England and Wales High Court (Administrative Court) Decisions

SHEATH and THE SECRETARY OF STATE FOR THE ENVIRONMENT, TRANSPORT AND REGIONS and MID DEVON DISTRCT COUNCIL [2001] EWHC Admin 79 (5th February, 2001)

Neutral Citation Number: [2001] EWHC Admin 79

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand,

London, WC2A 2LL

Monday 5 February 2001

Applicant

First Respondent

Second Respondent

MR JUSTICE STANLEY BURNTON:

1. This is an appeal by Mr and Mrs Sheath from the decision of Mr Paul Taylor, an Inspector appointed by the Secretary of State for the Environment, Transport and the Regions, dated 5 April 2000, granting a lawful development certificate to Mr & Mrs Sheath pursuant to Section 191 of the Town and Country Planning Act 1990, but not in a form they wanted. Their appeal is under section 288 (1) (b) of the Town and Country Planning Act, 1990, on the grounds:

(a) that the decision of the Inspector was not within the powers conferred by the Act;

(b) that the requirements of the Act or of the Planning Tribunals Act 1992 or of orders, regulations or rules made under either Act had not been complied with.

2. Their appeal is opposed by the Secretary of State for the Environment, Transport and the Regions.

3. The appeal relates to the Appellants' home known as Mayfield House in Templeton, near Tiverton in Devon. They purchased the house in 1993. The house was built in about 1990 and 1991, by Holmead Farm Ltd, which owned and operated a farm on land which included the site of the house. Holmead Farm Ltd was a family company of Mr Charles Stuart, his wife and their three children.

4. Mr Stuart applied for planning permission for the construction of the house in August 1988. His letter of 22 August 1988 enclosing his application for planning permission "For a Company Dwelling for Holmead Farm Ltd" explained that Holmead Farm Ltd then had no company dwelling, and that the application for planning permission sought to remedy that. The planning application described the proposed development as `agricultural dwelling for Holmead Farm Ltd , living quarters for family associated with Holmead Farm'. There followed negotiations with Mid Devon district Council, the local planning authority. Mr Stuart corresponded with Mr Dightam the District Planning officer. Mr Dightam was concerned that the development constituted sporadic residential development in the countryside. Mr Stuart insisted on the need for a dwelling house for the purposes of the farm.

5. Ultimately, planning permission was granted on the 18 May 1989. The permission was signed by Mr Dightam as District Planning officer. It was subject to two relevant conditions. Condition (c) was as follows:

The occupation of the dwelling hereby permitted shall be limited to a person solely or mainly employed, or last employed, in the locality in agriculture, as defined in Section 290(I) of the Town and Country Planning Act 1971, or in Forestry, including any dependants of such a person residing with him or her, or a widow or widower of such person.

6. Condition (g), in so far as is relevant, was as follows:

Prior to the commencement of any building works in connection with the development hereby permitted, the existing vehicular access (onto the County road) shall be improved by the provision of a visibility display...

7. Following receipt of the planning permission, Mr Stuart wrote to the District Council. His letter was addressed to a Mr Valentine, whose position is obscure, and was copied to the Chairman of the Planning Committee. The letter was as follows:

Thank you for sending me notice of grant of permission for Holmead Farm Ltd's application for an agricultural dwelling. You attached seven conditions, the seventh (g) being unexpected (and not discussed between us prior to approval).

We have since discussed it by telephone. I confirm that I have no objection in principal to improving public access to HFL, but seek to make such improvement at the last, not the first, task. That would enable us to proceed now with the dwelling, whilst planning as convenient to you and the Highway Authority what finally need be done to meet your conditions in detail. I hope this has your concurrence.

8. Mr Dightam replied by letter dated 13 June 1989:

I refer to your letter of 30 May 1989, in connection with the above development, the contents of which are noted.

I understand that you accept the reasoning and justification for Condition (g) of the permission granted on 18 May, 1989....but wish to delay the commencement of the access improvement works.

In the circumstances, I can see no fundamental objection to your request to commence the development by erecting the dwelling first and completing the access improvements within, I would suggest, a period of twelve months following occupation of the agricultural worker's dwelling. Your co-operation and compliance with the terms of this planning approval would be appreciated.

I trust that this information is of some assistance.

9. Following this exchange of correspondence, the house was constructed. However, condition (g) has never been complied with. As mentioned above, in 1993 the house was sold to the appellants. They have remained in occupation since then. Neither of them is engaged in either agriculture or forestry, so that condition (c) of the planning permission is not being complied with either.

10. The Council has never sought to require the construction of the road access required by Condition (g). However, the Appellants contend that by reason of the indulgence given to Mr Stuart in Mr Dightam's letter of 13 June 1989 they are absolved from complying with Condition (c). On 20 January 1999 they applied under section 191 of the 1990 Act for a certificate of lawfulness for an existing use. They contended that Mr Dightam had no authority to vary the planning permission of 18 May 1989; that the requirement of the works described in condition (g) was a condition precedent, to be complied with before the house was built; that accordingly their house was built without planning permission; and that its use as a private dwelling house began more than 4 years before their application.

11. The Council refused the certificate, on the ground that condition (g) was not a condition precedent, but merely regulated the order in which the development should be carried out. Mr and Mrs Sheath appealed under section 195 of the Act. Their appeal was allowed by the Inspector, but theirs was a Pyrrhic victory, because it provides that the use of the house as a dwelling "is authorised by planning permission 4/52/88/2067 granted on 18 May 1989 by Mid Devon District Council", with the result that condition (c) applies to its use. In summary, the Inspector decided that condition (g) was a condition precedent; that Mr Dightam had no actual authority to vary the planning permission, but that the letter of 13 June was binding on the Council as having been written by their District Planning Officer within his ostensible authority. He stated:

35. However, only 12 days elapsed before Mr Stuart wrote to the Council about condition (g). His letter is expressed in his own language, and not in officialese, but to my mind it is clearly a formal request to carry out the works referred to in condition (g) after the house was built.

36. The Council's written response is, in my view, clearly a formal answer binding on any developer. It says that the highway works can be delayed until after the house has been built. Anyone receiving that letter would think that they had absolute authority to delay the access works and would feel comfortable that they were doing nothing wrong building the house first. The letter was acted upon.

37. It may be the case that the officer who write the letter did so without the delegated authority to do so, that normal Council procedures were not complied with, that what was authorised by the letter was material for planning purposes, and that the language of the Council's letter was informal and casual. Nevertheless, taking the letter as a whole there is a clear permission from the District Planning Officer, on behalf of the Council, to carry out the highway works after the house was built. Criticism of the Council's practice, procedures and judgment relating to the matter might be made but the letter of 13 June 1989 is a decision and that decision stands. If an officer acting within his ostensible authority makes a representation on which another acts the authority may be bound by it.

38. Thus by virtue of the letter of 13 June 1989 condition (g) was varied. It became no longer a "condition precedent". When the house was built it was in accordance with the planning permission and with condition (g) as varied. Subsequently condition (g) was never complied with. The Council could have taken enforcement action against that but that is another matter.

12. The Appellants have appealed against the Inspector's decision pursuant to section 288 of the 1990 Act. Paragraph 3 of their claim form is as follows:

The First Respondent's Inspector wrongly concluded that as Mr Dightam had acted within his ostensible authority, the effect of such actions result in the Second Respondent being bound by it and the variation bound Mr Stuart and any successors. The effect of variation without proper authority is:

(a) that the Second Respondent is estopped from making any contentions that are contrary to the said letter written by Mr Dightam dated 13 June 1989;

(b) the condition was not properly and formally varied, therefore as the condition has never been fulfilled, the dwelling that was erected in 1990/91 was not erected pursuant to the planning permission granted 18 May 1989. As this unauthorised dwelling house has been occupied for more than four years a Lawful Development Certificate should be granted without any agricultural occupancy condition, which was the subject of the earlier permission.

13. I have to say, as I did during the course of argument, that the position of the Appellants is wholly technical and without merit. In their claim form they accept that the concession contained in the letter of 13 June 1989 bound the Council by estoppel. However, they contend that this concession, given to the developer at its request, to delay compliance with condition (g), has freed them from compliance with condition (c). If they are right, any such informal concession is a trap for the unwary.

14. It is right to say that Mr Miller, who appears for the Appellants and whose submissions were admirably clear and concise, resiled in his skeleton argument from the assertion that Mr Dightam's letter bound the Council by estoppel. He submitted that there was no evidence of reliance on the letter. He did not, however, assert that if there had been reliance, the Council was not bound by the letter of 13 June 1989. Both Mr and Mrs Sheath and the Council have accepted therefore that even if Mr Dightam did not have actual authority to send the letter of 13 June 1989, it was capable of binding the Council.

15. I have no doubt that the correct inference to draw from the facts is that Mr Stuart did rely on the letter. I see no reason why he should have raised with the Council the question of the order in which works were to be carried out if he was simply proposing to ignore the terms of the planning permission. I see no reason to impute to him any such intention. The Inspector held, and this has not been challenged, that apart from condition (g), the construction of the house complied with the planning permission. Clearly, at some stage Mr Stuart or his company decided not to carry out the work to the road access; but I see no reason to infer that this decision was made before the commencement of the construction of the house. The Inspector was correct to find that the letter was acted upon.

16. Accordingly, for present purposes it was common ground between the parties that, if the letter of 13 June 1989 the parties was relied upon, it created an estoppel binding on the Council. This is in my judgment a realistic view. The concession given in the letter of 13 June 1989 was within the ostensible authority of Mr Dightam. He was the district planning officer. It was with Mr Dightam that Mr Stuart had corresponded. It was Mr Dightam who had signed the planning permission. Whatever the position of Mr Valentine, the addressee of the letter of 30 May 1989, he must have passed the letter on to Mr Dightam for him to deal with.

17. The distinction between cases in which a planning authority may be bound by its officers' assurances to developers, such as those envisaged by Lord Denning MR in Lever Finance v Westminster LBC [1971] QB 222, 230, and those in which there can be no estoppel, referred to in the decision of the Court of Appeal in Western Fish Products v Penwith District Council [1981] 2 All ER 204, and in Co-Operative Retail Services Ltd v Taff-Ely Borough Council [1979] 39 P & CR 223 must lie in the nature of the assurance in question. In the present case, the concession given in the letter of 13 June 1989 went only to the order in which the development work should be carried out. It did not affect the question whether planning permission was required, or whether the works required by condition (g) should be carried out; and it is difficult to see how any third parties could have been affected by the concession. There were not therefore the considerations which led the Court of Appeal in the Western Fish case to hold that there could be no estoppel based on the planning officers' alleged representation.

18. If the concession contained in the letter of 13 June 1989 was binding on the Council by estoppel, as stated in paragraph 3(a) of the Applicants' Claim Form, it follows that the Council could not lawfully have taken enforcement action for breach of condition (g) of the planning permission by reason only of the construction of the house before the access works were carried out.

19. Section 191 of the 1970 Act is concerned with the lawfulness of a development. "Lawful", in this context, is to be judged by reference to planning legislation. The essential question is whether enforcement action may be taken in respect of any alleged unauthorised development or breach of a condition of an applicable planning permission. By this criterion, the construction of the house was lawful, by virtue of the planning permission, notwithstanding that condition (g) had not been complied with, and notwithstanding that the planning permission had not been formally varied.

20. It follows that the Inspector reached the correct conclusion, and that condition (c) of the planning permission remains in force.

21. This conclusion is, I believe, in harmony with the non-technical approach to the planning legislation exemplified by the decision of the Court of Appeal in F G Whitley & Sons Co. Ltd v Secretary of State for Wales and anr. [1992] 3 PLR 72.

22. In Oakimber v Elmbridge Borough Council (1991) 62 P&CR 594, at 616, Beldam LJ said:

But if it had been necessary to do, I would have expressed my agreement in principle with the views of Woolf. J. (as he then was) in Etheridge v Secretary of State for the Environment that development carried out without permission or commenced in contravention of conditions of a permission would not be development to which the permission related because it was development carried out in breach of planning control and so not permitted. However, the importance and nature of the condition and the extent of and reasons for breach may in some circumstances be relevant to considerations and I would prefer to reserve an opinion on the question for a case in which it is necessary to decide it.

23. This is, in my judgment an exceptional case in which, for the reasons I set out above, the development was not carried out in breach of planning control and was permitted.

24. I add that it may be that the same result may be reached by another route. The Council was able to waive any formal or procedural irregularity in the sending of the letter of 13 June 1989 as a variation of the planning permission: Wells v Minister of Housing and Local Government [1967] 1 WLR 1000. It is arguable that, notwithstanding the passage of time, by accepting, and indeed arguing, before the Inspector that the letter of 13 June 1989 was an effective variation of planning permission the formal defect was waived and Mr Dightam's action on behalf of the Council ratified. I have, however, reached no conclusion on this point.

25. Lastly, the Respondent was content to argue this case on the basis that the Inspector had found that Mr Dightam did not have actual authority to vary the planning permission by his letter of 13 June 1989. I do not think that the Inspector did make that finding. The relevant passage in his Decision is at paragraph 37, set out above, in which he stated:

It may be that the officer who wrote the letter did so without the delegated authority to do so, ... [Italics added.]

26. The relevant actual delegated authority of Mr Dightam was for the following:

To deal with minor alterations or amendments to an approved drawing, or a trivial alteration to the use of buildings or land, which are not material from the planning point of view. To approve alterations or modifications to drawings, buildings or development; in cases which are not material from a planning point of view (TCPA 1990).

27. I question whether the concession permitting the construction of the access to the house after construction of the house itself was not an approval of "alterations or modifications to ... development" in a case which was "not material from a planning point.

MR JUSTICE STANLEY BURNTON: My judgment in this case has been distributed in draft and sets out my decision.

MR GIBBON: My Lord, I am most grateful. Did your Lordship receive comments by fax from me last week?

MR JUSTICE STANLEY BURNTON: My clerk did and I think they have been incorporated.

MR GIBBON: I am obliged. I have not, and I do not think my learned friend has, received a final copy of your judgment. Doubtless that is in the system somewhere. It is just here. My Lord, I am much obliged.

MR JUSTICE STANLEY BURNTON: There should be plenty of copies available.

MR GIBBON: My Lord, I am very much obliged. My Lord, subject to you, that in effect leaves only the subject of costs. My application is for the Secretary of State's costs. There was a summary assessment produced at the last occasion, that has been very very slightly updated, simply for costs of delivery of the judgment today. I believe a copy is about to be handed up to you.

MR JUSTICE STANLEY BURNTON: Let me have a look at the original first. What is the argument about?

MR GIBBON: My Lord, the scope of the dispute is two-fold. First, my friend has questioned the £570 sum for me for additional costs for adjournment of the hearing --

MR JUSTICE STANLEY BURNTON: Can you just speak up a little?

MR GIBBON: I apologise. My friend has been asked to question £570 put in for additional preparation for the adjournment of the hearing. Your Lordship will remember the matter was due to come on in early December. Because of the state of the cause list that could not be done and therefore came before your Lordship earlier this year.

MR JUSTICE STANLEY BURNTON: Yes.

MR GIBBON: Some six weeks after the original date. I understand that is her sole specific comment on the summary schedule, but I understand secondly, on the basis of that, that her solicitors have asked her if she can invite the court to order a detailed assessment rather than a summary assessment. My Lord, clearly I would oppose that and we would invite your Lordship to deal with the matter today.

MR JUSTICE STANLEY BURNTON: What is the grand total now?

MR GIBBON: My Lord, the grand total that I believe should be there is £6,072.

MR JUSTICE STANLEY BURNTON: That is on page 2, is it?

MR GIBBON: Yes, page 2. My Lord, simply, as it were by way of comparison, the summary shown by my friend's solicitors on the last occasion was around £10,000.

MR JUSTICE STANLEY BURNTON: £10,000?

MR GIBBON: My Lord, yes.

MR JUSTICE STANLEY BURNTON: Where is the item "the adjournment"?

MR GIBBON: It is in the manuscript just above (inaudible) we see two items there.

MR JUSTICE STANLEY BURNTON: It is on the new schedule?

MR GIBBON: On the second sheet.

MR JUSTICE STANLEY BURNTON: What does that represent, two hours of time or something?

MR GIBBON: My Lord, slightly more than that at government rates. My Lord, looking at the background here, I was preparing a skeleton and I had not done full preparation for the hearing in December. Clearly that, combined with the six week break, and indeed my new skeleton, is the reason. My Lord, that is perhaps as much as I can say.

MS SKERRETT: My Lord, the only thing I have to add to my learned friend's comments is that the basis of seeking detailed assessment is the fact that for some reason or other the actual hearing was only one day, and secondly, in relation to querying the figure, we suggest that when it was postponed it should have been ready to go at that stage. There was actually no need to incur £570 additional costs. That is the only objection I have, sir. On that basis I will be seeking detailed assessment.

MR JUSTICE STANLEY BURNTON: Did the case go for more than one day in front of me?

MR GIBBON: My Lord, no. It was the morning and then the short part in the afternoon. As your Lordship actually said in the judgment, in fact Mr Miller put the case very briefly.

MR JUSTICE STANLEY BURNTON: Yes.

MR GIBBON: In those circumstances, although the skeletons were quite long, oral argument only went halfway through the afternoon.

MS SKERRETT: I do apologise, my Lord. That was what I was instructed. I also was not here at the hearing so I will have to go with what my learned friend says.

MR JUSTICE STANLEY BURNTON: Clearly, the Secretary of State is entitled to his costs. It seems to me this is a paradigm case for summary assessment, and the only item that really has been queried is the additional preparation resulting from an adjournment of this case. As I recall in my own costs, adjournments often mean getting their case up all over again, so I am not surprised that counsel was involved with extra time. I am going to knock off a very small amount to bring the figure down to around £6,000, which I think is a fair and justified assessment of the costs.

MR GIBBON: My Lord, I am much obliged.

MS SKERRETT: Thank you, my Lord.

MR GIBBON: My Lord, unless there is anything further.

MR JUSTICE STANLEY BURNTON: No, not as far as I am concerned. Thank you very much.

MR GIBBON: My Lord, I am very much obliged.

MS SKERRETT: Thank you, my Lord. (Pause).

MR JUSTICE STANLEY BURNTON: Thank you very much. Unless there is anything else I have two other matters to deal with.

MR GIBBON: My Lord, the only point raised between my learned friend and I was whether permission to appeal could be raised before your Lordship, but I think we are agreed between ourselves that in view of the new rules that matter could not be raised before your Lordship in any event.

MR JUSTICE STANLEY BURNTON: Is that right?

MR GIBBON: Rule 52.13 seems to state that where there is an existing appeal which has come to the High Court, (inaudible) to the Court of Appeal, if any party was so minded, could be granted permission only in the Court of Appeal. The High Court judge, it would appear now, is able to say -- that is for somebody else.

MR JUSTICE STANLEY BURNTON: I will not say anything, I have my own views on the question. I look forward to seeing what happens with interest.

MS SKERRETT: Thank you, my Lord. That is my understanding as well.

MR JUSTICE STANLEY BURNTON: If there is a problem about that you can make an application back to me.

Thank you.