Town and Country Planning (Development Plans and Consultation) Directions 1992 – Planning permissions departing from relevant policies – Estoppel – Permissions modified by Secretary of State – Owner becoming entitled to claim compensation from council – Council seeking to avoid claim – Council effectively applying to have their own decisions quashed – Application made by individual councillors – Whether council under mandatory duty to notify Secretary of State under 1992 Regulations – Delay and other discretionary considerations – Whether affected by identity of applicants
The interested party, Land & Property Ltd (the company), was the owner of Victoria Business Park (the park) on the A30, to the south of Bodmin, Cornwall. At all material times, the 20ha park had the benefit, inter alia, of three outline planning permissions (respectively the 1993, 1994 and 1997 permissions) that allowed further areas to be devoted to non-food retail use. Following applications by the company for approval of matters reserved by the 1997 permission, various bodies expressed strong concern that implementation of the permissions would cause serious financial damage to shopping centres in nearby towns.
In May 1999 a local public inquiry was held. The inspector concluded that the three permissions had departed from relevant policies to such an extent as to be “grossly wrong”. It was accordingly recommended that the permissions should, as a matter of policy, be reviewed by the Secretary of State in exercise of the revocation and modification powers granted by sections 97 and 100 of the Town and Country Planning Act 1990. In March 2000 (the 1993 and 1994 permissions having in the meantime expired), the Secretary of State made an order removing non-food retail use from the 1997 permission.
The defendant council had long been aware that: (i) the making of such an order would entitle the company to claim compensation from the council under section 107 of the Act; and (ii) such liability could only be avoided by quashing the three permissions, thus leaving nothing that could be modified or revoked under section 97. To anticipate any objection that they were suing themselves, the council decided to adopt a procedure (the Bassetlaw procedure) that had been approved by the Court of Appeal in R v Bassetlaw District Council, ex parte Oxby [1998] PCLR 283. Accordingly, a resolution was passed in April 2000, pursuant to which a long-standing councillor, P, sought judicial review, complaining that he was aggrieved by the permissions in his official capacity. Another councillor, C, claimed, ostensibly on his own initiative, to be aggrieved in his capacity of individual taxpayer.
The applicants challenged the permissions on grounds substantially similar to those underlying the inspector’s recommendations in 1999. The company sought to uphold the legality of the permissions, and, in the alternative, contended that relief should, in any event, be refused in the exercise of the court’s discretion (the alternative ground).
Held: The application was dismissed on the alternative ground.
1. The applicants successfully demonstrated that the permissions were unlawfully granted, in that the council had: (i) been “grossly wrong”, as found by the inspector; and (ii) in breach of a mandatory duty imposed by the Town and Country Planning (Development Plans and Consultation) Directions 1992, failed to notify the Secretary of State of three applications that, as accepted by all parties, were “departure applications” within the meaning of para 1(2) of those directions. Upon comparing the directions with the 1975 version, it was plain that the notifying requirement could no longer be treated as merely procedural: Attorney-General at the relation of Co-operative Retail Services v Taff-Ely Borough Council (1979) 1 EGLR 158, R v Doncaster Metropolitan Council, ex parte British Railways Board [1987] JPL 444 and R v Lambeth London Borough Council, ex parte Sharp [1987] JPL 440 distinguished.
2. The applicants had further correctly maintained that there was nothing on the facts to take the case outside the general rule that an estoppel cannot operate so as to inhibit a public authority in the exercise of their powers. It did not, therefore, avail the company to point to the council’s approval of the reserved matters, their earlier decision not to apply for judicial review, and their resistance to the orders proposed by the inspector: Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 and R v Leicester City Council, ex parte Powergen UK Ltd [1999] 4 PLR 91 applied. The cases of Co-operative Wholesale Society Ltd v Chester-le-Street District Council [1998] 3 EGLR 11 and Hillingdon London Borough Council v ARC Ltd unreported 16 June 2000 were distinguishable as instances where an authority were dealing with a person on a commercial or contractual basis.
3. However, given that six years had elapsed since the earliest decision, and almost three years since the most recent, there were weighty reasons for refusing relief in the exercise of the discretion given by section 31(6) of the Supreme Court Act 1981: see, generally, R v Criminal Injuries Compensation Board, ex parte A [1998] QB 659, R v Bassetlaw District Council, ex parte Oxby (supra) and R v Cotswold District Council, ex parte Barrington Parish Council [1998] 75 P&CR 515. In addition to the length of the delay, notable considerations were: the council’s awareness, at all material times, of the facts relating to the unlawfulness of the three decisions; their frequently repeated assertions that the permissions were valid as they stood; the reliance placed by the company upon those assertions; and the inability of the council to quantify, in any meaningful way, the burden that would allegedly fall upon taxpayers.
4. The adoption of the Bassetlaw procedure did not require the court to disregard, in the exercise of its discretion, the fact that neither applicant had, at any material time, disassociated himself from the assertions made by the council.
Christopher Katkowski QC and James Maurici (instructed by Sharpe Pritchard) appeared for Restormel Borough Council and Mr Parkyn; John Litton (instructed by Russell Jones & Walker) appeared for Mr Corbett; Guy Roots QC (instructed by Stephens & Scown, of St Austell) appeared for the interested party, Land & Property Ltd.
Alan Cooklin, barrister
