Planning consultations — Speculative development — Developers meeting council planning officers prior to submitting planning proposals — Council charging fee for those consultations — Whether council having right to make charge — Appeal by developers allowed
The appellant developers paid under protest for two consultations concerning speculative development proposals. The consultations were held between themselves and the council’s planning officers prior to the making of formal application for planning permission. The charge was fixed by the council at £25, which was conceded to be reasonable; it was the lawfulness of whether a fee could be charged at all that was in issue.
It was agreed that in order to charge for pre-application advice, the council’s statutory authority had to be found — if at all — in section 111(1) of the Local Government Act 1972. (The fees prescribed for actual planning applications fell under section 87(1) of the Local Government, Planning and Land Act 1981. Section 111 provided, inter alia: “… a local authority shall have the power to do anything… which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”. The council contended that to impose a charge for pre-application giving of advice was incidental to their function of determining planning permission applications.
On a challenge by way of judicial review, the developers’ application was dismissed in the High Court ([1989] 2 PLR 22) and the Court of Appeal ([1990] 2 PLR 109). The developers appealed to the House of Lords.
Held The appeal was allowed.
1. The word “function” in section 111(1), which gave statutory recognition to the common law rule governing the activities of local authorities, must be 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 … a local authority has power to do all the ancillary things requisite for carrying out those activities properly”: Hazell v Hammersmith and Fulham London Borough Council [1990] 2 QB 697.
2. The consideration and determining of planning applications was a function of the council but the giving of pre-application advice, although it facilitated and was conducive to and incidental to the function of determining planning applications, was not itself a function of the council. Thus it was one thing to say that the giving of pre-application planning advice facilitated or was conducive or incidental to the council’s planning functions but it was quite another thing to say that for the council to charge for that advice also facilitated or was conducive to or incidental to those functions.
3. Despite the council’s submission that they could charge for a function which they had a discretion to provide, as opposed to one that they had a duty to provide, it did not by any means follow that all of the discretionary functions of the council contemplated by section 111 were services for which it was permissible to charge in the absence of express authority to do so. The rule was that a charge could not be made unless the power to charge was given by express words or “by necessary implication”. Those last words imposed 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. The council’s attempt to contrast the charging for duty functions as against discretionary functions was vitiated when regard was paid to the large number of discretionary functions for which express statutory authority to charge had been enacted.
4. The council’s interpretation of section 111(1) would allow them to charge for the performance of every function, both obligatory and discretionary, which provided a service, but the power to charge could be implied only “as necessarily arising from the words of the statute”: per Lord Ackner in Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884, CA; (1922) 38 TLR 781, HL. The power to give pre-application advice was neither a duty nor a discretionary express power but was a subsidiary power arising by virtue of section 111(1) because it was calculated to facilitate or was conducive or incidental to the discharge of one of the council’s functions. To charge for the exercise of that power was, “at best, incidental to the incidental and not incidental to the discharge of the functions.”
Anthony Scrivener QC and Richard Rundell (instructed by Metson Cross & Co) appeared for the appellants; and David Mole QC and Jane Oldham (instructed by the solicitor to Richmond upon Thames London Borough Council) appeared for the respondents.