England and Wales Court of Appeal (Civil Division) Decisions

Flanagan & Anor v South Bucks District Council [2002] EWCA Civ 690 (16th May, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEENS BENCH DIVISION.

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 May 2002

Lord Justice Keene:

1. This is an appeal by the second defendant in the proceedings, James Flanagan, against a decision of Harrison J. By that decision (now reported at [2001] 4 PLR 110) Harrison J. allowed an appeal by the claimant, the local planning authority, against a decision of His Honour Judge Parry dated 17 November 2000 at Slough County Court.
2. Judge Parry concluded that the local planning authority was estopped from bringing proceedings for an injunction to restrain the defendants from using certain land at Farnham Royal, Buckinghamshire, for the storage of vehicles, scrap metal, building materials and other items. The injunction had been sought against both Martin Flanagan and James Flanagan, who were father and son. Martin Flanagan in fact died in June 2000, after the application had been made for an injunction but before the County Court hearing. It seems that the father owned the land in question, but the occupier of it was the son. The estoppel, as claimed by the defendants and as held by the County Court judge, was based on an agreement reached at a magistrates court on 28 August 1998.
3. As Harrison J. pointed out in his judgment, there is a lengthy history of enforcement action taken by the claimant in respect of this land. For present purposes, only certain features of that history need be set out. In April 1980 the claimant served the first enforcement notice on the first defendant, Martin Flanagan, requiring the removal of vehicles and scrap metal from the land. There was no appeal against the enforcement notice, with the result that it took effect. In January 1996 the Council served an amenity notice on the first defendant under section 215 of the Town and Country Planning Act 1990 (the 1990 Act) requiring the removal of some 70 specified items, materials and objects from the land. The first defendant appealed against that notice in April 1996. That appeal, which lies to the magistrates’ court, had not been determined as at August 1998.
4. In June 1996 the first defendant was convicted in the magistrates’ court of storing scrap metal and vehicles on the land in breach of the 1980 enforcement notice. He was fined £100 and ordered to pay £400 costs. His appeal against that conviction was dismissed at the Crown Court in December 1996. In February 1997 the Council served a second enforcement notice on the first defendant requiring the removal of two portacabins from the land. There was no appeal against that enforcement notice, which therefore became effective.
5. In the summer of 1997, proceedings were issued in the magistrates’ court against the first defendant for breaches of the first and second enforcement notices.
6. It took some time for those two prosecutions under section 179(2) of the 1990 Act to come to court. One of the reasons seems to have been that the first defendant was elderly and frail and arguably not capable of giving instructions. In the meantime, the claimant’s Head of Legal Services, Miss Reardon, obtained approval from the Planning and Transportation Committee for two alternative courses of action, which she described in a letter dated 3 June 1998 sent to the firm of solicitors, Iliffes Booth Bennett, who would be acting for the claimant in the magistrates’ court proceedings. The relevant part of the letter reads as follows:

“In an attempt to progress these matters, or indeed dispose of them, my Councils Committee has approved 2 courses of action in the alternative, namely:-

1. If Mr Martin Flanagan agrees to withdraw his appeal against the Council’s Section 215 Notice dated 5/1/96 or the Magistrates agree to refuse/dismiss his appeal then the Council will agree to withdraw its 2 prosecutions against Mr Martin Flanagan for breach of the 1980 and 1997 Enforcement Notices relating to land south of Church Road, Farnham Royal.

or

2. If Mr Flanagan Junior agrees to take full responsibility for the land south of Church Road, Farnham Royal and provides the Council with satisfactory written evidence as to his interest in the said land and current place of abode for service of papers, the Council will agree to withdraw the 2 prosecutions against Mr M Flanagan re the 1980 and 1997 Enforcement Notices to instead pursue Mr Flanagan junior and to withdraw the Section 215 Notice dated 5/1/96 and reissue same updated as necessary to take account of the items currently on the said land which are considered to adversely affect the amenity of the surrounding area.

In either case, you are also instructed to attempt to pursue abortive costs against Mr Martin Flanagan.

If neither of these options are agreed by Mr M Flanagan or the Court and Mr M Flanagan confirms his intentions to proceed with his appeal against the Section 215 Notice then the Council would also require its 2 prosecutions to proceed.

It should be made clear to avoid any future doubt, however, that both the 1980 and 1997 Enforcement Notices remain in breach and that the Council has powers to carry out works in default pursuant to section 178 of the Town and Country Planning Act 1990 to secure compliance at the landowner’s costs and the Council reserves the right to take such action regardless of the outcome of the current prosecution proceedings and the suggestions outlined above.

Similarly, the section 215 Notice has not been complied with and the Council again has powers to carry out works in default pursuant to section 219 of the Town and Country Planning Act 1990 to secure compliance therewith. Whilst the current matters before the Magistrates may be disposed of, the Council does not thereby condone the current state of the land. I have no objection to you placing this letter before the Court and Mr M Flanagan and/or his legal representative in an attempt to reach some productive outcome at the next hearing on 10 June 1998”

7. It will be seen that that letter gave the solicitor authority to agree in certain circumstances to withdraw the two prosecutions against the first defendant and to withdraw the section 215 notice under appeal, but not to withdraw the enforcement notices themselves. On 24 July 1998 the second defendant’s solicitors, Messrs Martin Murray & Associates, wrote to Iliffes Booth Bennett stating that the second defendant (the son) had been in occupation of the land since the early 1980s and admitting that he was liable to prosecution as the person in control of the land under section 179(4) of the Town and Country Planning Act 1990. As a result of that, on 10 August 1998, the Council commenced proceedings in the magistrates’ court against the second defendant for breach of the second enforcement notice. There was to be a hearing before the magistrates’ court on 28 August 1998. It was to be a pre-trial review for the enforcement prosecution against the first defendant, when the question of his medical health was to be considered, and it was to be a plea before venue hearing in respect of the enforcement prosecution against the second defendant. A date of 6 October 1998 had been set for the hearing of the first defendant’s appeal against the section 215 notice.
8. The claimant was to be represented at the 28 August hearing by Mr. Ikram of Iliffes Booth Bennett, an experienced criminal solicitor advocate. At that same hearing, the second defendant was represented by Mr Butler, also an experienced criminal solicitor advocate. He seems to have been regarded as also informally looking after the interests of the first defendant. The two solicitors eventually reached agreement, though there was subsequently a dispute about the terms of that agreement. Judge Parry heard evidence from both the solicitors, as well as from other witnesses, and he preferred the evidence of Mr Butler as to what had happened. He concluded that the agreement between the solicitors was that the local planning authority would withdraw the enforcement prosecutions against both defendants and would withdraw the section 215 notice, and would also withdraw both the enforcement notices, with any future action being taken by issuing fresh enforcement notices and/or section 215 notices against the second defendant; and in return the first defendant, Mr Martin Flanagan, would withdraw his appeal against the section 215 notice.
9. The respondent’s notice in these appeal proceedings challenges that finding. In a powerful argument, Mr Kolvin on behalf of the local planning authority draws attention to the note made by Mr Butler at the magistrates’ court about what had been agreed. The crucial part of that reads “James: withdrawn information. Martin: appeal withdrawn. Council withdrawn crim allegations against Martin Flanagan”. The note contains no mention of any agreement to withdraw the existing enforcement notices but is instead couched entirely in terms of the pending court proceedings. Mr Kolvin also points to certain passages in the transcript of Mr Butler’s evidence before the County Court judge which suggest that, due perhaps to inexperience of planning law, he was apt to confuse withdrawing criminal proceedings for breach of an enforcement notice with withdrawing the notice itself.
10. It is right to note that, when Mr Butler wrote to Miss Reardon at the Council a few days later on 1 September 1998, he described the outcome simply as the withdrawal of “all matters against our client James Flanagan, together with his father,” with no mention of any withdrawal of the notices. Mr Ikram, the solicitor for the claimant, also wrote to Miss Reardon by letter of 4 September 1998 confirming that the proceedings against both defendants had been withdrawn and that the first defendant’s appeal against the section 215 notice had been withdrawn, with no order as to costs. He made no mention of withdrawal of the existing enforcement notices or of any future action having to be based on fresh notices.
11. Nonetheless, like Harrison J., I would not think it right to interfere with the findings of fact by the trial judge as to what was agreed between the solicitors. There was oral evidence from Mr Butler that those were the terms of the agreement, and he also gave evidence to the effect that an earlier alternative deal involving only mutual withdrawal of court proceedings had been rejected by the second defendant. While I can see considerable force in Mr Kolvin’s submissions on this aspect of the case, Judge Parry heard the witnesses and in my judgment was entitled to make the finding which he did.
12. However, the position of the local planning authority was that the notices themselves had not been withdrawn. This was made clear by Miss Reardon soon after the hearing in the magistrates’ court, and in due course it took steps to enforce compliance by way of an injunction under section 187B of the 1990 Act, to restrain a breach of planning control. In the defence to the claim, the second defendant took various points, but in particular he asserted that the authority was estopped from pursuing the injunction proceedings because of the agreement at the magistrates’ court, alternatively that he had a legitimate expectation that the authority would not take such action. It was contended that the solicitor acting for the authority had actual or ostensible authority for making such an agreement on its behalf.
13. It was subsequently agreed that the issue of whether the authority was so estopped should be dealt with as a preliminary issue. As such it came before His Honour Judge Parry in November 2000. He reached the finding of fact as to the terms of the oral argument between solicitors to which I have already referred. He accepted that there would be no estoppel unless the representation made by Mr Ikram was within his actual or ostensible authority, and that it was for the second defendant to show such authority. But he concluded that Mr Ikram had

“actual or ostensible authority to bind the local authority”

There was no reasoning given for that conclusion. The judge concluded that the claimant was estopped, and in consequence the claim for an injunction was dismissed.

14. Before Harrison J. it was accepted by counsel for the second defendant that there was no actual authority possessed by Mr Ikram to withdraw the enforcement notices. Reliance was placed instead on ostensible authority. However, Harrison J. concluded that, while Mr Ikram had had ostensible authority to withdraw the prosecutions based on the enforcement notices, he had not had ostensible authority to withdraw the enforcement notices themselves. He took the view that such authority was not normally incidental to the conduct by a solicitor of a prosecution for breach of an enforcement notice, particularly when one bore in mind that “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”.
15. Having rejected the argument that such authority fell within the normal authority of a solicitor in such circumstances, Harrison J. then noted that there was no evidence that the Council had held out its agent solicitor as having authority to withdraw the enforcement notices. He therefore concluded that Judge Parry did not have evidence on which he could have properly concluded that Mr Ikram had ostensible authority to bind the Council to withdraw the enforcement notices. The appeal was consequently allowed.
16. Before us Mr Lamming for the second defendant does not seek to uphold the order of the County Court judge on the basis of an estoppel. He recognises that, in the light of the authorities, estoppel by representation really no longer has any part to play in planning law. That was almost the position achieved after the Court of Appeal decision in Western Fish Products Limited –v- Penwith District Council [1981] 2 All ER 204, there remaining only limited circumstances where a local planning authority would be bound by such a representation. This is because planning decisions are not simply matters of private interest, confined to the developer and the local planning authority, but involve the public interest also. One is here in the realm of public law. That has now been emphasised by the House of Lords decision in R –v- East Sussex County Council, ex parte Reprotech (Pebsham) Limited [2002] UKHL 8, where Lord Hoffmann, with whom the other members of the House agreed, said that:

“it is unhelpful to introduce private law concepts of estoppel into planning law.” (para. 33)

Although he recognised the analogy between private law estoppel and the public law concept of a legitimate expectation created by a public authority, Lord Hoffmann pointed out that remedies against public authorities also have to take into account the interests of the general public (para 34). It is clear that the House saw the earlier cases where estoppel had been applied in planning law as an attempt to achieve justice at a time when the concepts of legitimate expectation and abuse of power had scarcely made their appearance in public law. Now that those concepts are recognised, there is no longer a place for the private law doctrine of estoppel in public law or for the attendant problems which it brings with it.

17. Although Mr Lamming pointed out that these passages in Reprotech could strictly be seen as obiter, he acknowledged the weight which must be attached to them. Consequently his submissions were that the County Court decision can properly be upheld on the basis of legitimate expectation, which had been raised on the pleadings as one of the defences to the claim for an injunction. The Council did not resist the advancing of such an argument at this stage in the proceedings, and in my view it is right to proceed on that basis.
18. At the outset of his submissions on this aspect of the case, Mr Lamming conceded that a legitimate expectation based on a representation allegedly made on behalf of a public body can only arise if the person making the representation as to that body’s future conduct has actual or ostensible authority to make it on its behalf. That would seem to be right. Legitimate expectation involves notions of fairness and unless the person making the representation has actual or ostensible authority to speak on behalf of the public body, there is no reason why the recipient of the representation should be allowed to hold the public body to the terms of the representation. He might subjectively have acquired the expectation, but it would not be a legitimate one, that is to say it would not be one to which he was entitled.
19. Judge Parry found that Mr Ikram had “actual or ostensible authority” to bind the Council to withdraw the enforcement notices and not to proceed save by way of new notices. Mr Lamming accepted, as he did before Harrison J., that he could not seek to rely on any actual authority possessed by Mr Ikram. The letter of 3 June 1998 makes it clear that his authority did not extend as far as the agreement found by the trial judge to have been reached. The case for the second defendant therefore turns on the issue whether or not Mr Ikram had the ostensible authority claimed.
20. The principal contention advanced by Mr Lamming was that, by appointing Mr Ikram to represent the local planning authority in the magistrates’ court proceedings, the authority had represented that he had the authority to agree to a withdrawal of not just those proceedings but the enforcement notices themselves. Such a power fell, it was said, within the usual scope of a solicitor’s authority to compromise proceedings. Reliance was placed on the decision in Waugh –v- H.B. Clifford & Sons Ltd [1982] 1 Ch. 374, where it was held that a solicitor retained in civil proceedings had ostensible authority to compromise the suit provided that the compromise did not involve matters collateral to the action. Matters were only to be seen as collateral if they involved some extraneous subject matter. Therefore, where proceedings had been brought against the builders/vendors of houses for defects in the houses, it was within the ostensible authority of the defendants’ solicitors to agree to the repurchase of the houses at a price reflecting their value in a proper condition. In the present case it was argued that the enforcement notices and their continuing validity could not be seen as collateral to the criminal prosecutions in the magistrates’ court.
21. At one point it was also contended on behalf of the second defendant that Mr Ikram had been held out as having authority to withdraw the enforcement notices because he had in fact actual authority to withdraw the section 215 notice which was under appeal. The problem with that contention is that it was not known to the defendants’ solicitor that Mr Ikram had that degree of actual authority. It is not in dispute that Mr Ikram never showed the letter of 3 June 1998 to Mr Butler, nor did he tell him about it. One cannot derive any holding out from such facts, when no representation by the principal as to the agent’s authority, beyond any usual authority, is communicated to the other party.
22. I return, therefore, to the submission based on the usual scope of a solicitor’s authority to compromise proceedings. It has to be remembered that, as Harrison J. pointed out, an enforcement notice is an important public document. It runs with the land, it is registrable, and it is enforceable against any subsequent owner or occupier of the land in question, so long as it has been registered. Moreover, for an enforcement notice to take effect may require a lengthy process to be undertaken: there are rights of appeal against it to the Secretary of State, which may result in a public inquiry; there are further rights of challenge on a point of law to the courts. So an enforcement notice which has become effective, as these two notices had, is a planning instrument of some significance. It enables the local planning authority to prosecute for a breach of it, as indeed had successfully happened in the past in respect of the 1980 enforcement notice in the present case. Once such a notice has become effective, it endures in principle for an indefinite period of time, unless the local planning authority decides to exercise its statutory power under section 173A of the 1990 Act to withdraw it.
23. It is impossible to regard it as part of the usual authority of a solicitor, appointed to prosecute for a breach of the enforcement notice, to agree to a withdrawal of the underlying notice itself. That would be an action of great significance to the local planning authority, extending far beyond the issue of the particular breach of the notice for which the prosecution has been brought. The continuing validity and force of the underlying notice are not the subject matter of those proceedings in the magistrates’ court but are truly extraneous to them. It would put local planning authorities, who exercise their powers in the public interest, at the mercy of every advocate instructed to prosecute for such a breach if they were to be held bound by an agreement or representation made by that advocate as to the future validity and force of an otherwise unimpeachable enforcement notice. I find myself in full agreement with Harrison J.’s conclusion that authority to withdraw the notices themselves goes beyond what could reasonably be regarded as normally incidental to the conduct of prosecuting for a breach.
24. I conclude, therefore, that Mr Ikram did not have ostensible authority on behalf of the Council to agree to a withdrawal of the existing enforcement notices or to agree that any future action would be by issuing fresh notices. His ostensible authority in respect of the enforcement notices did not extend beyond agreeing to withdraw the criminal prosecutions. The latter was also within his actual authority. It may be noted that it could well be that, in the present case, a fresh enforcement notice could not be made effective in any event, because of the ten year limit on taking action against non-operational breaches of planning control. Be that as it may, the conclusion which I have reached is sufficient to determine this appeal.
25. There were other matters raised in argument. It is not easy to see how there was any reliance placed by the second defendant on Mr Ikram’s representation: Mr James Flanagan was not subject to the section 215 notice, because he had not been served with it, and it is not obvious that he changed his position in any way in reliance on the representation. Moreover, it would not necessarily follow that it would be an abuse of power for the local planning authority to resile from such an agreement, if such action on its part was in the public interest. The role of legitimate expectation in planning law remains to be fully explored: see Sullivan J. in Henry Boot Homes Ltd –v- Bassetlaw District Council [2002] EWHC 546 (Admin), at para. 148. Therefore, even if Mr Ikram had had ostensible authority, that would not have automatically meant that a legitimate expectation arose on the facts of this case. It is, however, unnecessary to decide those additional issues, given the conclusion to which I have already come.
26. The claimant is, therefore, not prevented from seeking an injunction in these proceedings by Mr Ikram’s agreement with Mr Butler on 28 August 1998. Whether an injunction should eventually issue is a matter for the discretion of the court which considers the matter in due course. That court would not, in my view, be prevented from taking into account, when exercising its discretion, the fact (as has been found) of such an oral agreement having been reached between the solicitors. But that would be far from being the end of the matter. The court would no doubt wish to take into account what disadvantage, if any, was suffered by Mr James Flanagan as a result of his mistaken belief that the local planning authority had agreed to such an outcome, and it will also have to take account of the public interest in the grant or refusal of an injunction. The continued use of land in breach of an enforcement notice is unlawful and, in normal circumstances, if nothing short of an injunction will prevent the unlawful use continuing, an injunction will be necessary and appropriate: see Hambleton District Council –v- Bird [1995] 3 PLR 8.
27. All of that is in the future. For present purposes it is sufficient to say that I can find no error in the conclusions reached by Harrison J. I would dismiss this appeal.

Mr Justice Sumner:

28. I agree.
Order: appeal dismissed with costs summarily assessed at £6,500; permission to appeal to the House of Lords refused; costs orders here and below stayed for 28 days pending lodging of petition to House of Lords for permission to appeal and, if permission is granted, the determination of that appeal.