England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT LIST)

		The Royal Courts of Justice The Strand London Wednesday 19 December 2001

Wednesday 19 December 2001

1. LORD JUSTICE SEDLEY: The two original defendants in these proceedings, Mr Flanagan senior and junior (the father, sadly, has died), had since at latest 1980 occupied land which was subject to enforcement notices. I say "occupied" because the nature of their occupancy or possession has not been clear. The enforcement notices, however, are of course registrable as land charges and run with the land.
2. On 28 August 1998, not for the first time, both men were prosecuted for breaches of the enforcement notices. Their solicitor, Mr Butler, reached an agreement at the door of the court with the local planning authority's prosecuting solicitor, Mr Ikram, which resulted, at lowest, in the withdrawal of the prosecutions.
3. About a year later the local planning authority issued injunction proceedings against both men under section 187B of the Town and Country Planning Act 1990. Basing themselves upon the agreement reached at the door of the magistrates court, the Flanagans pleaded estoppel by agreement. On 17 November 2000 Judge Parry at Guildford County Court upheld this plea.
4. In essence the judge preferred Mr Butler's recollection of the negotiation and agreement because it was backed by contemporary notes. He accepted, accordingly, that the two solicitors, following the rejection by Mr Butler of a first proposal by Mr Ikram, had agreed that the case should be put to sleep (those are my words) and that any future proceedings should be against the son only. Accordingly the three summonses before the court were dismissed by consent, and shortly afterwards the planning inspector made arrangements to come to the site in order to discuss how to secure compliance with the notices. Mr Butler wrote to the local planning authority to say that he proposed to close his file on the whole case, but the authority in reply made it clear that they did not regard the matter as closed: far from it. Hence the present injunction proceedings.
5. Although in those proceedings the door-of-court agreement was relied on by way of estoppel it is accepted, I think, that a public authority cannot be estopped from carrying out its statutory functions. The judge therefore rightly regarded the principal question as being whether, in the light of the agreement reached, it was right in the exercise of the court's discretion to grant the local planning authority an injunction. This in turn depended, in the judge's view, on whether Mr Ikram had been acting within his actual or ostensible authority in reaching the agreement he did with Mr Butler.
6. It seems to have been the county court judge's assumption (rather than finding) that the agreement, if it was as asserted by Mr Butler, extended beyond the compromise of the criminal proceedings for violation of the enforcement notices and included all future process based upon the notices: I will return to this in a moment. What the county court judge concluded was this (page 18 on of his judgment):

"On the basis of the evidence available to me, I accept, and my finding is that, Mr Butler did telephone Miss Reardon [of the local planning authority] after he had received the letter from her, confirming that the local authority would be proceeding. This appears to me consistent with his claim that he had received assurances from Mr Ikram settling the outstanding issues. This would have enabled him to close his files, as he stated in his letter to her. Upon receipt of his letter, Miss Reardon clearly realised that a serious misunderstanding had arisen. A muddled and complex situation had become more muddled and complex.

It appears to me, based on the evidence, that otherwise there was no advantage to the Flanagans in reaching the agreement, except possibly the risk of costs being awarded against them. Why, otherwise, would they withdraw the appeal?"

7. Then again (page 20):

"Whether in fact Mr Ikram exceeded his authority is an issue which may be of academic interest, or interest to others, but it is of no practical relevance to my decision tody. My finding in this case is that he had actual or ostensible authority to bind the local authority, and, whether he intended to or not, in my judgment, based on the evidence, that is precisely what he did. Whether he meant to go as far as he did in his discussions with Mr Butler, as he put it, when 'carving up the case' to settle the issues between the local authority, who were his clients, and the Flanagans will remain a mystery to some extent."

8. Although the judge did finally put it on estoppel he seems to have reasoned it (and reasoned it more appropriately) as a question of discretion.
9. On appeal by the local authority to the Queen's Bench Division of the High Court, Harrison J took a different view. He took the agreement to have been an unequivocal one to withdraw the enforcement notices in return for the applicant, Mr Flanagan, withdrawing his section 215 appeal so that any future enforcement action would have to be based on fresh enforcement notices and/or section 215 notices. But he concluded, in allowing the appeal, that Mr Ikram can have had no ostensible authority, much less actual authority, to scrap, on the local planning authority's behalf, a public act as important as an enforcement notice. He said (page 19-20 of his judgment):

"I have no doubt that Mr Ikram did not have actual authority to bind the Council to withdraw the enforcement notices. Unassisted by any reasoning by the Judge, I have to consider whether he had ostensible authority to do so. I have no doubt that Mr Ikram had ostensible authority to withdraw the prosecution of the enforcement notice proceedings. Ostensible authority to withdraw the enforcement notices themselves, however, is a different matter. In my view, it goes beyond what could reasonably be regarded as normally incidental to the conduct of prosecuting for breach of an enforcement notice. A valid and effective enforcement notice is an important public document, which runs with the land and which is entered on the Land Charges Register. It can have important consequences affecting the public interest, including the prevention of a non-conforming use becoming immune from enforcement action by the effluxion of time.

In my judgment, there would need to be clear and compelling evidence of the Council holding out its agent solicitor as having authority to withdraw an enforcement notice before there could be any possibility of ostensible authority being established. In my view, there was no such evidence in this case. I do not consider that there was sufficient evidence to justify the Judge's conclusion that Mr Ikram had ostensible authority to bind the Council to withdraw the enforcement notices."

10. When I considered this application for permission to appeal on the papers and refused it, I expressed the view that Harrison J might have been wrong about this question of law. But I took the view that what Judge Parry had found anyway fell short of an unequivocal agreement to withdraw the notices. Mr Lamming points out that that was not Harrison J's view. He in effect amplified Judge Parry's findings to the effect indicated by the passage that I have quoted. Mr Lamming also points out that against Harrison J's concern at the dramatic consequences of scrapping long-standing and much-violated public enforcement notices issued in pursuance of a duty which is owed to the public, he is entitled to counterpose the futility of an agreement to abandon criminal enforcement proceedings if the agreement was such as to permit the planning authority to go straight round to the county court to start civil proceedings for enforcement against Mr Flanagan. Both sides, as the judges below recognised, have a point.
11. But this is not the test of what I have to decide. I have to ask myself whether, this being a second appeal for which permission is sought, an important point of principle or practice is involved or some other compelling reason exists for the grant of permission. The stringency of these conditions is perhaps mitigated in a case like the present by the fact that this is not the kind of applicant against whom the rule, I think, is principally directed; that is, one who has already lost twice. Indeed, I think it is fair to say that the decision of Harrison J departs from a different starting-point from that of Judge Parry and in important respects is the first version of the issues which Mr Lamming now addresses. I have considered not only Harrison J's, if I may say so, cogent and persuasive reasoning, but also Mr Kolvin's skeleton answer, put in without solicitation in response to the present application. Paragraph 18 of it, in particular, appears to me to deserve attention.
12. In the end, however, I am persuaded by Mr Lamming that a serious point of principle is involved in this application. It is whether, on the facts which were apparently found, Mr Ikram had ostensibly been authorised not by his general retainer, which was clearly only to prosecute, but specifically, as was perfectly feasible on the day, by particular instructions to undertake on the local planning authority's behalf that the notices would be withdrawn. I do not exclude the possibility that, even if this conclusion is not established in law, the facts upon which the argument is founded may themselves have been a sufficient ground for the exercise of the county court judge's discretion adversely to the local planning authority. I express no view as to the strength of his argument, but it seems to me a respectable one and one which raises a sufficiently important point of principle to warrant the grant of permission. Permission is accordingly granted.
ORDER: Application allowed. Enforcement of the costs order to be stayed with liberty to the local authority to apply. The costs of this application to be costs in the appeal. (Order not part of approved judgment)