England and Wales High Court (Administrative Court) Decisions

“(1) If any person wishes to ascertain whether - …

(b) any operations proposed to be carried out … on … land would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the … operations in question.

(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the … operations described in the application would be lawful if … begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”

“(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and

(b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.”

Factual background

“4. There is no dispute that, by reason of previous planning consents in 1973 and 1978, and the start of construction work, there is an extant planning permission covering the whole of the 2.64 ha in your clients’ ownership, for 68 dwellings (31 on Phase I – appeal site, and 37 on Phase II). Due to a change in policy following the introduction of the approved Cornwall Structure Plan, and the non-statutory District Settlement Policies and Plan, which, contrary to the former County Development Plan, seek to restrict housing development to fewer locations, any new permission for residential development here would conflict with that policy. I note however, that the council have taken into account the planning history of the site and in addition, recognises that the present application, for small 2-storey development, at a higher density than the earlier proposal, but with only a limited increase in persons accommodated, is in step with the general need to produce more small dwellings, including starter homes, as encouraged by government policy, set out in Circular 22/80. Furthermore, as pointed out in Circular 14/85, Development Plans are one, but only one of the material considerations that must be taken into account in dealing with planning applications.

5. Notwithstanding this, the fact that your clients already have permission to carry out development on this site, does not give them any legal or moral right to expect the grant of permission for the present development, as each application must be considered on its merits, but the existence of this permission is itself a material consideration, and having regard to the planning history of the site, the nature of the present proposals, and the general acceptance of the council of the principle of the development, apart from the access, I am of the opinion that, insofar as the principle of the development is concerned, such harm as the proposal may generate is insufficient to overcome the presumption in favour of allowing the appeal, as provided for in Circular 14/85.”

“9. The council have suggested that, in the event of this appeal being allowed there should be a Section 52 agreement between your clients and the council, limiting the number of dwelling units on Phases I and II, to the 68 originally permitted, but this is unacceptable to your clients. I am unable to make it a condition of planning consent that such an agreement be entered into, and consider that such a condition imposed by me would be unreasonable, bearing in mind the planning history. It is however a matter of importance, and is one for consideration by the council, and the appellants in the light of current planing policies, the development already approved, including this development, and any future proposals.”

“We act for the vendors of the above mentioned land and we attach herewith an ordinance [sic] survey plan showing the extent of the land edged red, together with a copy plan showing the approved layout on phase 1 for 52 units.

It is proposed that this land will be disposed of in the near future and it is anticipated that it is likely that the development will take place under a joint venture type arrangement, where the vendor acts as sponsor and a separate development company carries out the construction.

Our understanding of the situation is as follows:

1. By reason of previous consent in 1973 and 1978 and the start of construction works there is an extant planning permission covering the whole of the 6.5 acres for 68 dwellings (31 on phase 1 – 37 on phase 2).

2. There is a detailed planning consent for 52 units on phase 1, granted on appeal in 1986, and extant by virtue of a material start ….”

The letter went on to refer to a number of possible forms of development and to invite comments on them.

“I refer to your letter of June the 9^th concerning the residential land at St Anne’s Chapel, which has had a number of planning consents granted for development between 1973 and 1986. I have answered your points in the order in which you have raised them.

1. I can confirm that an extant planning permission exists on this site for 68 dwellings by reason on [sic] 2 planning consents granted in 1973 and 1978. Building Regulation commencement in 1975 has been deemed to keep these consent [sic] ‘alive’.

2. The subsequent approval on phase one was for 52 dwellings, granted on appeal in 1986. Our records show that commencement of development did take place in respect of plot 20 and 21 within 5 years of the decision letter and this permission is also extant ….”

The letter also provided comments on the various forms of development referred to in the letter from Black Horse Agencies of 9 June.

“5. I am familiar with the form and content of sales particulars, pre-contract enquiries and associated conveyancing documentation. I would normally satisfy myself as to the planning status of land that the Company proposed to purchase by reference to documentation produced by the vendor and/or its agents, any further relevant investigation with the local planning authority concerned and through discussion with the solicitor who has advised the Company on land transactions for 20 years or more.

6. For a number of years prior to 1995 I had what I would describe as a general awareness of the planning position on the land called Phase I and Phase II for the purposes of the above Appeal (‘The Land’) ….

7. … In the early part of 1995 I judged that the Land might be acquired at a price that reflected more realistically its market value.

8. Having regard to the amount of development the Company has carried and does carry out in South East Cornwall, when the Caradon local plan went on deposit in 1994, I had looked at land allocations in the Callington and Gunnislake area and had specifically noted that the draft local plan showed planning permission for 89 dwellings on the Land.

9. I then contacted the selling agents, Black Horse Agencies, and arranged for a copy of the sales pack to be sent to me …. I read the contents of this sales pack carefully .…

12. I looked with particular care at the contents of appendices 2(a), 2(b) and 2(c) in the sales pack [i.e. exchange of letters in 1994, inspector’s decision in 1986 and confirmation that the 1986 planning permission had been implemented]. I considered that the letter dated 22^nd June 1994 to Black Horse Agencies in appendix 2(a) contained unqualified statements made by a senior officer of the Council on behalf of the Council as to the exact nature of the planning permissions on Phases I and II.

13. I regarded the letter of the 22^nd June 1994 as an unambiguous statement by the Council about the planning permission. Point 1 of that letter coincided almost exactly with the Inspector’s decision letter of 21^st March 1986 at appendix 2(b) of the sales pack. In the context of what I knew of the local plan, I formed the view here that no further investigation was necessary to clarify the planning permission.

14. After discussion with Mr Marshall and the Company’s solicitor, including reviewing the documents from the Council in respect of the planning position, I decided to make an offer to purchase the Land.

15. Following negotiations a purchase price of £305,000 was agreed …. Contracts were exchanged on 25^th October 1995 followed by completion in due course.

16. I had no reason to doubt the accuracy of the statements in the Council’s letter of 22^nd June 1994 and did not in fact doubt the accuracy of those statements. I did not feel it was necessary to make any further enquiries of Caradon or indeed to anybody else in order to test the accuracy of those statements. I did not make any further enquiries to test the accuracy of those statements nor instruct anyone else to do so on behalf of the Company.”

Estoppel by representation

“26. The appellants’ case on this issue hinges on the evidence of Mr Brian Richardson and his reliance on the Council’s reply to the enquiry by the Black Horse Agency concerning the planning status of the whole 2.64 hectares of development land and other matters relevant to its future sale. In their letter to the Council dated 9 June 1994, Black Horse Agency make it abundantly clear that the land would be disposed of in the near future and were clearly seeking the Council’s confirmation of the planning situation, presumably to ensure that the sales particulars were accurate in that respect.

27. Firstly, they reiterated Council’s evidence in the Inspector’s decision letter in 1986 that there was an extant planning permission for 68 dwellings on the whole site. In their reply dated 22 June 1994, the Council confirmed that ‘an extant planning permission exists on this site for 68 dwellings by reason of two planning consents granted in 1973 and 1978. Building Regulations commencement in 1975 has been deemed to keep these consent (sic) ‘alive’.’ Secondly, the agents referred to the permission granted on appeal for 52 dwellings on Phase 1 which was also extant by virtue of a material start. In their reply the Council confirmed that ‘The subsequent approval on phase one was for 52 dwellings, granted on appeal in 1986. Our records show that commencement of development did take place in respect of plots 20 and 21 within 5 years of the decision letter and this permission is also extant.’ The letter was signed by Mr Oakley for the Director of Planning Services.

28. Although both parties acknowledge that the Western Fish judgement found that the Courts are reluctant to apply estoppel by representation to development control matters, the appellants argue that an exception to that general rule applies in this case. However, the same judgement also found that ‘there must be some evidence for justifying the person dealing with the planning officer for thinking that what the officer said would bind the planning authority.’ In this case, the Black Horse Agency wrote specifically to Mr Oakley seeking confirmation of facts as they understood them from the planning history of the land in readiness for its sale for development. In my view, Mr Oakley cannot have been in any doubt about the serious nature of such an enquiry and, indeed, his reply was not couched in the more familiar tone of the enquiry, but was a formal reply on behalf of the Director of Planning Services which clearly led the agents and the appellants to understand that this was the Council’s position.

29. However, while I acknowledge the appellants’ view that the Council’s reply of 22 June 1994 appeared to be an unambiguous statement of fact that there was an extant permission on the land, paragraph 1 in that letter is clearly in error. By any informed evaluation of the permissions on the land, any reasonable person would have found that the officer’s reply was a mistake and appears to have stemmed from similar inaccurate evidence put to the Inspector in 1986. Clearly, a Building Regulations commencement in 1975 could not, as the Council rightly point out, have been a material commencement on a permission not granted until 1978. Bearing in mind the age of the Phase 2 permission, the Council’s error and the absence of any apparent commencement on the site, I would not have expected an experienced developer, such as the appellants, to have relied totally upon the officer’s reply. This is particularly relevant in this case because, when the Council’s letter was written in 1994, statutory procedures were in place for potential purchasers of land to determine the lawfulness of development, by means of application for a LDC, which was not in place when most of the judgements referred to were made. I therefore conclude that the case for estoppel by representation has not been proven.”

“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 ….

It follows that no relevant estoppel, 'proprietary' or otherwise, can be founded on any representation contained in that letter.

Even if it were to be construed as having the meaning which the plaintiffs placed on it, it would still, in our judgment, not avail the plaintiffs as an estoppel. They did not act on it to their detriment …" (216g-217b).

Issue estoppel

“24. The appellants' case on this subject relies on the decision of the Inspector on 21 March 1986 … to grant planning permission for 52 dwellings on Phase 1, the main issues in which were water supply and access. In paragraph 4 of his letter he noted in that ‘there was no dispute that, by reason of previous planning consents in 1973 and 1978, and the start of construction work, there is an extant planning permission covering the whole of the 2.64 hectares.’ In paragraph 5 he refers to the extant permission but only in the context of a material consideration, because he warns that it would not give the appellants any ‘legal or moral right to expect the grant of permission on the present development.’ In the judgement in the Watts case it was found that 4 conditions had to be satisfied before issue estoppel could be applied. Firstly, the whole matter must be fairly and squarely before the Tribunal but, in my opinion, the Inspector was considering a new application on Phase 1 and not whether the old permissions were extant, and it is clear from the Inspector’s letter that the had simply recorded the agreement of the parties on the matter. Secondly, he did not fully address whether or not the permissions were extant. Thirdly, he made no unequivocal decision on the matter and, as these conditions were not fulfilled, the fourth also did not apply.

25. I accept that it was found in the Knott case that issue estoppel could arise upon evidence or an admission made by a party but, in my view, this would only apply if the status of the previous permissions were fairly and squarely before the Inspector in 1986. In that appeal, he was not required to make a decision on this matter and simply accepted the submitted evidence as a material consideration. In addition, as he was only considering an application for a new scheme on Phase 1, it seems to me highly unlikely that the planning status of the Phase 2 land would have affected his decision. I therefore conclude that there is nothing in the Inspector’s decision to justify a claim of issue estoppel.”

“In my judgment, in order that an earlier decision upon the evidence or admission by a party can operate as an 'issue estoppel' in relation to a subsequent issue in subsequent proceedings, certain conditions should be fulfilled:

1. where the issue involves a mixture of fact and law the whole matter must be fairly and squarely before the tribunal;

2. the tribunal must fully address that matter;

3. the tribunal must make an unequivocal decision on that matter; and

4. the fact that the first three conditions are fulfilled should be clear on the face of the decision” (77D-E).

In applying those principles the deputy judge also drew a distinction (at 77G-H) between a finding that was "the essential foundation" for an inspector's conclusion on a principal issue and a finding that was "merely incidental or ancillary to the inspector's decision when dealing with a matter relating to a subsidiary issue".

“Mr Mynors is able to argue that the issue whether planning permission had in fact been implemented was not 'fairly and squarely' before the judge, only because it had been assumed by all parties, the applicant, the Secretary of State and the local planning authority that the planning permission had in fact been implemented and was valid. In those circumstances it is not surprising that the judge dealt shortly with the matter.

As Mr Fookes submits, issue estoppel may be based either on evidence or on the admissions of a party. It would be surprising if the applicants were to find themselves in a worse position precisely because all of the parties were so sure that planning permission had been implemented that they felt it unnecessary to argue about that point in front of the judge.

The validity of the planning permission does not go to a peripheral issue in that litigation. If the planning permission was not still valid, there could have been no valid application under section 73; no valid appeal to the Secretary of State, and no valid application to the High Court. Thus the matter was fairly and squarely before the Court. Since the point was common ground, it was not necessary to deal with the matter in any detail. The judge addressed the issue as fully as was necessary in the circumstances. He reached a clear conclusion that the planning permission was still alive and could be implemented by the applicants. In my judgment, the council as a party to that litigation is bound by that decision” (173-174).

Estoppel by convention

“30. Although this form of estoppel is not normally considered to be relevant in planning matters, the Council state in paragraph 3.3.2 of their statement that the appellants have to show that there was an agreed assumption that the land had the benefit of planning permission, that the assumption formed the basis of a transaction between the Council and the appellants and that the appellants acted on that transaction.

31. In support of their case, the appellants refer to the negotiations between the previous owners and the Council over a period of 25 years, the consequent planning history of the land and their dealings with the Council since they purchased the land. As the Council point out, apart from the original grant of planning permission on Phase 2 in September 1978, all the transactions that took place between G H Webber Limited and the Council concerned the development of Phase 1. The original 1973 permission, its renewal in June 1978, the grant of planning permission on appeal, the subsequent approval of roads and sewers and the later LDC covering the same works were all related to Phase 1. The Building Regulations commencement that saved planning permission 73/28855 could not have implemented the Phase 2 permission 5/76/0287 because it had not been granted at that time. Although Phase 1, in all its forms, has always made provision for extension into Phase 2, it was a separate permission and, as I have found in paragraph 23, the material operations that saved that permission could not be regarded as a commencement of Phase 2.

32. It therefore seems to me that, while there are records of assumptions and transactions between the Council and the previous landowners on Phase 1, apart from the incorrect admission in their evidence to the Inspector in 1986 and in the letter to Black Horse Agency in 1994 that the 1975 Building Regulations commencement saved the 1978 permission, there is no evidence of a similar assumptions or transactions on Phase 2. I therefore conclude that, while the appellants correctly acted on the transactions with the Council on Phase 1, this did not apply to Phase 2 and that the argument for estoppel by convention is thereby not proven.”

Conclusions

MR JUSTICE RICHARDS: Judgment in this case is being handed down. For the reasons given in that judgment the challenged decision of 14th June 2001 is quashed.

MR TAYLOR: My Lord, I would ask for an order that the first defendant pays the claimant's costs in the amount of £11,150, which is an amount that has been agreed between the parties.

MR JUSTICE RICHARDS: £11,150?

MR TAYLOR: Yes, my Lord.

MR JUSTICE RICHARDS: What do you say about that?

MR MOULD: My Lord, I cannot resist the order for costs and I do agree the figure.

MR JUSTICE RICHARDS: In that case an order for costs will be made, assessed in that sum. Thank you.

MR MOULD: My Lord, I do have an application.

MR JUSTICE RICHARDS: Yes.

MR MOULD: It is for permission to appeal against your Lordship's decision.

MR JUSTICE RICHARDS: Yes.

MR MOULD: My Lord, it is for these reasons. Your Lordship has quashed the decision essentially on two grounds. Firstly, that the inspector was not entitled in law to import an objective analysis of the reasonableness of Mr Richardson's reliance upon the Council's representation, it having been established by Mr Richardson's evidence that he had in fact relied upon the letter in question. The second ground is that even if your Lordship were wrong about that, the inspector erred in that he failed properly to take account of the overall factual background in deciding, as he did, and analysing Mr Richardson's reliance on that objective criteria, he had not been entitled to rely upon the statement as he did.

My Lord, as to the first point, it is my submission that that is an issue of law which is of some general importance to the planning process. This will not be the last time in which circumstances of this sort arise in the development control process, and a planning authority, seeking, as such authorities do, to assist developers and the public at large by answering enquiries of relative degrees of formality, will make a statement which may, on analysis, be considered to meet certain of the conditions established in the Western Fish case, but where, on analysis, the statement in question may be said to be somewhat incoherent or inconsistent in the way in which the present statement, I think, by common consent, on analysis turned out to be.

My Lord, it has clearly been a concern of these courts in the past that it would be wrong to place too onerous a burden in law upon planning authorities in those circumstances, because it would have the effect of inhibiting the sensible dissemination of information on a basis which at least lacks the formality of the formal procedures that are set out in the planning acts, for example, in this case the lawful development certificate procedure, and to encourage authorities to try and be helpful where they can. My Lord, that is the broad public interest in the issue. Looking at the matter on a more --

MR JUSTICE RICHARDS: As regards the broad public interest, it was not in issue before me that the context was one where in principle an estoppel could lie.

MR MOULD: No, that is right, and I am not making any submissions in any way seeking to resile from that. It is because of that that I make the submission in effect.

MR JUSTICE RICHARDS: It turns, first, on a fairly narrow point of law, of principle though.

MR MOULD: Yes.

MR JUSTICE RICHARDS: As to whether, in addition to showing reliance, a person seeking to establish an estoppel has to establish that the reliance was reasonable.

MR MOULD: Yes, my Lord, that is right, but when one considers how that issue might arise and how it might effect the practice of planning, one can see that it is something that might arise in a number of cases and give rise to those who are less tutored in the law, as it were, to difficulties in perception.

MR JUSTICE RICHARDS: Are you aware of cases where anything of this sort has arisen? My experience is not as extensive in the planning field, but I confess that I have not.

MR MOULD: I am not aware of any particular ones in my own experience and practice, no. I am simply postulating, I hope reasonably, that it is something that might arise again, because people do make mistakes of this sort. Of course, I am not suggesting -- my learned friend Mr Fookes rightly said that often estoppel will arise precisely because there has been a mistake, but here, of course, the question is whether there was a manifest incoherence and whether that has led to the analysis.

My Lord, that is the broad public point.

MR JUSTICE RICHARDS: Yes.

MR MOULD: As to the narrow legal question itself, as your Lordship has said in the judgment, I repeat the point that there is no authority that either Mr Fookes or I were able to bring before your Lordship directly on the point. Your Lordship has not felt greatly troubled by that because your Lordship has seen the matter in relatively straightforward terms, and I acknowledge that. But I would submit that given the public interest in the matter that I have put forward, and the importance of clear guidance on the point, it would certainly be a matter that would merit consideration by the Court of Appeal, both in the broad terms and also on that narrow legal question as to whether there is indeed, as a matter of law, an objective element brought to bear, particularly in the context of the administrative procedures that we are concerned with here, because it may be that the inspector was right in that context, I would submit, to give some weight to the fact that there was a formal procedure available, that is the section 191, 192 procedure, in the event that obvious incoherence was manifest in the informal response of the officer. My Lord, that is essentially the basis on which I say -- and, of course, I should say that, with respect to your Lordship, I say I have at least a fair chance of persuading the Court of Appeal to take a different view on the point.

MR JUSTICE RICHARDS: You have a further difficulty, of course, that even assuming the principle in your favour, I found against you on the facts.

MR MOULD: I am now going to turn to the facts. What I say on that is, with respect, if the inspector were right, at least on the principle of law, then, of course, the application of that principle to the facts of the case is first and foremost a matter for him, subject to ordinary questions of Wednesbury and taking account of relevant factors. Your Lordship has said he failed properly to take account of the relevant factual context. My submission is simply that I have at least a reasonable prospect of persuading the Court of Appeal to take a different view from your Lordship on that point and that, in effect, the very representation upon which Mr Richardson essentially, in my submission, based his decision to proceed, that is Mr Oakley's response in June 1994, if that were capable of being analysed in law in the way that the inspector did, the inspector was at least entitled to take the view that he did on, if you like, the internal incoherence and manifest incoherence of that statement.

MR JUSTICE RICHARDS: Yes.

MR MOULD: That is the basis on which I make the application and invite your Lordship to grant permission on those grounds.

MR JUSTICE RICHARDS: Thank you very much. What do you say about that?

MR TAYLOR: My Lord, obviously I am coming in at the end of this case.

MR JUSTICE RICHARDS: Yes.

MR TAYLOR: And am therefore less tutored in the issues than either your Lordship or indeed my learned friend.

As I see it, this case turns almost entirely on the application of existing law as set out in Western Fish. There is this narrow issue about objective reasonableness in the reliance, but, as your Lordship has already pointed out, your Lordship, when told to say that even if your findings were wrong on that, on the facts the inspector had erred, and it seems to me, therefore, that this case almost turns entirely on its own facts. There is no real prospect of success on the very narrow point of law, and there is certainly no compelling reason, because this case is confined to its own facts and it is not of significance more generally, as my learned friend suggested.

MR JUSTICE RICHARDS: Yes. Thank you very much.

I am going to refuse permission. I found against the Secretary of State both on the issue of principle and on the particular facts, even assuming that issue of principle in the Secretary of State's favour. In all the circumstances, I am not satisfied that there is a real prospect of success on appeal or that the case is one of sufficient general importance to merit consideration by the Court of Appeal in the absence of such a prospect. The Secretary of State will have to seek to persuade the Court of Appeal that there is a real prospect of success or that the case is one of sufficient general importance if he wishes to take it further.

Thank you very much.