go ahead with my schemes for the site without the necessity for planning permission?'. And that Mr. Giddens's letter gave him an affirmative answer. That simply will not do. The letter was an assurance as to the existing use position, nothing more and nothing less, because it would have been so understood by a reasonable man at the time in the light of the correspondence as a whole".
We do not propose to set out the whole of the submissions developed in argument on one side or the other on this question of the meaning of the document. The Plaintiffs say that the words used should be given a sensible, business meaning; and that it is a relevant factor that the Plaintiffs were, asking for confirmation in relation to their intended use of the site as made known to the writer of the letter. In the light of what had been said at the meeting of 7th April, they were entitled to expect an answer yea or nay, relevant to the matter, and not to some different matter, such as the extent or nature of the existing use, unrelated to the intended future use. They rely also on words used by Mr. Giddens in a memorandum which he prepared for a meeting of a committee of the Defendant Council on 5th July 1976 (page l82):"Within the limits of the previously existing component parts of the undertaking (e.g. industrial, storage, offices etc.) this type of industrial use appears to be firmly established by reason of past operations"; and, later in the memorandum: "Accordingly, in view of the commitment to the larger development of the site, it is felt that no objection could be raised to this application" . ("This application" was an application for planning permission for new office accommodation).
We are unable to accept that a person familiar with the relevant facts known to both the writer and the recipient of the letter, reading the letter with reasonable care, could reasonably have read it as giving the Plaintiffs confirmation that there was an existing use right which would cover the uses contemplated by the Plaintiffs' scheme without the necessity for planning permission in respect of use. Whether Mr. de Savary's belief that the letter contained that confirmation was because he was so firmly convinced of the "incontrovertible right" that he did not read the letter with due care, or whether it was for some other reason, we are unable to see how, taking full account of the relevant circumstances and of the context of the letter itself and of the letters and conversations which had led up to it, the words "Accordingly it is confirmed that the limits of the component parts of the commercial undertaking as now existing appear to be established" could reasonably be understood to be a confirmation of that which the Plaintiffs allege it did confirm.
At the most the letter means that Mr. Giddens on behalf of the Defendant Council was satisfied that the buildings on the site had been used previously for the purposes written on the plan and that the dimensions of the respective buildings used for those various purposes were correctly shown. If and in so far as it could be interpreted as confirming any use right, it was no more than a use right for the purposes for which the site had previously been used.
It follows that no relevant estoppel, "proprietary" or otherwise, can be founded on any representation contained in that letter.
DID THE PLAINTIFFS RELY ON SUCH REPRESENTATION AS THEY ALLEGE?
Even if it were to be construed as having the meaning which the Plaintiffs placed upon it, it would still, in our judgment, not avail the Plaintiffs as an estoppel. They did not act upon it to their detriment.
The judge, as we understand his judgment, has held that the Plaintiffs, through Mr. de Savary, did rely upon what he understood to be the representation. "I think", says the judge, "he acted on that assurance, by going ahead with his projects as a whole"; and, again, "He regarded it as all important, and considered that, having obtained that confirmation, all his troubles were over". The Defendant Council submits that the judge did not intend so to hold; but they also contend by cross-notice, that, if he did so hold, he was wrong in so holding.
We regard the evidence provided by the contemporary documents and by Mr. de Savary himself in the witness-box as being overwhelmingly in support of the conclusion that, if the Plaintiffs ha d not received the letter of 26th April, or had not construed it as they did, they would have gone ahead with their planned project as they did go ahead with it, both in timing and other respects. Mr. de Savary's absolute convict i on of the incontrovertible status of his user rights in respect of his planned operations was such that he would not have been deterred by the absence of a confirmation from Mr. Giddens.
The Plaintiffs had committed themselves early in April 1976 to the purchase of the Stable Hobba site. The Plaintiffs had, before they received Mr. Giddens's letter of 26th April, entered into a contract for the purchase of a fishmeal plant for a Norwegian company for a sum of over £1,000,000, and had made a payment of £226,000 on or about 14th April as the first instalment in respect thereof. Mr. de Savary in his evidence denied that there was a contract and he sought to suggest that the payment of £226,000 had been made merely as a sort of earnest of good faith. The judge rightly held that that evidence was wholly unsatisfactory and unacceptable. The Plaintiffs had, before they received Mr. Giddens's letter, made a contract involving the demolition of buildings on the site and in fact demolition began before the letter was received. When this fact was brought to Mr. de Savary's attention in the witness-box there was a change in his evidence.
The words used in the penultimate paragraph of Mr. de Savary's letter of 8th April are incapable of any other meaning than that the Plaintiffs "are proceeding on the basis of our enforceable rights" and that the "confirmation" which they asked was not being sought in order to enable them to proceed with that with which "we are proceeding". It is simply "so that our joint approach shall be one of mutual interest for the common good". It is true that the statement "we are proceeding" is qualified by "except as to new structures requiring planning approval"; but we find it difficult to read into the paragraph, read as a whole, any suggestion that the "confirmation" sought was desired for any other purpose than that which is expressly stated in the paragraph. Why, then, should any "confirmation" given in response to that letter, whatever the "confirmation" may have meant, be treated for the purpose of estoppel as having resulted in a course of conduct which the written request for the confirmation did not suggest was to depend upon compliance with the request?
An indication to the contrary is , indeed, to be found in one of the three reasons given in a letter of 22nd April 1976 signed by Mr. de Savary from the Plaintiffs to their parent company regarding the cancellation of a tripartite agreement which had been executed on 20th April. The first reason given for the cancellation is that the agreement "does not cover the work related to the proposed Edible Fish Processing Factory at Stable Hobba". (It is to be noted, for its relevance to the issue as to the nature of the established use right, that the edible fish part of the project is here treated as being a separate factory). The third reason is that with the higher capital involvement, because of the Edible Fish Plant, the general terms of the agreement must be re-negotiated. The second reason is:
"(2) Penwith Council are requiring us to satisfy them as to established user rights under planning, before any development can be undertaken, the Agreement is incapable of implementation, until such planning clearance is given, and this aspect was overlooked by the parties when the Agreement was made".
The letter ends:
"The unexpected requirements of the Council, expressed earlier this month, will surely be satisfied very shortly, in which event we confirm that the parties will enter into a new Agreement with all possible speed as time is generally accepted as vital for critical operational dates".
A new tripartite agreement was in fact entered into, in very different terms from the cancelled agreement, on 30th April, a day or two after Mr. Giddens's letter of 26th April was received.
Whatever might have been the inference otherwise to be drawn from that letter and that transaction, the evidence of Mr. de Savary in our judgment renders it impossible for the Plaintiffs to say that they would have acted materially differently as regards the carrying out of the work and the expenditure of money if they had not received Mr. Giddens's letter of 26th April. The fact that Mr. Smithies said that the Plaintiffs acted as they did because of their understanding of the letter of 26th April does not avail the Plaintiffs if the evidence of Mr. de Savary, who was the person who made the decisions, was to the contrary. We have already referred in another context to Mr. de Savary's assertion in cross-examination that if he had been told to put in "an application for user" (meaning an application for formal approval that the Plaintiffs were entitled to the user rights which they claim to have) he certainly would have refused. If he would not have been prepared to ask for formal approval, what could have been his purpose in seeking informal approval? What his purpose was is shown by passages in his evidence.
In cross-examination, (Day 4 A.M., page 12/B), Mr. de Savary was asked about the penultimate paragraph of his letter of 8th April:
"Q. But, notwithstanding that you were submitting evidence for your view that you had an incontrovertible use right, you express at the end of that letter your intention to proceed? Is that right?
A. Yes; I was only confirming in writing the evidence that had already been submit ted at the request of Mr. Giddens. The fact that I made a submission in no way affected my judgment, but it was merely to satisfy Mr. Giddens and not to reassure myself as to my decision".
"It was merely to satisfy Mr. Giddens". "It" is the fact that he "made a submission". That last sentence cannot mean anything other than that so far as Mr. de Savary was concerned the decision had been made as to the "incontrovertible use right", and as to action on the basis of his own certainty. Mr. Giddens's satisfaction, if he were to be satisfied, was not going to operate as any reassurance to Mr. de Savary. How, in the light of that statement, if it be true -and it is evidence tendered on behalf of the Plaintiffs - can it be said that the Plaintiffs relied on Mr. Giddens's "confirmation", whatever it meant, in any material way?
The same attitude of unconcern about the attitude of the planning authority as a basis of the Plaintiffs' decision to proceed with the work - even if that attitude had been a denial of the "incontrovertible right" - is shown in a series of questions and answers towards the end of Mr. de Savary's cross-examination (Day 6, page 71/B):
"Q. Now it is clear from the evidence you have given .. that from the moment you purchased these premises at the end of March you were determined to complete the project which you had planned. Is that right? A. That is so. Determined in the sense of applying myself diligently.
Q. And by the time you entered into your contract to purchase these premises you were convinced that you had the right to do that without any way in which you could be prevented from doing that by the Local Planning Authority? A. That is right. Any legal way.
Q. There was no lawful way that the Planning Authority could prevent you from carrying out your project to fruition? A. That was my considered view.
Q. Your considered view at the moment that you entered into the contract for the purchase of the property? A. That is so."
(The date of that contract was 5th April 1976.)
"Q. And that is precisely what you set out to do: to bring your project to fruition? A. That is so."
It comes to this, on the evidence: Mr. de Savary at the meeting of 7th April and in his letter of 8th April was asking Mr. Giddens to confirm the "incontrovertible use right", solely because, if Mr. Giddens did confirm it, "our joint approach shall be one of mutual interest for the common good": not because, if Mr. Giddens did not confirm it, the Plaintiffs, controlled by Mr. de Savary, were going to refrain from pursuing the plans which they had made as they did pursue them.
OTHER MATTERS RELIED ON AS CREATING AN ESTOPPEL
As to the remaining matters which are relied upon as creating, or assisting in the creation of, an estoppel: - in particular Mr. Giddens's assurance that the Plaintiffs "could rely on positive cooperation by the Authority.. within the terms of any established user rights" (Defence, paragraph 4) or, as it is put by counsel for the Plaintiffs? "an assurance of positive co-operation involving the assurance that there would be neither positive nor passive obstruction" - we say no more than that we agree with the conclusion expressed by Mr. Justice Walton that "such expressions lack the particularity required of a statement if it is to ground an estoppel". They are what might fairly be described as the usual courtesies that one would expect to be properly extended by a planning officer.
If the letter of 26th April, with or without the oral statements as to co-operation, did not constitute a representation, reliance whereon would give rise to an estoppel, nothing that happened thereafter could give rise to an estoppel. The Plaintiffs themselves were aware of the existence of a risk. The judge refers to "the long string of warnings". It is right to say that these warnings did not emanate from the Defendant Council. Examples of them are to be found in a letter from Mr. Smithies to Mr. de Savary dated 28th May 1976, a letter in reply by Mr. de Savary dated 3rd June, a minute of Mr. Smithies of a meeting on 12th June at Mr. de Savary's office and a letter from Mr. Collins to Mr. de Savary dated 22nd June and his further letter of 26th June.
In our judgment there is no case here on which any estoppel can be founded, whether "proprietary" or otherwise, both because there was no relevant representation and, if there were, it was not acted upon.
KNOWLEDGE BY THE DEFENDANT COUNCIL OF RELIANCE BY THE PLAINTIFFS ON ANY REPRESENTATION
If, contrary to the view which we hold, and Mr. Justice Walton held, the letter of 26th April from Mr. Giddens should be interpreted as making the representation which the Plaintiffs assert, there is no sound basis for holding that the Defendant Council were aware until a short time before the Council meeting of 26th August that the Plaintiffs' conduct in proceeding with the work and incurring expenditure was (if indeed it was) because of a belief or expectation derived from Mr. Giddens's letter of 26th April. The Defendant Council, indeed, pleaded by paragraph 17 of the amended Defence that at a meeting on 5th May (that date is now accepted as the date of the meeting) Mr. Smithies stated that that letter was a formal confirmation of the established use, whereupon Mr. Giddens stated that it was not such, and Mr. Smithies declined to discuss it further. In evidence (Day 7) pages 60/61), Mr. Smithies denied that the letter was referred to at all at the meeting. As the Defendant Council called no evidence to prove the assertion of fact in their pleading, they could not ask for a finding that their assertion was proved. But that does not prove that Mr. Giddens (let alone the Defendant Council) knew of the Plaintiffs' reliance on the letter as the basis for doing what they were doing. For the Defendant Council's pleading is that that knowledge was derived from a statement by Mr. Smithies which Mr. Smithies denied having made.
It would not be right to hold that the Defendant Council knew of an expectation of the Plaintiffs founded on their interpretation of the letter of 26th April or that the Defendant Council acted unfairly in failing to do anything earlier than they did to disabuse the Plaintiffs of any such expectation.
PROPRIETARY ESTOPPEL - THE LAW
Even if we had been satisfied that the Defendant Council through their officers had represented to the Plaintiffs that all they wanted to do on the Stable Hobba site could be done because of the existing uses, planning permission being required only for new buildings and structures, and that they had acted to their detriment to the knowledge of the Defendant Council because of their representations, their claim would still have failed. There are two reasons for this: first, because they did not have the equitable right which has come to be called proprietary estoppel; and secondly, because in law the Defendant Council could not be estopped from performing their statutory duties under the Act.
Mr . Sparrow submitted that the equitable principle applied by this Court in Crabb v. Arun District Council [1976] 1. Ch. 179, should be applied in this case. What was this principle? In our judgment what was decided in that case was this: When A to the knowledge of B acts to his detriment in relation to his own land in the expectation, encouraged by B, of acquiring a right over B's land, such expectation arising from what B has said or done, the Court will order B to grant A that right on such terms as may be just. This principle is a development of what was stated in Ramsden v. Dyson (1866) LR 1 HL 129, per Lord Cranworth L.C., at page 141, Lord Wensleydale at page 168, and Lord Kingsdown at page 170. There have been a number of reported cases since then in which the principle enunciated in Ramsden v. Dyson has been applied (see, for example, Plimmer v. Wellington Corporation [1884] 9 A.C. 699, and Inwards v. Baker [1965] 2 QB 29 ). In all these cases the Court was concerned with the creation by estoppel of rights and interests in or over land. In the course of argument Mr. Sparrow was asked if he had found any cases of the Court enforcing a right created by estoppel other than one in or over land. He said he had: Evendon v. Guildford Football Club [1975] Q.B. 917, and Hammersley v. de Biel (1845) 12 Cl. & F. 45. In our judgment the first of these cases was not one in which the Court had enforced a right: it was one of promissory estoppel arising out of a contract. Employers were estopped from relying upon a defence which was inconsistent with what they had agreed with their employee when he entered their service.
The second case (which is not mentioned in the current editions of either Snell on Equity or Spencer Bower and Turner on Estoppel, both commenting on proprietary estoppel) was a decision of the House of Lords on appeal from an order of the Lord Chancellor (Lord Cottenham) affirming a decree of the Master of the Rolls. In the course of his judgment Lord Cottenham had said: "A representation made by one party for the purpose of influencing the conduct of the other party and acted on by him will in general be sufficient to entitle h i m to the assistance of this Court for the purpose of realising such representation". The House of Lords affirmed the Lord Chancellor's order. This means, submit t ed Mr. Sparrow, that the House accepted what Lord Cottenham had said and that which he had said should be applied to this case with the same kind of result, viz. that this Court should adjudge that the Plaintiffs had an equitable right to receive a money payment from the Defendant Council. The House of Lords decided as they did because they were satisfied that the Plaintiffs father, B, had agreed with one T that he would marry T's daughter and provide a jointure for her in consideration of T's undertaking to leave a sum of £10,000 in his will to hi s daughter to be settled on her and her children. B married T's daughter and provided her wit h a jointure, but T did not leave his daughter in his will the £10,000 which he had promised. B's son asked the Court of Chancery to order T's executors to pay the money. Running through the case at all its stages was a submission that there never had been more than "a rough sketch of the proposals expressly subject to revision" (see pages 62-63). The House of Lords found against this submission, adjudging that there had been a binding agreement. Lord Lyndhurst, who had succeeded Lord Cottenham as Lord Chancellor, said at page 78:
"But the principle of law, at least of equity, is this - that if a party holds out inducements to another to celebrate a marriage, and holds them out deliberately and plainly, and the other party consents, and celebrates the marriage in consequence of them, if he had good reason to expect that it was intended that he should have the benefit of the proposal which was so held out, a Court of Equity will take care that he is not disappointed and will give effect to the proposal. This is stated as a part of the arrangement; it is stated in the proposal."
Lord Brougham, in his speech, made it clear that he based his concurring opinion on the existence of a binding agreement; and Lord Campbell in his speech set out what Lord Cottenham had said and added: "Of course Lord Cottenham is here speaking of negotiations in relation to marriages". In our judgment this case had nothing to do with proprietary estoppel; it was concerned with the enforcement in equity of a binding agreement made by a father in contemplation of his daughter's marriage.
We know of no case, and none has been cited to us, in which the principle set out in Ramsden v. Dyson , and Crabb v. Arun District Council has been applied otherwise than to rights and interests created in and over land. It may extend to other forms of property: see the dicta of Lord Denning, Master of the Rolls, in Moorgate Mercantile Company Ltd. v. Twitching [1976] Q.B. 225 at page 242. In our judgment there is no good reason for extending the principle further. As Lord Justice Harman pointed out in Campbell Discount Company Ltd. v. Bridge [1961] 1 Q.B. 445 at page 459, the system of equity has become a very precise one. The creation of new rights and remedies is a matter for Parliament, not the judges.
In his reply Mr. Sparrow seemed to recognise that the reported cases did put limit s to the application of the so-called concept of proprietary estoppel. He submitted that the Plaintiffs' case was within that concept because what the Defendant Council, by their officers, had represented, had, to their knowledge , caused the Plaintiffs to spend money on or in connection with their own land which they would not otherwise have spent. On their own case they have spent money in order to take advantage of existing rights own over their/land which the Defendant Council by their officers had confirmed they possessed. There was no question of their acquiring any rights in relation to any other person's land, which is what proprietary estoppel is concerned with.
The second reason why the Plaintiffs' own case cannot succeed is this: the Defendant Council's officers, even when acting within the apparent scope of their authority, could not do what the Act required the Defendant Council to do; and if their officers did or said anything which purported to determine in advance what the Defendant Council themselves would have to determine in pursuance of their statutory duties, they would not be inhibited from doing what they had to do. An estoppel cannot be raised to prevent the exercise of a statutory discretion or to prevent or excuse the performance of a statutory duty (see Spencer Bower and Turner on Estoppel by Representation , 3rd edition at page 141, and the cases there cited). The application of this principle can be illustrated on the facts of this case: under section 29 of the Act the Defendant Council as the planning authority had to determine applications for planning permission, and when doing so had to have regard to the provisions of the development plan and "to any other material considerations". The Plaintiffs made an application for planning permission to erect a tall chimney on the sit e. When considering this application the Defendant Council had to "take into account any representations relating to that application" which were received by them following the publishing and posting of notices - see sections 26 and 29 (2). This requirement was in the interests of the public generally. If any representations made by the Defendant Council's officers before the publication or posting of notices bound it to act in a particular way, the statutory provisions which gave the public opportunities of making representations would have been thwarted and the Defendant Council would have been dispensed from their statutory obligation of taking into account any representations made to them. The officers were appointed by the Defendant Council but their members were elected by the inhabitants of their area. Parliament by the Act entrusted the Defendant Council, acting through their elected members, not their officers, to perform various statutory duties. If their officers were allowed to determine that which Parliament had enacted the Defendant Council should determine there would be no need for elected members to consider planning applications. This cannot be. Under section 101 (1) of the Local Government Act 1972 (which repealed section 4 of the 1971 Act, which re-enacted in an amended form section 64 of the Town and Country Planning Act 1968), a local authority may arrange for the discharge of any of their functions by an officer of the authority. This has to be done formally by the authority acting as such. In this case the Defendant Council issued Standing Orders authorising designated officers to perform specified functions including those arising under sections 53 and 94 of the Act. Their officers had no authority to make any other determinations under the Act. We can see no reason why Mr. de Savary, acting on behalf of the Plaintiffs, and having available the advice of lawyers and architects, should have assumed, if he ever did, that Mr. Giddens could bind the Defendant Council generally by anything he wrote or said.
Mr. Sparrow submitted that notwithstanding the general principle that a statutory body could not be estopped from performing its statutory duties, there are exceptions recognised by this Court. This case, he asserted, came within the exceptions.
There seem to be two kinds of exception. If a planning authority, acting as such, delegates to its officers powers to determine specific questions, such as applications under sections 53 and 94 of the Act, any decisions they make cannot be revoked. This kind of estoppel, if it be estoppel at all, is akin to res judicata. Mr. Woolf. on behalf of the Department of the Environment accepted that there was this exception, as did Mr. Marder in his final submissions. Lever Finance Ltd. v. Westminster L.B.C. [1971] 1 QB 222 can, we think, be considered as an application of this exception. The trial judge had found that it was a common practice amongst planning authorities, including the Defendants, for planning officers to sanction immaterial modifications to plans sent with successful applications for planning permission. This is what one of the Defendants' planning officers thought he was doing when he agreed with the Plaintiffs' architect that they could make a modification to the plans of some houses which were being erected; but Lord Denning thought that what he had agreed to was not an immaterial modification; it was a material one. He should have told the Plaintiffs that they required planning permission to make it. When the Defendants found out what had happened as a result of complaints made by members of the public who were likely to be affected by the modification, they suggested to the Plaintiffs that they should apply for planning permission. They did; and their application was refused. This Court affirmed the declaration made by the trial judge that there was a valid planning permission for the modificati on. The members of this Court gave different reasons for finding as they did. Lord Justice Sachs stated that the combined effect of the past practice, taken with the powers of delegation under section 64 of the 1968 Act, was that the oral agreement made between the Plaintiffs' architect and the Defendants' Planning Officer operated as if all the formalities of sect ion 43 of the Town and Country Planning Act 1962 (now section 53 of the Act) had been complied with. The other members of the Court (Lord Denning, Master of the Rolls, and Lord Justice Megaw) made no mention of this reasoning. It follows that it was not the ratio decidendi of the judgment. We do not agree with it, as appears later in this judgment. Lord Denning rested his judgment on estoppel and delegation. After referring to the authorities setting out the general rule that planning authorities cannot be estopped from doing their public duty, he went on as follows at page 23O/D:
"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".
He went on to refer by way of illustration to Wells v. Minister of Housing and Local Government (1967) 1 W.L.R. 1000, which was concerned with what this Court adjudged to be an informal application made under section 43 of the 1962 Act. It is pertinent to note too that Lord Denning used the words "may be bound". Lord Justice Megaw said that he agreed with the reasons for judgment given by Lord Denning. This case, of course, binds us unless there is in the reasoning an element which can be said to be "per incuriam". In our judgment it is not an authority for the proposition that every representation made by a planning officer within his ostensible authority binds the planning authority which employs him. For an estoppel to arise there must be some evidence justifying the person dealing with the planning officer for thinking that what the officer said would bind the planning authority. Holding an office, however senior, cannot, in our judgment, be enough by itself. In the Lever Finance Ltd. case there was evidence of a widespread practice amongst planning authorities of allowing their planning officers to make immaterial modifications to the plans produced when planning permission was given. Lever Finance Ltd.'s architect presumably knew of this practice and was entitled to assume that the practice had been authorised by the planning authorities in whose areas it was followed. The need for some evidence of delegation of authority can be illustrated in this way. Had Lever Finance Ltd.'s architect produced plans showing material and substantial modifications to the planning permission for a large development in Piccadilly Circus already granted, he could not sensibly have assumed that the planning officer with whom he was dealing had authority to approve the proposed modifications wit hout putting them before the planning authority. Whether anyone dealing with a planning officer can safely assume that the officer can bind his authority by anything he says must depend on all the circumstances. In Lever Finance Ltd. Lord Denning said at page 231/B: "Any person dealing with them" (i.e. officers of a planning authority) "is entitled to assume that all necessary resolut i ons have been passed". This statement was not necessary for the conclusion he had reached and purported to be an addendum. We consider it to be obiter: with all respect, it stated the law too widely.
In this case there was no evidence of any relevant delegations of authority save in relation to applications under sections 53 and 94. We deal later in this judgment with the Plaintiffs' submissions about the operation of those sections.
We can deal with the second exception shortly. If a planning authority waives a procedural requirement relating to any application made to it for the exercise of its statutory powers, it may be estopped from relying on lack of formality. Much, however, will turn on the construction of any statutory provisions setting out what the procedure is to be. Wells v. Minister of Housing and Local Government is an example of the exception. Both Mr. Woolf and Mr. Marder submitted that this case was wrongly decided. Mr. Woolf said that the dissenting judgment of Lord Justice Russell was to be preferred and both he and Mr. Marder reserved the right to argue this point elsewhere. Save in relation to the Plaintiffs' submissions as to the operation of sections 53 and 94 on the facts of this case, this exception cannot have any application to this case.
The extension of the concept of estoppel beyond these two exceptions, in our judgment, would not be justified. A further extension would erode the general principle as set out in a long line of cases of which the decision of the Privy Council in Maritime Electric Company Ltd. v. General Dairies Ltd. [1937] AC 610, and the judgment of the Divisional Court in Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd. [1962] 1 Q.B. 416, are notable examples. Parliament has given those who are aggrieved by refusals of planning permission or the serving of enforcement notices a right of appeal to the Secretary of State - see sections 36 and 88 of the Act. He can hear evidence as to the merits and take into account policy considerations. The Courts can do neither. The application of the concept of estoppel because of what a planning officer had represented could result in a Court adjudging that a planning authority was bound to allow a development which flouted its planning policy, with which the Courts are not concerned.
There is another objection to any extension of the concept of estoppel which is illustrated by the facts of the Lever Finance Ltd. case. If the modifications which were permitted by the planning officer in that case had been properly to be regarded as immaterial, no problem of general principle would arise. But the Court regarded itself as competent to decide as to the materiality and, despite the submission to the contrary by the successful Plaintiffs, held that the modifications were material. On what basis of evidence or judicial notice the Court reached that conclusion, we need not stay to consider. We assume both that the Court had jurisdiction to decide that question, and that, on the facts of that case, their decision as to materiality was right. But then comes the difficulty, and the real danger of injustice. To permit the estoppel no doubt avoided an injustice to the Plaintiffs. But it also may fairly be regarded as having caused an injustice to one or more members of the public, the owners of adjacent houses who would be adversely affected by this wrong and careless decision of the planning officer that the modifications were not material. Yet they were not, and it would seem could not, be heard. How, in their absence, could the Court balance the respective injustices according as the Court did or did not hold that there was an estoppel in favour of the Plaintiffs? What "equity" is there in holding, if such be the effect of the decision, that the potential injustice to a third party, as a result of the granting of the estoppel is irrelevant? At least it can be said that the less frequently this situation arises the better for justice.
In Brooks & Burton Ltd. v. The Secretary of State for the Environment (1977) Knight's Local Government Reports 285? Lord Widgery, Lord Chief Justice, adverted to extending the concept of estoppel. At page 296 he said:
"There has been some advance in recent years of this doctrine of estoppel as applied to local authorities through their officers, and the most advanced case is the one referred to by the inspector, namely Lever Finance Ltd. v. Westminster (City) London Borough Council . I do not propose to read it. It no doubt is correct on its facts, but I would deprecate any attempt to expand this doctrine because it seems to me, as I said a few minutes ago, extremely important that local government officers should feel free to help applicants who come and ask them quest ions without all the time having the shadow of estoppel hanging over them and without the possibility of their immobilising their authorities by some careless remark which produces such an estoppel" .
We agree with what he said.
THE STATUTORY POSITION
We turn now to "the statutory position". Mr. Sparrow submits that besides their claims based on estoppel the Plaintiffs have rights and remedies arising from the planning legislation and the decisions of the Courts as to the exercise by statutory authorities of their powers and duties. The consideration of these rights and remedies overlaps at one point with the estoppel claim, but the Plaintiffs could succeed on the "statutory position" even if they fail on estoppel. The essence of this part of the Plaintiffs' case is that the decisions made by the Defendant Council on 26th August were invalid, a "nullity", an "abuse of their powers" and "unlawful". We have already said that there was no fraud or malice on the part of the Defendant Council or their officers. In this part of the case, therefore, the phrase "abuse of powers" means no more than that the Defendant Council have mistakenly acted in a way which was not permitted by their powers.
Sections 53 and 94 of the Act
In addition or in the alternative to their contention that the letter of 26th April is the foundation of an estoppel, the Plaintiffs contend that it was a "determination" under section 53 of the Act,or alternatively an "established use certificate" under section 94 of the Act. Mr. Marder accepts that if it was such a determination or certificate the Council would be bound by it; under their Standing Orders the power to make such decisions is delegated to their officers.
Section 53 (1) provides as follows:
"53.(1) If any person who proposes to carry out any operations on land, or to make any change in the use of land, wishes to have it determined whether the carrying out of those operations, or the making of that change, would constitute or involve development of the land, and,if so, whether an application for planning permission in respect thereof is required under this Part of this Act, having regard to the provisions of the development order, he may, either as part of an application for planning permission, or without any such application, apply to the local planning authority to determine that question".
Section 53 (2) applies in relation to applications and determinations under this section a number of other provisions of the Act, relating to development orders (sections 24 and 31(1)) y determinations by local planning authorities (section 29 (1))) the power of the Secretary of State to give directions to local planning authorities (section 31 (1)); the keeping of registers of applications which are open for inspection by the public (section 34(1) and (3)), the powers of the Secretary of State to call in applications (section 35)- and the right of appeal to the Secretary of State (sections 35 and 36).
The Town and Country Planning (General Development) Order 1973 (which in these respects is substantially reproduced in the General Development Order of 1977) makes provision for the procedure to be followed on section 53 applications and determinations. Articles 6(2) and 7(2), (3) and (4) provide for the steps to be taker the provision in each case being governed by the word "shall".
It is pleaded in paragraph 3 of the amended Defence that on 24th March 1976 Mr. Giddens invited Mr. Bushell to submit an application under section 53 but neither Mr. Giddens nor Mr. Bushell was called and there was no other evidence of such an invitation. We think that paragraphs 5 and 9 of the Statement of Claim can be treated as alleging that the letters of 8th and 26th April were an application and determination under section 53 but there is no claim for any declaration relating to that section. The judge did not deal with this in his judgment and the point is not raised in the Notice of Appeal. However, we allowed it to be argued. Mr Sparrow does not contend that the letter amounted to a determination that no planning permission was required in respect of the Plaintiffs' building operations, but he contends that it was a determination either that the user contemplated by the Plaintiffs' project did not constitute development or that no planning permission was required for such development.
It seems to us that section 53(2) of the Act and Articles 6(2) and 7(2), (3) and (4) of the General Development Order of 1973 contemplate a considerable degree of formality in applications and determinations under section 53. But Mr Sparrow relied on the decision of the majority of this Court in Wells v. Minister of Housing and Local Government [1967] 1. W.L.R. 1000, and on the judgment of Lord Justice Sachs in Lever Finance Ltd. v. Westminster L.B.C. [1971] 1 QB 222, as establishing that no particular formalities are required.
In Wells the Plaintiffs had applied for planning permission for the erection of a concrete batching plant 27'6" in height. The Council Engineer and Surveyor replied by letter saying: "I am instructed to inform you that the works proposed can be regarded as permitted development under Class VIII of the ..... Development Order, and it is therefore not proposed to take any further action on your application...". The Plaintiffs then changed their minds and decided to build a plant 48' high. Their architect assumed that this new proposal would be covered by the Council's letter in respect of the 27'6" plant and applied for bye-law consent in respect of the 48' plant. The Council granted bye-law consent on a form which contained the words: "No action should be taken here-under till the approval of the Town Planning and Licensing Authority have been obtained" (sic); these words had been struck out but were still legible. The majority of the Court (Lord Denning, Master Russell of the Rolls,and Lord Justice Davies, Lord Justice/dissenting) held that there had been a valid application and determination under section 43 of the 1962 Act (now section 53) that planning permission was not required for the 27'6" plant, but the Court held unanimously that there had been no application for planning permission, nor any application or determination under sect ion 43* in respect of the 48' plant.
In Lever Finance (the facts of which have already been stated), Lord Justice Sachs took the view that what had happened could and should be treated as a valid application and determination under section 43 of the 1962 Act that no further planning permission was needed for the change in the position of the house (see page 234). But the majority of the Court (Lord Denning, Master of the Rolls, and Lord Justice Megaw) put their decision on different grounds, which have been considered earlier in this judgment.
This Court is, of course, bound by the ratio of the decision of the majority in Wells , though if we may respectfully say so, we find the dissenting judgment of Lord Justice Russell very powerful. In our view, the ratio on which Lord Denning and Lord Justice Davies were agreed was that a formal written application for a determination under section 43 (now section 53) was not necessary and that an application for planning permission impliedly contains an invitation to determine under section 43 that planning permission is not required (see Lord Denning at page 1008/B-C and Lord Justice Davies at page 1010/B-D). But all three members of the Court held that there was no application or determination under section 43 in respect of the 43' plant, Lord Denning saying (at page 1008/F): "Ready as I am to waive irregularities and procedural defects, I think that to satisfy section 43 there must be at least a positive statement in writing by or on behalf of the planning authority that no planning permission is necessary".
If we are right in our understanding of the ratio of the majority in Wells, it does not bind us to hold that there was in the present case an application under section 53; there was in April 1976 no application for planning permission. Although the judgment of Lord Justice Sachs in Lever Finance would, we think, greatly extend beyond Wells the permitted degree of informality in applications and determinations under section 53) it is, as we have already said, not binding on this Court. In our judgment, the decision of the majority in Wells as to the 27'6" plant should not be extended beyond cases in which there has been an application for planning permission; we feel supported in this view by the unanimous decision as to the 48' plant.
But even if this is wrong, and some communications from a proposed developer to a planning authority other than an application for planning permission can constitute an application under section 53; we should find it impossible to hold as a matter of construction of the let ters of 8th and 26th April that they constituted an application or a determination under section 53- As to the latter, we refer again to what Lord Denning said in Wells at page 1008/F, which we have already quoted.
We also reject the alternative contention that the letter of 26th April was an established use certificate under section 94 of the Act. This, too, is not pleaded in or raised in the Notice of Appeal. Mr. de Savary emphatically (indeed explosively) denied the allegations in the amended Defence that the Plaintiffs had been asked by Mr. Giddens in April and May to apply for a section 94 certificate (which he called "the second great lie"); he said that if he had been asked then he would have refused, and would have refused in July if he had not been told that it was a pure formality (see Day 6, page 75/F-G). But even if he did not intend that his letter of 8th April should be an application under section 94 we will assume that in law it could be capable of being such an application. The purpose and effect of a section 94 certificate is that it is conclusive evidence "as respects any matters stated therein" for the purposes of an appeal to the Secretary of State against an enforcement notice served in respect of any land to which it relates (section 94(7)); the benefit of the certificate runs with the land. One would therefore expect that it would be required to be a formal document, and the Act in Schedule 14 and the General Development Order 1973 in Article 18 contain provisions to that effect as to the application and the certificate. We do not think we need refer to them in detail. But they include provisions that an application "shall not be entertained" unless it is accompanied by a certificate containing the prescribed particulars (see Schedule 14? paragraph 3(1) and Article 18(2)), which the letter of 26th April was not, and that established use certificates "shall be issued" in the form set out in Part II of Schedule 6 to the General Development Order, which of course does not bear the slightest resemblance to the letter of 26th April. Even if these formal defects are not in themselves a complete answer to this contention, as in our view they are, we think it is impossible to construe the letter of 26th April as a certificate under section 94-We cannot see that it is capable of being conclusive evidence of anything.
EXISTING USE RIGHTS
But even if the letter of 26th April was not a determination under section 53 nor an established use certificate under section 94 the Plaintiffs were entitled to the benefit of whatever were in fact and in law the existing use rights in respect of the Stable Hobba site. We accept Mr. Marder's definition of "existing use right", which Mr. Sparrow said he did not contest: the right to continue using land or buildings immune from enforcement action, whether the use is lawful or unlawful, but subject to abrogation on payment of compensation, and including no right to carry out development, whether by operations or change of use (except as stated below).
Although no industrial operations had been carried on at the site for a year before the Plaintiffs bought it, they were entitled to resume the use which Cornish Fish Fertilisers Ltd. had made of it; Mr. Justice Walton found that there was insufficient evidence of abandonment (Judgment, page 45/A), and Mr. Marder accepts this finding.
We have already stated the facts as to the use by Cornish Fish Fertilisers Ltd. and said that we agree with Mr. Justice Walton's conclusions that it was a Class IX use and that it did not include the Plaintiffs' proposed fresh fish process, which would have been a Class IV use.
This existing use entitled the Plaintiffs to various rights. As to use, they could resume the use made of the site by Cornish Fish Fertilisers Ltd., or change that use to another use within Class IX, or intensify it within that Class to an extent which would otherwise amount to a change of use. As to building or other "operations", they were only entitled to do what is permitted by section 22(2)(a) of the Act or by Article 3 of and Schedule 1 to the General Development Order, which only allow minor works of maintenance, improvement or alteration. There is no doubt that the carrying out of the Plaintiffs' project required "operations", including new buildings, amounting to "development"going beyond what is so permitted, and for which planning permission was required.
On the second day of the hearing before this Court (28th February) Mr. Sparrow accepted that nobody has a right to a planning permission, but said that what a person does have is a right to a proper adjudication. He said that in a case where there is an existing use right this right to a proper adjudication can produce an effect "approximating" to a right to planning permission. "The local planning authority must decide responsibly and for good reason - in short, lawfully". He said that where there is an application for planning permission for a building to exploit an existing use, the planning authority is not entitled to refuse it because it objects to the use; it is only entitled to object to the building on matters of detail. He suggested that the position was analogous to a grant of outline planning permission, leaving only matters of detail to be considered. He said that a planning authority is not entitled to revoke or nullify an existing use right without compensation by saying "No" to every one of a series of detailed designs. He repeated that "in the end the applicant will have something approximating to a right to permission". In his reply, he said that on a true analysis an existing use right is a right to use the land in question for a building of whatever kind is being used on the land in the particular case - in this case for a factory for the manufacture of manure within Class IX. The existing use right therefore includes a right to have a building (in this case a factory), and the local planning authority is bound to give permission for the same sort of building (e.g. a house or a factory), subject only to matters of detail. An existing use right is thus analogous to an outline planning permission. He said that the Plaintiffs' four applications for planning permission were refused only on the ground of use; that it should be inferred that the Council had no objection to the buildings as such; and that "there was in truth an approval of the four applications which the Court can recognise".
Mr. Marder described Mr. Sparrow's submission as a "fundamental misconception". Mr. Woolf, too, invited us to reject it. It is clear that Mr. de Savary was firmly convinced that it was right. As Mr. Justice Walton said: "Having seen Mr. de Savary in the witness-box, it is quite evident that he was from first to last under the firm impression that (once he had obtained confirmation of the existing use right) nothing else mattered; that once he had obtained clearance of Class IX rights he was entitled to all planning permissions necessary to enable him to exploit that right, and that they could not be withheld save perhaps an unimportant matters such as siting and finishes" (Judgment, pages 55/G-56/A).
In our judgment Mr. Sparrow's submission is wrong. We think it would be surprising if it was right. In whichever of Mr. Marder's "species" an existing use right has its origin, it has been begun without the grant of planning permission, so that the planning authority has never had the opportunity of considering its merits or demerits from a planning point of view. Its effect is to confer a "status of unenforceability"; although it is called a "right" it is really an immunity - a protection against enforcement action to stop it. In our view, it does not confer any positive rights in relation to an application for permission for development which needs such permission. We reject Mr. Sparrow's analysis in his reply of the nature of such rights (which seems to ignore the fundamental distinction between development by "use" and development by "operations") and his analogy with the grant of an outline planning permission for "operations". The "right" is to use an existing building for a particular purpose, not to have another building for that use. An existing use is obviously one of the "material considerations" to which a planning authority is required by section 29(1) of the Act to have regard when considering an application for permission for buildings, and it may be a very important one. The planning authority must take into account all the relevant considerations, including any exist ing use, but it is not bound to treat the existing use as decisive of an application for permission for buildings to exploit that use. The authority is, we think, entitled to say in its discretion - "We cannot stop this use (except with compensation), but on planning considerations we do not like it and we do not wish to encourage or extend it ei ther in nature or duration; the applicant can go on exercising it in his existing buildings, with the benefit of the rights given to him by section 22(2)(a) and the General Development Order, but we are not going to permit him to put up any new buildings". Suppose the applicant has an existing Class IX use. He is entitled (in the sense that he is immune from enforcement action to stop it) to change to another, more objectionable, Class IX use or to intensify his present use to an extent which would otherwise constitute development, but to enable him to do so he needs new buildings. We can see nothing wrong in a planning authority refusing permission for the new buildings because they object (e.g. on amenity grounds) to the proposed change of use or intensification which the applicant is entitled to make but for which the new buildings are necessary or desirable. The applicant can go on using his old buildings, and if they get into such a state that they can no longer be patched up and planning permission is still refused, he may be entitled to exercise the rights given by Part IX of the Act (purchase notices).
THE COUNCIL'S DECISIONS OF 26TH APRIL
Mr. Sparrow's attack on the validity of the Council's decisions of 26th August was based on the well-known principle stated by Lord Greene, Master of the Rolls, in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 at pages 228-231 and 233-234, and by Lord Reid in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147 at page 171. In the latter case Lord Reid said:
"It has sometime s been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. I understand that some confusion has been caused by my having said in R. v. Governor of Brixton Prison, Ex parte Armah [1968] A.C. 192, 234 that if a tribunal has jurisdiction to go right it has jurisdiction to go wrong. So it has, if one uses 'jurisdiction' in the narrow original sense. If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law" .
Mr. Sparrow's main submission was that the decisions were based (and he said based only) on considerations relating to the use which the Plaintiffs proposed to make of the sit e. He said that the Council were not entitled to take into account considerations relating to use because of the estoppel (this is the point at which the two branches of the case overlap), or because of their determination under section 53 or section 94, or both because of the estoppel and the determination. Further, they made their decision on a wrong basis because they decided on the basis that the existing use was a Class IV use when it was a Class IX use. The decisions are therefore invalid because the Defendant Council took into account matters which it ought not to have taken into account and failed to take into account matters which it ought to have taken into account.
The decisions of 26th August were made by the full Council. Before that, the problems had been considered at three meetings, on 10th, 16th and 18th August, of a special Joint Sub-Committee of the Development Services and Environmental Services Committees. On 26th August the Council had before it reports of those meetings, copies of the relevant correspondence (including the letter of 26th April) and reports and advice from their officers, including in particular Mr. Rowland. All twelve of the members of the Sub-Committee who had been at the meeting of 18th August were also at the meeting of 26th August.
At its meeting of 10th August the Sub-Committee had before it a report by Mr. Rowland (page 288). In that report he advised that:
(a) the use made of the site by Cornish Fish Fertilisers Ltd. had been a Class IV use and that the Plaintiffs' application for an Established Use Certificate for Class IX use could therefore not be granted; he also took the point that the previous use had not continued uninterrupted or been "subsisting" at the date of the application;
(b) that the Plaintiffs' proposed use required the grant of planning permission for change of use;
(c) that even if no change of use was involved planning permission was required because of the intensification of use.
He suggested that the Plaintiffs should be invited to submit a planning application "for the whole project" within fourteen days and that if they refused or failed to do so the application in respect of the works in progress should be refused and stop and enforcement notices served. At the meeting of 10th August he repeated his advice under (a) and (b) and "stated that the applicants were clearly in breach of planning control as established user rights did not permit the erection or alteration to buildings" (page 309). The Sub-Committee resolved:
"(1) That the developers be informed that on the available information the Council is not satisfied that the claim of established use has been substantiated and that for the reasons contained in the solicitor's report it is highly unlikely that an Established Use Certificate could be granted for any other use than a General Industrial Class IV use.
(2) That the developers be invited to submit an application within fourteen days for planning permission relating to the whole project.
(3) If the planning application detailed in (2) above is not submitted within fourteen days, or the developers indicate within that time that they do not wish to submit such an application the Sub-Committee RECOMMEND that the Chief Planning Officer be authorised to refuse planning permission in respect of the four current applications and the District Secretary be authorised to serve Enforcement and Stop Notices in respect of those works at present being carried out on the site without the benefit of planning permission as soon as technically possible".
Mr. Rowland accordingly wrote to the Plaintiffs his letter of 13th August (page 328) which Mr. Sparrow described as "the bombshell". At the meeting of 16th August (page 334) y "the Sub-Committee was advised that since its last meeting a petition had been received from a large number of Newlyn Coombe residents objecting to the proposals on various grounds including odours, fumes and traffic generation". It is recorded in the Minutes that "members expressed concern at the lack of information forthcoming from the applicants and suggested therefore that an urgent meeting should be called with them to discuss the development of this site". The Sub-Committee resolved that the applicants should be asked to attend a meeting with the Sub-Committee to discuss their proposals before Friday, 20th August, and that a special meeting of the Council should be convened at the end of the fourteen day period given to the Plaintiffs to submit an application relating to the entire project to consider the position in respect of this development. The meeting of the Sub-Committee with the Plaintiffs took place on 18th August (page 341), the Plaintiffs being represented by Mr. de Savary, Mr. Smithies and Mr. McCloughlin. The Sub-Committee had before it Mr. de Savary's letter of 17th August (page 337), in which he contended that the letter of 26th April was a confirmation of existing user right for the Plaintiffs' project and said that "I am most reluctant to make a Planning Application, which in itself might be used as evidence that we recognised that we had no established right". At the meeting, the Sub-Committee "was advised that the information contained in the letter did not, in any way, change the opinion of either the Council's Solicitor or the Chief Planning Officer", and the solicitor again advised that even if a Class IX use was established the intensification of use was such that planning permission would still be required. It was also reported that a further petition had been received from the people of Newlyn objecting to the proposals. Mr. de Savary then joined the meeting, and, as Mr. Justice Walton said: "put the Plaintiffs' case in full for its being allowed to continue with its proposed project and being granted all necessary planning permissions to achieve that end" (see the Minutes, pages 341-343)* He specifically referred to the letter of 26th April (see page 349). He repeated his unwillingness to submit a planning application for the entire project. The Sub-Commit tee resolved that a full meeting of the Council be convened for 26th August to consider the recommendations made by the Sub-Committee on 10th August.
At a meeting between Mr. de Savary and Mr. Rowland after the Sub-Committee meeting it was agreed that Mr. Smithies should obtain and submit to Mr. Rowland further statements from people formerly associated with Cornish Fish Fertilisers Ltd. (see pages 350 and 375) and this was done, including statements from Mr. Parsons and Mr. Weidner (pages 805-808).
At its meeting on 26th August the Council had before it, besides the documents to which we have already referred , a Joint Report of the Chief Officers (page 355) which referred to Mr. Rowland's report for the Sub-Committee meeting of 10th August (page 288), and said that "The officers concerned are unanimous in their opinion that Enforcement Action and Stop Action should be the course to be taken as the Chairman of the Company has intimated that he is not prepared to submit a Planning Application to cover the whole site". They also had a Supplementary Report by Mr. Rowland (page 375). By that time Mr. Rowland had seen the statements of Mr. Parsons and Mr. Weidner, which he said confirmed his view that the previous Class IX user had ceased in 1972 when the process was changed and been replaced by a Class IV use; he dealt at some length with intensification and expressed the conclusion that there would be an intensification of use amounting to development for which planning permissi on would be required; he said that an opinion had been obtained from counsel, who had advised that the established use was Class IV so that planning permission was required for the change to the projected Class IX use, but that in his opinion there was not a sufficient degree of intensification to amount to development, with which Mr. Rowland disagreed; and he informed the Council of the state of the consultations with the Water and Highway authorities.
The Resolutions passed by the Council on 26th August were:
"(a) The four planning applications be refused on the grounds that:
(i) they are premature and cannot be considered in isolation from the proposed Class IX use which does not have the benefit of planning permission or an Established Use Certificate;
(ii) at the recommendation of the South West Water Authority; and
(iii) to allow the applicants to submit an application for planning permission covering all the proposed development on site;
(b) the application for an Established Use Certificate be refused.
(c) The District Secretary be authorised to serve Enforcement Notices and Stop Notices in relation to the building works which are proceeding on sit e without planning permission; and
(d) the developers should be informed that the projected use of
the site amounts to an intensification of use for which planning
permission is required in any event" .
The grounds for refusal of planning permission stated in the notices of refusal sent to the Plaintiffs (pages 776,786,796 and 884) were different from those stated in the Resolution. At one stage Mr. Sparrow suggested that this had some sinister significance, but in the end we do not think it is of any importance. Mr. Sparrow accepted that in deciding what were the Council's reasons for refusal we should look at the Resolution, though he said that the reasons stated in the Notices were relevant as showing that the water problem (which is not mentioned) was not really significant. Mr. Marder said that on the legislation it was clear that the effective decision was the Resolution and not the Notices (see sections 29(3) and 3KD(d) of the Act and the General Development Order 1973? Article 7(3X4)), though the author-i ties were difficult to reconcile; but that so far as this case was concerned Norfolk County Council v. Secretary of State for the Environment [1973] 1 W.L.R. 1400 was authority that it is legitimate to look at the Resolution to see what the decision was. We accept this approach.
In view of our decision that the letter of 26th April did not found an estoppel and was not a determination under section 53 or section 94; the foundation of that part of Mr. Sparrow's argument disappears. Even if (contrary to our view) the letter of 26th April did found an estoppel or amount to a determination, we are not satisfied that this would have made the decisions invalid. The letter was among the papers before the Council. It must have been taken into account by the Sub-Committee at its meeting of 18th August, where it was specifically relied on by Mr. de Savary (see pages 337, 342 and 349), and all the Councillors who were present at that meeting were also present on 26th August. If they mistakenly failed to realise the effect in law of that letter we doubt whether that would be enough to make the decision invalid on the Wednesbury principle. After all, there have been many days of argument before Mr. Justice Walton and this Court about what its true effect was.
But it appears from ground (a) (i) that one of the reasons for the Council's decision was that they thought the existing use was not a Class IX use. Mr. Justice Walton and this Court have held that it was. As we understand it, Mr. Sparrow did not place great reliance on this point, but we must deal with it. It is clear that the Council did not fail to take into account the question what the exist i ng use was. They were advised by Mr. Rowland and counsel that it was Class IV (it seems that Mr. Rowland had in mind the point about "putrescible" - see pages 374 and 375). We are not satisfied that this mistake, on what Mr. Justice Walton described as "an extremely-difficult question" (Judgment, page 43/E) of mixed law and fact could make the decision of the Council invalid on the Wednesbury principle . But in any event planning permission for a change of use was required, in view of our decision that the proposed fresh fish use was not covered by the existing Class IX use. In our view, the Council's decision would inevitably have been the same if they had realised that the existing use was Class IX and not Class IV.
All the other reasons for refusal of planning permission seem to us to relate to considerations which were essentially within the discretion of the Council as local planning authority. They were entitled to take the view that the applications were premature, if only because the vitally important matters of water supply and effluent disposal had not been settled (see pages 299, 368 and 378), nor had the requirements of the Highway Authority been satisfied (page 365). Mr. Sparrow said that these matters could have been dealt with by a grant of permission subject to conditions, or by granting planning permission and letting the Plaintiffs go ahead with the building at the risk of not being able to operate because of difficulties about water, effluent and highways. Perhaps they could, but clearly the Council were fully entitled to decide not to deal with them in that way. The arrangements with the Water and Highway authorities were not completed until about December; the question whether or not these arrangements involved any "operations" for which planning permission was required was not investigated before us, but in August it was an obvious possibility that they might. The Council were not finally shutting the Plaintiffs out; they were saying that the applications with which they were dealing were premature, but were inviting the Plaintiffs to submit a further application (Grounds (a)(i) and (iii)). In our view they were entitled to decide, in their discretion, that they wished to consider the project as a whole, including the change of use which was actually involved (though not in the respect the Council thought) and the arrangements for water, effluent and highways. They were wrong in Resolution (d) (intensification), having regard to the Class IX use and to Article 3(1) of the Use Classes Order, but this does not seem to be given as a reason for their other decisions. What we have said about the refusals of planning permission applies equally to the refusal of the Established Use Certificate; having regard to the fresh fish use, the Council could not grant the certificate the Plaintiffs wanted. There is Mr. Marder's further point that even if (contrary to his submissions) the right in respect of which the Plaintiffs applied on 8th July 1976 for a sect i on 94 certificate (page 797) had existed when Cornish Fish Fertilisers closed down, it was not "subsisting" at the date of the application (see section 94(2), proviso). Mr. Rowland had this point in mind (see pages 222 and 288), and it is the ground given in the Notice of Refusal (page 871), though no ground was stated in the Resolution. We do not think we need decide whether Mr. Marder's submission about this is right; it is enough to say that it is not so unreasonable that no reasonable planning authority could have acted on that view. If the refusals of planning permission were not invalid, there is no ground for saying that the Stop or Enforcement Not ices were. Even if the refusals of planning permission were invalid, this would not in our view make the Stop and Enforcement Notices invalid. The invalidity of the refusals would not constitute the grant of permission and the buildings would still have been put up without permission and in breach of planning control.
Mr. Sparrow also submitted that the decisions of 26th August were invalid for other reasons, among them:
(a) because they were made in pursuance of the "plan" alleged in paragraph 23 of the re-amended Statement of Claim; we have already held that there was no such plan.
(b) because they were made with the object of "disciplining" the Plaintiffs; in our judgment they clearly were not.
(c) because they were made in disregard of natural justice because Mr. Rowland had told the Plaintiffs (as he had - see pages 328 and 373) that they had till 30th August to put in a fresh application. But Mr. de S avary had already made it clear before 26th August that he had no intention of making such an application (see pages 338,343,353 and his evidence, Day 6, page 3S/D). The Council had no reason to expect that he would change his mind. It is plain from our statement of the facts that the Defendants did not fail to comply with the requirements of natural justice.
REMAINING QUESTIONS
In view of our conclusions on the points with which we have already dealt, several other questions which were fully argued do not arise - the remedies which should have been granted if we had decided otherwise on some or all of these points; the effect of sections 88 and 243 of the Act; and the effect of section 177. These points, and especially Mr. Woolf's arguments on them, raise important and difficult questions, and we think it better to leave decisions on them until they do arise in some other case rather than to express opinions about them in the form of obiter dicta.
We can deal very shortly with the Plaintiffs' claims for damages based on "misfeasance" or "abuse of powers", negligence or the "innominate tort".
We have held that there was no "abuse of powers" by the Defendant Council in the only sense in which that phrase can be used in this case. Further, we are very far from satisfied that "abuse of powers" would give rise to a cause of action in the absence of fraud or malice.
As to negligence, it was never made clear to us what was the negligence alleged; paragraph 27 of the re-amended Statement of Claim seems to us hopelessly vague and obscure. In our judgment, there is no just i fication for any claim in negligence.
The so-called "innominate tort" is said to be the causing of economic damage by unlawful means. In the present case, this head of claim seems to us indistinguishable from the claim based on "abuse of powers".
Accordingly, we dismiss the appeal.
