QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF WANDSWORTH BOROUGH COUNCIL||(CLAIMANT)|
|SECRETARY OF STATE FOR TRANSPORT LOCAL GOVERNMENT AND THE REGIONS||(DEFENDANT)|
|02 UK LTD|
|(formerly BT Cellnet Ltd)||(INTERESTED PARTY)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS S J DAVIES (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
MR G ROOTS QC and MR C BOYLE (instructed by Lawrence Graham) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
"Development is not permitted by Class ..... if -
(a) ..... the ..... apparatus ..... excluding any antenna, would exceed a height of 15 metres above [the] ground ..... "
Condition A.2 (4) sets out a procedure - before beginning development the developer must apply to the local planning authority for its determination as to whether the authority's prior approval to siting and appearance will be required. The application must be accompanied by, amongst other things, a written description of the proposed development. If the authority indicates that its prior approval will be needed then prior approval must be sought. If the authority does not so indicate then after an appropriate period the developer can proceed to erect the mast. In the present case the interested party applied on 11 September 1997 under Part 24 for a determination as to whether prior approval would be required for the mast in question. The form describing the proposed structure said:
"Type of Structure (eg tower, mast etc): Tower overall height 15.00 metres."
The application was accompanied by plans and drawings which showed a "proposed 15m monopole" mast. The legend on the plan said "do not scale". In response to that the council, by notice dated 9 October 1997, determined that its prior approval would not be required for the development in question, that is to say, the -
"erection of 15 metre monopole, three dual polar antennae, two dish antennae and three radio equipment cabinets."
The determination referred to the drawings submitted with the application.
" ..... I am in no doubt that the apparatus installed on the appeal site, comprising a standard 15 metre pole with separate headframe over 2 metres high, exceeds the height limit in Class A.1 (a) of Part 24 of the GPDO."
He went on in paragraph 12 to say:
"12 Nevertheless, just as the drawings submitted as part of the prior notification in 1997 showed the concrete plinth and the height of the base of the mast, so too they showed the headframe. From my inspection the mast and headframe have been installed as shown on the submitted drawings. The Council states that the height measured from the rugby field to the top of the headframe is 17.64 metres. The height shown on the 1:100 scale drawing [reference given] is 17.6 metres. The difference of 0.04 metres is insignificant bearing in mind the total height and that comparison is being made with a scale drawing. The Council maintains that the apparatus installed is materially different from that considered under the prior notification procedure, but I do not agree. I am satisfied that the existing installation is the same as that subject of the Council's prior notification dated 9 October 1997.
13 I accept that further appeal decisions have examined subsequently the question of whether the headframe should be included in the Part 24 height limit. The Leeds decision in particular was not made until February 2000. Nonetheless, I do not consider it would be right to set aside a formal determination previously issued by the Council on which the appellant has acted in good faith. The fact that the headframe exceeded the 15 metre height limit, which the Council now argues is a material difference between what was notified and what has been erected, should have been obvious from [the drawing].
14 It follows that the Council is estopped from arguing now that the installation is not permitted under Part 24 of the GPDO. The basic principle of estoppel is that a person who by some statement or representation of fact causes another to act to his detriment in reliance on the truth of it is not allowed to deny it later, even though it is wrong. The courts have examined this principle in relation to the exercise by local planning authorities of their statutory enforcement powers. In Western Fish Products Ltd v Penwith District Council  All ER 204 the Court of appeal held that where an officer with ostensible authority makes a formal determination on behalf of his authority, it may be bound by it. This is known as estoppel by representation. In this case the determination on 9 October 1997 in response to the appellant's prior notification under Part 24 of the GPDO was issued under the signature of the Borough Planner as a formal determination on behalf of the Council. The appellant company was entitled to take the view that he had the authority to issue that determination. It acted on it by carrying out the development in accordance with the prior notification.
15 The application of estoppel was further examined in R v Caradon District Council ex parte Knott  3 PLR 1, in which it was held that where parties have conducted dealings on one basis it would be wholly unjust for the Council to subsequently proceed in a different manner. This is known as estoppel by convention. In this case it was accepted for a considerable period that the development subject of the 1997 prior notification application ..... was permitted development under Part 24 of the GPDO. A complaint was made to the Local Government Ombudsman regarding the installation and in a letter dated 24 June 1999 in connection with this complaint the Council's Chief Executive stated that the application ..... concerned a proposal that was permitted under Part 24 of the GPDO. Further, the Council refused to grant prior approval on 4 June 1999 on a prior notification concerning a proposal to replace the existing equipment cabins and antennae on the installation subject of this appeal. In issuing that refusal the Council did not state that the mast was not permitted by the GPDO. It was not until 22 August 2000 that the Council wrote to the appellants stating that the installation was not permitted development. The Council is not at liberty now to go back on its previous opinion, which has been expressed to neighbours and other bodies and upon which both the Council and the appellant have previously proceeded."
"16 I therefore conclude that the apparatus installed on the appeal site exceeds 15 metres in height and hence does not come within the scope of Part 24 of the GPDO. Nonetheless, the apparatus that has been installed is that for which the Council issued a determination on 9 October 1997 stating that prior approval to the siting and appearance of the development was not required. Consequently, the Council is now estopped from pursuing enforcement action and I shall therefore quash the notice."
His formal decision was:
"17 In the exercise of the powers transferred to me, I allow the appeal and direct that the enforcement notice be quashed."
"The claimant seeks an order quashing the decision of an Inspector appointed by the Secretary of State dated 1 February 2000, dismissing the appeal against an enforcement notice served by the council and upholding the enforcement notice. Details of the claim are set out in the attached 'Grounds of Appeal and Skeleton Argument.'"
"Wandsworth wishes to appeal pursuant to section 288 of the Town and Country Planning Act 1990 against a decision of the Secretary of State, by his Inspector, dated 1 February 2002 allowing an appeal under section 174 of the 1990 Act by the 2nd Respondent against an enforcement notice issued by Wandsworth under section 172 of the 1990 Act."
"The inspector erred in law in deciding Wandsworth was 'estopped' from bringing enforcement action against the mast as built."
Reasons were then given as to why the inspector was not entitled to rely upon estoppel. The second ground concluded with the proposition that as a matter of law the estoppel identified by the inspector could not operate to prevent Wandsworth's exercise of its enforcement powers.
"It is, I think, clear from this brief summary that a determination is not simply a matter between the applicant and the planning authority in which they are free to agree on whatever procedure they please. It is also a matter which concerns the general public interest and which requires other planning authorities, the Secretary of State on behalf of the national interest and the public itself to be able to participate."
" ..... I think that it is unhelpful to introduce private law concepts of estoppel into planning law. As Lord Scarman pointed out in Newbury District Council v Secretary of State for the Environment  AC 578 ..... estoppels bind individuals on the ground that it would be unconscionable for them to deny what they represented or agreed. But these concepts of private law should not be extended into 'the public law of planning control, which binds everyone.' (See also Dyson J in R v Leicester City Council, ex p Powergen UK Ltd  JPL 629 ..... "
"In the Western Fish the Court of Appeal tried its best to reconcile these invocations of estoppel with the general principle that a public authority cannot be estopped from exercising a statutory discretion or performing a public duty. But the results did not give universal satisfaction: see the comments of Dyson J in the Powergen case ..... It seems to me that in this area, public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppel and the time has come for it to stand upon its own two feet."
" ..... the time has come for public law in this area to stand upon its own two feet. If it does so, I believe greater clarity will result than if it is treated as standing upon some less discrete base."
"1. The hearing on 4 July should not be restricted to procedural points alone. It would be a waste of the court's time to devote a whole day to procedural wrangling when it is tolerably clear that:
(i) The Inspector, rightly or wrongly, allowed the appeal against the enforcement notice under ground (c) alone. His decision letter does not consider ground (a). He did not grant planning permission under ground (a) or on the deemed application for permission.
(ii) It follows that the appeal should have been made under section 289, not section 288.
(iii) The Council needs permission to appeal under section 289, but the court has power to extend time for making the necessary application, and power to allow the minimal amendments which would be required to the form of the present 'Grounds of Appeal'.
(iv) The issue of substance would remain the same. The Inspector's approach to estoppel would now have to be considered in the light of the House of Lords' decision in Reprotech.
(v) I fail to see why the procedural issues, including any application to amend the Notice of appeal and for an extension of time, should not be considered at the outset, followed immediately by the hearing of an appeal under section 289 if any extension of time and permission to appeal was granted."
"The application for leave therefore should not succeed. As for the extension of time, the time limits must be regarded strictly (see Ynys Mon Borough Council v The Secretary of State for Wales (1992) PLR 1) and this, allied to a substantive application without merits, leads me to conclude that an extension of time should not be granted."
It is of considerable significance that the judge had already concluded that there was no arguable case. In the circumstances it is not surprising that he was not prepared to grant an extension of time. Insofar as he considered that the Ynys Mon decision established a general principle that time limits must be regarded strictly, that proposition should be regarded with a degree of caution.
"There are, as it seems to me, certain not immaterial differences between the contents of those two affidavits. That sworn on November 26 asserts that there was due and appropriate diligence on behalf of the applicants in instructing counsel, in the light of the inaccurate belief that the time for appeal was six weeks rather than 28 days. The affidavit of November 27 shows that there was a conversation between Mrs Williams and counsel's clerk on November 6. It also shows that counsel was not instructed to settle the notice of appeal until November 25. Mr Griffiths reiterates the apology of Mrs Williams for misunderstanding the position with regard to the time for appeal. In my judgment, it is the job of legal advisers either to know or to find out the law. If they do not do so, certain consequences may follow. One consequence which, in my judgment, should not follow is that their ignorance should attract judicial dispensation. I am wholly unpersuaded that Mrs Williams' misappreciation of the time-limit for appeal is a reason why time should be extended. Indeed, in so far as it is material, I am wholly unpersuaded that the chronology of events which appears in the affidavits shows due diligence on her part."
"An application by the council to extend time in those circumstances is not surprising and, in the ordinary way, the probability is that the application would have succeeded."
"There is no doubt, in my judgment, from the affidavit of Mr Lewis, who acts for numbers 2 to 9 of the respondents, and from the affidavit of Mr Parry, who acts on behalf of the 18th respondents and on whose behalf Mr Albutt appears before me, that there are very special circumstances in this case which would give rise to prejudice of a substantial kind if I were to extend the period, as I am asked to do. The material before me shows that, for the last two years, or possibly longer, the second to 17th respondents have been residing, with a question mark hanging over their ability to continue residing, in the structures which were the subject of enforcement notices. Each of those respondents, on the material put before me, is of retirement age and many, if not all of them, are in poor health." (my emphasis).