United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/251

McCarthy & Stone (Developments) Limited (Appellants) v. London
Borough of Richmond upon Thames (Respondents)

JUDGMENT

Die Jovis 14° Novembris 1991

Upon Report from the Appellate Committee to whom was
referred the Cause McCarthy & Stone (Developments) Limited
against the London Borough of Richmond upon Thames, That the
Committee had heard Counsel as well on Monday the 20th as on
Tuesday the 21st days of May last, upon the Petition and
Appeal of McCarthy & Stone (Developments) Limited of Homelife
House, 26/32 Oxford Road, Bournemouth, Dorset, HB8 8JZ,
praying that the matter of the Order set forth in the Schedule
thereto, namely an Order of Her Majesty's Court of Appeal of
the 28th day of February 1990, might be reviewed before Her
Majesty the Queen in Her Court of Parliament and that the said
Order might be reversed, varied or altered or that the
Petitioners might have such other relief in the premises as to
Her Majesty the Queen in Her Court of Parliament might seem
meet; as upon the case of the London Borough of Richmond upon
Thames lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side
in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty's Court of
Appeal of the 28th day of February 1990 complained of in the
said Appeal be, and the same is hereby, Set Aside and that the
Order of Mr. Justice Popplewell of the 30th day of January
1989 be, and the same is hereby, Set Aside: And it is further
Ordered, That the decision of the London Borough of Richmond
upon Thames of 27th October 1987 be quashed and that it be
declared that the London Borough of Richmond upon Thames has
no power to charge a fee for answering enquiries or requests
for information before the making of an application for
planning permission: And it is also further Ordered, That
the Respondents do pay or cause to be paid to the said
Appellants the Costs incurred by them in the Courts below and
also the Costs incurred by them in respect of the said Appeal
to this House, the amount of such last-mentioned Costs to be
certified by the Clerk of the Parliaments if not agreed
between the parties: And it is also further Ordered, That the
Cause be, and the same is hereby, remitted back to the Queen's
Bench Division of the High Court of Justice to do therein as
shall be just and consistent with this Judgment.

Cler: Parliamentor

Judgment: 14.11.91

HOUSE OF LORDS

MCCARTHY & STONE (DEVELOPMENTS) LIMITED

(APPELLANTS)

v.

LONDON BOROUGH OF RICHMOND UPON THAMES

(RESPONDENTS)

Lord Chancellor
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Ackner
Lord Lowry

LORD MACKAY OF CLASHFERN L.C.

My Lords,

I have had the advantage of reading in draft the speech to
be delivered by my noble and learned friend, Lord Lowry. I agree
with him that this appeal should be allowed with costs, for the
reasons he gives.

LORD BRIDGE OF HARWICH

My Lords,

I have had the advantage of reading in draft the speech of
my noble and learned friend, Lord Lowry. I agree with it and for
the reasons he gives I would allow the appeal.

LORD BRANDON OF OAKBROOK

For the reasons given in the speech to be delivered by my
noble and learned friend, Lord Lowry, I would allow the appeal.

LORD ACKNER

My Lords,

I have had the advantage of reading in draft the speech to
be delivered by my noble and learned friend, Lord Lowry. I agree



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with it and for the reasons he gives I, too, would allow this appeal
with costs.




LORD LOWRY

My Lords,




This appeal is concerned with the legality of the policy of
the Council of the respondents London Borough of Richmond-upon-
Thames ("the Council") which it adopted on 2 July 1985 and under
which it has made a charge for consultations concerning
speculative development or redevelopment proposals between
developers and the Council's planning officers preliminary to the
making of formal applications for planning permission. The charge
fixed by the Council (which was selective) was £25 and is
conceded to be reasonable in both its incidence and its amount. It
is, however, the lawfulness of charging at all for this service
which is in issue.

The appellants McCarthy & Stone (Developments) Limited
("the developers") paid under protest for two consultations which
were held on 13 August 1986 and 12 January 1987 and then,
having first made unsuccessful representations to the Council
concerning the legality of its policy, sought by way of judicial
review to challenge the Council's decision (contained in a letter
dated 27 October 1987) to continue the practice of charging for
preliminary consultations.

Popplewell J. dismissed the developers' application and the
Court of Appeal (Slade and Mann, L.JJ. and Sir David Croom-
Johnson) unanimously dismissed the appeal from his decision. The
judgment of the Court was delivered by Slade L.J. and contains an
admirable summary of the facts which I could not hope to improve
on and which I gratefully adopt ([1990]) 2 W.L.R. 1294, 1296A-
1297H).

The Council is a local planning authority and by virtue of
section 29 of the Town and Country Planning Act 1971 (now
superseded by the Town and Country Planning Act 1990, of which
the corresponding provision is section 70) was charged with the
duty of determining applications for planning permission properly
submitted to it. Section 87(1) of the Local Government, Planning
and Land Act 1980 empowers the Secretary of State to provide by
regulations for the payment of a fee of the prescribed amount to
a local planning authority in respect of planning applications. Such
regulations have been made, but it is common ground that the fees
which they authorise (or could properly authorise, having regard to
the power conferred) relate only to planning applications and not
to any pre-application enquiries or consultations.

It is agreed that, in order to charge for pre-application
advice, the Council needs a further statutory authority and that
that authority must be found, if found at all, in section 111(1) of
the Local Government Act 1972 ("the Local Government Act")
either in express words or by necessary implication. The section
reads as follows:

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"(1) Without prejudice to any powers exercisable apart
from this section but subject to the provisions of this Act
and any other enactment passed before or after this Act, a
local authority shall have power to do 'any thing (whether or
not involving the expenditure, borrowing or lending of money
or the acquisition or disposal of any property or rights)
which is calculated to facilitate, or is conducive or
incidental to, the discharge of any of their functions.

2. For the purposes of this section, transacting the
   business of a parish or community meeting or any other
   parish or community business shall be treated as a function
   of the parish or community council.

3. A local authority shall not by virtue of this section
   raise money, whether by means of rates, precepts or
   borrowing, or lend money except in accordance with the
   enactments relating to those matters respectively.

(4) In this section 'local authority' includes the Common
Council."

The basis for the proposition, which was accepted by both
sides, that statutory authority to charge is required is the well-
known principle exemplified by the ratio decidendi of Attorney-
General v. Wilts United Dairies Limited (1921) 37 T.L.R. 884
(C.A.); (1922) 38 T.L.R. 781 (H.L.):

"In these circumstances, if an officer of the executive seeks
to justify a charge upon the subject made for the use of
the Crown (which includes all the purposes of the public
revenue), he must show, in clear terms, that Parliament has
authorized the particular charge. The intention of the
Legislature is to be inferred from the language used, and
the grant of powers may, though not expressed, have to be
implied as necessarily arising from the words of a statute;
but in view of the historic struggle of the Legislature to
secure for itself the sole power to levy money upon the
subject, its complete success in that struggle, the elaborate
means adopted by the Representative House to control the
amount, the conditions and the purposes of the levy, the
circumstances would be remarkable indeed which would
induce the Court to believe that the Legislature had
sacrificed all the well-known checks and precautions, and,
not in express words, but merely by implication, had
entrusted a Minister of the Crown with undefined and
unlimited powers of imposing charges upon the subject for
purposes connected with his department."

(per Atkin L.J., 37 T.L.R. 884, 886.) At p. 887 Atkin L.J. further
observed:

"It makes no difference that the obligation to pay the
money is expressed in the form of an agreement. It was
illegal for the Food Controller to require such an agreement
as a condition of any licence. It was illegal for him to
enter into such an agreement. The agreement itself is not
enforceable against the other contracting party; and if he
had paid under it he could, having paid under protest,



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recover back the sums paid, as money had and received to
his use."

I refer also to the observation of Scrutton L.J. at p. 885:

"It is conceivable that Parliament, which may pass
legislation requiring the subject to pay money to the Crown,
may also delegate its powers of imposing such payments to
the executive, but in my view the clearest words should be
required before the courts hold that such an unusual
delegation has taken place. As Wilde C.J. said in Gosling v.
Veley, 12 Q.B., at p. 407: 'The rule of law that no
pecuniary burden can be imposed upon the subjects of this
country, by whatever name it may be called, whether tax,
due, rate or toll, except under clear and distinct legal
authority, established by those who seek to impose the
burden, has been so often the subject of legal decision that
it may be deemed a legal axiom, and requires no authority
to be cited in support of it."'

It is further conceded by the Council that the principle applies,
whether the money is to be received by the Crown or central
Government or by a local authority such as the Council here.

In order to succeed in the appeal, the developers must
demonstrate to your Lordships that the Court of Appeal were
wrong, but, speaking generally, as the courts below rightly said, it
is for the local authority to show that it has the right to charge
for the service provided.

My Lords, I have said that the power to charge a fee for
the relevant service must, if it exists, be found in section 111(1)
either expressly or by necessary implication. This provision, as
both sides agree, gives statutory recognition to the common law
rule governing the activities of local authorities and other
statutory corporations, as recognised in such well-known authorities
on the doctrine of ultra vires as Ashbury Railway Carriage Co. v.
Riche (1875) LR 7 HL 653, A.-G. v. Great Eastern Railway Co.
(1880) 5 AppCas 473 and A.-G. v. Fulham Corporation [1921] 1
Ch. 440. A local authority could at common law do anything
which was reasonably incidental to its functions and the Council
here relies on the proposition that to impose a charge for pre-
application advice is reasonably incidental, not merely to the
giving of that advice, but also to the Council's function of
considering and determining applications for planning permission.

The definition of "function" is important and I would
therefore refer at this point to the recent case of Hazell v.
Hammersmith and Fulham London Borough Council and others
[1990] 2 Q.B. 697 (D.C. and C.A.); [1991] 2 W.L.R. 372 (H.L.)
where certain local authorities had engaged in speculative financial
transactions and their power to do so was in question. In the
Divisional Court Woolf L.J. reviewed section 111(1) and continued
(p. 722D):

"This subsection puts in a statutory form the long-
established principle that local authorities have implied
power to do anything which is ancillary to the discharge of
any of their functions.

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"The fact that subsection (1) is expressly made
subject to 'the provisions of this Act' make it clear that it
is important to construe section 111(1) in its context. The
reference to expenditure, borrowing or' lending, etc., within
the brackets in the subsection do not themselves confer any
power to expend, borrow or lend money, etc., but only make
it clear that the fact that those activities are involved does
not prevent the activities being within the power of the
authority which are authorised by this subsection.

"The critical part of the subsection are the words
'calculated to facilitate, or is conducive or incidental to,
the discharge of any of their functions.' Before the
subsection can authorise an activity which is not otherwise
authorised there must be some other underlying function
which is authorised, to the discharge of which, the activity
will facilitate or be conducive or incidental.

"What is a function for the purposes of the subsection
is not expressly defined but in our view there can be little
doubt that in this context 'functions' refers to the
multiplicity of specific statutory activities the council is
expressly or impliedly under a duty to perform or has power
to perform under the other provisions of the Act of 1972 or
other relevant legislation. The subsection does not of itself,
independently of any other provision, authorise the
performance of any activity. It only confers, as the
sidenote to the section indicates, a subsidiary power. A
subsidiary power which authorises an activity where some
other statutory provision has vested a specific function or
functions in the council and the performance of the activity
will assist in some way in the discharge of that function or
those functions."

In the Court of Appeal Sir Stephen Brown, P., delivering the
judgment of the court, adverted to A.-G. v. Great Eastern Railway
Co. supra and, having set out section 111(1), said (at p. 785C):

"Standing by itself, this subsection would not seem to
give rise to any particular difficulty. We agree with the
Divisional Court that in this subsection the word 'functions,'
which is accompanied by no statutory definition, is used in a
broad sense, and is apt to embrace all the duties and
powers of a local authority: the sum total of the activities
Parliament has entrusted to it. Those activities are its
functions. Section 111(1) confirms that, subject always to
any contrary statutory provision, a local authority has power
to do all the ancillary things requisite for carrying out those
activities properly. This construction accords with the
codifying purpose for which the subsection was enacted."

In this House Lord Templeman said at p. 383C:

"In Attorney-General v. Great Eastern Railway Co.
(1880) 5 AppCas 473, Lord Blackburn said, at p. 481:

'where there is an Act of Parliament creating a
corporation for a particular purpose, and giving it
powers for that particular purpose, what it does not



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expressly or impliedly authorise is to be taken to be
prohibited; ...'

"In the same case Lord Selborne L.C. said, at p'. 478,
that the doctrine of ultra vires:

'ought to be reasonably, and not unreasonably,
understood and applied, and that whatever may fairly
be regarded as incidental to, or consequential upon,
those things which the legislature has authorised,
ought not (unless expressly prohibited) to be held, by
judicial construction, to be ultra vires.'

"In the same vein Lord Blackburn said, at p. 481:

'those things which are incident to, and may
reasonably and properly be done under the main
purpose, though they may not be literally within it,
would not be prohibited.'

"Section 111 embodies these principles.

"I agree with the Court of Appeal [1990] 2 Q.B. 697,
785c that in section 111 the word 'functions' embraces all
the duties and powers of a local authority; the sum total of
the activities Parliament has entrusted to it. Those
activities are its functions."

The observations of my noble and learned friend Lord Ackner at p.
398B were to the same effect where he said, "I accept that
'functions' in section 111(1) covers the powers and duties of the
local authority under the various provisions of the Act." (emphasis
supplied.)

It is, accordingly, clear that the consideration and
determining of planning applications is a function of the Council,
but the giving of pre-application advice, although it facilitates, and
is conducive and incidental to, the function of determining planning
applications, is not itself a function of the Council.

Thus, it is one thing to say that the giving of pre-
application planning advice facilitates or is conducive or incidental
to the Council's planning functions but it is quite another thing to
say that for the Council to charge for that advice also facilitates
or is conducive or incidental to those functions. The Council
presented its case on the basis that charging for the service
facilitates, or is conducive or incidental to, the giving of the pre-
application advice but, even assuming that to be a fact this way
of presenting the case would simply amount to saying that
imposing a charge facilitates, or is conducive or incidental to, a
service which in its turn facilitates, or is conducive or incidental
to, the Council's planning functions. The developers, on the other
hand, submit that, in order to qualify as something which is
authorised by section 111(1) the imposition of a charge for pre-
application advice must facilitate, or be conducive or incidental to,
the planning functions themselves. If not, the developers contend,
the charge is not within the powers of the Council, since it is
admittedly not authorised by any provision outside section 111. In
this connection the argument that something which is incidental to



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the incidental (but not incidental to the function) does not pass
the test is not a novelty: see Attorney-General v. Manchester
Corporation [1906] 1 Ch 643, 656 per Farwell J., cited in Hazell
v. Hammersmith and Fulham London Borough Council supra at p.
724.

My Lords, let me now turn to another argument for the
Council which found favour in the courts below. In their judgment
the Court of Appeal have contrasted functions, such as planning,
which the Council has a duty to provide, with those, such as
providing a museum, a library or a public park, which it has power
to provide, on the basis that without statutory authority the
Council cannot charge for the provision of a function which it has
a duty to provide, whereas it can charge for a function which it
has merely power to provide (or not to provide) at its discretion.
Thus, it is said, the Council can charge for a service which at its
discretion it provides by virtue of section 111(1), as facilitating or
being conducive or incidental to the relevant function (in this case
the function of considering and determining planning applications.)

My Lords, the Council's interpretation of section 111(1) is
built on that proposition, but I consider its reasoning to be
mistaken, because it does not by any means follow that all of the
discretionary functions of the Council or all of the facilitating or
incidental activities contemplated or possibly contemplated by
section 111 are services for which it is permissible to charge in
the absence of express authority to do so. The rule is that a
charge cannot be made unless the power to charge is given by
express words or by necessary implication. These last words
impose a rigorous test going far beyond the proposition that it
would be reasonable or even conducive or incidental to charge for
the provision of a service. Furthermore, as it seems to me, the
relevance of the contrast attempted to be drawn, with respect to
the power of a council to charge, between duty functions and
discretionary functions is vitiated when one has regard to the large
number of discretionary functions for the provision of which
express statutory authority to charge has been enacted. I am not
impressed by the submission that an express power to charge for
the performance of discretionary functions may have been
conferred "for the sake of clarity."

In support of its case the Council instanced situations in
which, without any express authority, it seemed obvious that a
charge would properly be made, but to say that the Council can
receive payment for the sale of redundant and worn out equipment
does not, to my mind, advance the argument that a Council can
without statutory authority charge for a service. The power to
sell, for example, old motor cars for which the Council no longer
has a use necessarily implies that, in the interests of the
ratepayers, the Council will recover from a commercial transaction
the return which any seller would expect to receive, as a normal
incident of local government administration. The provision for a
financial consideration of facilities to hold a conference was also
discussed. This, on the assumption that it is a legitimate activity,
has the character of conducting a business, and it would be a
strange and unjust result if those who enjoyed the use of the
facilities provided were to do so at the expense of the ratepayers
or their modern equivalent. I would not be prepared to say (and
it is for present purposes unnecessary to say) that, in the absence



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of express statutory power, there can never be a case in which
the power to charge arises by necessary implication, but I have
heard no convincing argument to show how the present facts, could
support such an implication.

The Council has cited Harris v. Wyre Forest District Council
[1988] Q.B. 835 (C.A.); [1990] 1 AC 831 (H.L.), where, as a
prospective mortgagee, the local authority charged the prospective
purchasers and mortgagors of a house a valuation and
administration fee of £22. The explanation for this may be that
Parliament, having authorised the council to lend money on
mortgage and having, by section 43(3)(e) of the Housing (Financial
Provisions) Act 1958, required the council to obtain a valuation
before advancing any money, must be taken to have authorised the
council to conduct its business transaction in the same way as a
bank or a building society might do. The question in that case, as
your Lordships will recall, was not concerned with the lawfulness
of demanding payment of the £22 fee. That point was not
discussed and I refrain from discussing it now.

Your Lordships have seen the affidavit of Mr. G. R.
Cheesman, assistant head of legal services with the Council.
There is, of course, statutory authority for a council to charge for
a land charges search. As for the charges made for the other
services mentioned, they would all need to be considered
individually in order to decide by what authority, if any, and with
what propriety each one has been imposed.

Mr. Scrivener, for the developers, relied before your
Lordships, as he had in the Court of Appeal, on section 150 of the
Local Government and Housing Act 1989 which only came into
force on 16 January 1990, having received the Royal Assent on 16
November, 1989. It reads:

"(1) The Secretary of State may make regulations
providing that a charge may be imposed in respect of
anything -

1. which is done by any relevant authority or by any
   relevant authority of a prescribed description,

2. which is prescribed or falls within a prescribed
   description,

(c) in respect of which there is no power or duty to
impose a charge apart from the regulations, and

(d) which is not done in the course of exercising an
excepted function.

2. The regulations may include such provision as the
   Secretary of State sees fit as regards charges for which the
   regulations provide; and nothing in subsections (3) to (5)
   below or section 190(1) below is to prejudice this.

3. The regulations -

(a) may be made as regards services rendered, documents
issued, or any other thing done by an authority
(whether in pursuance of a power or a duty);

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(b) may provide that the amount of a charge (if imposed)
is to be at the authority's discretion or to be at its
discretion subject to a maximum:

(4) Where the regulations provide that a charge may not
exceed a maximum amount they may -

1. provide for one amount, or a scale of amounts to
   cover different prescribed cases;

2. prescribe, as regards any amount, a sum or a method
   of calculating the amount.




5. The regulations may include such supplementary,
   incidental, consequential or transitional provisions as appear
   to the Secretary of State to be necessary or expedient.

6. No regulations may be made under this section unless
   a draft of them has been laid before and approved by a
   resolution of each House of Parliament."

It should be noted that regulations made pursuant to this provision
are to be subject to affirmative resolution of both Houses.

The claim on the part of the developers is that the
enactment of this section shows that the Council's interpretation
of section 111(1) cannot be well-founded, because, if it were,
section 150 would be left without a useful function. I do not
think, however, that this contention is necessarily correct, because
section 150(l)(c) might be contemplating a duty function in regard
to which neither a power nor a duty to charge had been enacted.
The circumstances in which resort can be had to later legislation
for the purpose of statutory interpretation are not entirely clear:
see Maxwell, Interpretation of Statutes 13th edition pp. 69-71 and
Ormond Investment Co. v. Betts [1928] A.C. 143, but I do not
propose to trouble your Lordships with a discussion of the point on
this occasion because I do not consider in any event that section
150 of the Act of 1989 provides a reliable indication as to the
meaning of section 111. Two things, however, can be said: section
150(3)(a) does not make in the charging context any distinction
between discretionary functions and duty functions; and the
legislature, having enacted section 150, has provided a convenient
means of tidying up a confused scene, so far as charging for
services in the future is concerned.

What the Court of Appeal had to say about section 150 in
their judgment is found at p. 1304E:

". . . section 150 et seq. of the Local Government and
Housing Act 1989 contain a number of new provisions
relating to the imposition of charges by certain authorities,
but we do not think that this legislation affects the question
which we have to decide."

I respectfully agree.

The developers in their notice of appeal from Popplewell J.
put forward another argument based on section 111(3) to the



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effect that that subsection completely prevents a local authority
from raising money by virtue of section 111, and in particular by
virtue of section 111(1), with the result that no charge can be
made for any service unless authority is found outside section 111.
The Court of Appeal, quite rightly in my view, rejected that
argument. The subsection forbids (1) the raising of money by any
one of three methods and (2) the lending of money, in each case
except in accordance with the specific enactments which deal with
the subject. The developers' argument would require the addition
of the words "or otherwise" after the word "borrowing" to get off
the ground and, even then, in the context of "rates, precepts or
borrowing," to equate charging for a service with the raising of
money appears to me to demand a very forced interpretation of
language. I therefore agree with the conclusion of the Court of
Appeal that section 111(3) "imposes no restrictions on the Council's
powers directly material for present purposes." I would, however,
point out that section 111(3), on its true construction, does not
provide any affirmative support for the argument that section
111(1) is an authority for making the charge with which this
appeal is concerned.

The clues to interpretation to be derived from other
statutory provisions were of modest persuasive force, but perhaps I
might mention certain paragraphs of circular 28/83 issued jointly
by the Department of the Environment and the Welsh Office on 29
December 1983:

"7. The Secretaries of State recognise that local planning
authorities are concerned to ensure that the development
control system is operated in a way which serves the best
interest of the community and secures developments of good
quality. They also attach great importance to the timely
handling of planning applications, and authorities are
reminded of the need to take account of the advice
contained in DOE Circular 22/80 (Welsh Office Circular
40/80). Local authorities, applicants and consultees all have
important roles to play in ensuring not only a speedy and
efficient service but also one which takes proper steps to
secure local planning policies.

"8. Local authorities' attention is drawn to the need for:

(i) prompt decisions to be seen to be a priority by local
authority members and officers;

(ii) procedures to be designed to avoid unnecessary delay;

(iii) those procedures to be reviewed periodically and
adjustments made to meet changing circumstances;

(iv) early informal discussions with applicants and their
agents to be encouraged. Where possible, these
should include discussion about features of schemes
which may give rise to the imposition of conditions in
the event of permission being granted. Applicants
can then consider the scope for adjusting the scheme
prior to formal submission of a planning application so
as to render the conditions unnecessary if the local
planning authority are minded to grant planning
permission;

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(v) planning departments to (a) co-ordinate the
requirements of statutory consultees; (b) make
particular efforts to resolve any conflicting
requirements; and (c) where necessary, invite those
organisations and departments with an interest in
applications to be represented at any meetings with
applicants or their agents.

"9. The attention of applicants is drawn to the need for
early discussions to be held with local planning authorities
so that:

. . .

"16. There will be some financial and manpower costs
associated with the implementation of this code. These
costs will vary between local authorities according to the
extent to which information is already collected by them for
their own use. However, there may be some off-setting
benefits to be obtained by local authorities from the use of
the information required by the code in the management of
their development control duties. . . ."

The developers placed some reliance on paragraph 16 as showing
that local authorities were expected to incur expense by providing
a mutually helpful service, but, as your Lordships have seen in the
present case, even if fees were charged, the recommended service
was unlikely to pay for itself out of direct revenue. I do not
consider that it is either justifiable or necessary for the developers
to look to such a slender argument in order to support their case.

My Lords, I come back to section 111(1), the relevant
provision. The Council admits that it cannot without express
authority charge for a "duty function," but it still has to say that
the ability to charge for pre-application advice is based on the
"power to do any thing" which is "incidental" (I deliberately choose
the most neutral qualification) "to the discharge of any of (the
Council's) functions." To charge for performing a function (subject
always to Wednesbury considerations, which do not arise here) must
always be incidental to the provision of the service provided.
Therefore the Council's interpretation of section 111(1) would allow
it to charge for the performance of every function, both obligatory
and discretionary, which provided a service. (And, even without
section 87(1), there would be nothing unreasonable or irrational in
charging a proper fee for determining a planning application.)
Such a construction of the subsection cannot possibly be justified,
and I say this before even considering the point that, in the
absence of express statutory authority, the power to charge can
only be implied, in the words of Atkin L.J. supra "as necessarily
arising from the words of a statute."

There is yet a further point, to which I have already
adverted. As the Court of Appeal have said (p. 1302H), the power
to give pre-application advice is neither a duty nor a discretionary
express power, but is a subsidiary power arising by virtue of
section 111(1) (which has codified the common law), because it is
calculated to facilitate, or is conducive or incidental to, the
discharge of one of the Council's functions. To charge for the



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exercise of that power is, at best, incidental to the incidental and
not incidental to the discharge of the functions.

A further point (p. 1303D-H) which commended itself to the
Court of Appeal was the argument that, since the Council was not
obliged to provide the service in question, it could state on a
"take it or leave it" basis that it was willing to provide it for a
reasonable fee, as if entering into a contract. I consider this to
be an untenable proposition which, if correct, would justify a local
authority in charging for any discretionary service, but which in
reality is in conflict with the second principle enunciated by Atkin
L.J. in A.-G. Wilts United Dairies Ltd. supra at p. 887 (already
cited).

My Lords, for these reasons I would allow the appeal and
would order the Council to pay the developers' costs in this House
and in the courts below.

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