by Robert Lewis
“But the planning officer told me it would be all right!” — famous last words or a legal defence?
In discussing development proposals with the officers of a local authority, developers will often want to know to what extent they can rely on the comments of the officers. The question can also arise where it is not new development which is under discussion but a development which is under already taken place and there is doubt as to its legality or as to whether an enforcement notice should be served. This article seeks to answer the questions: what scope do local authorities have to delegate to officers; can an officer delegate to a colleague; is the authority bound by an officer’s comments even if he was not authorised to make them; and what remedies are available if wrong advice is given?
Throughout this article the word “developer” is used to mean anyone developing land. He may, of course, be a private individual.
Delegation
Under the Local Government Act 1972, section 101, a local authority:
may arrange for the discharge of any of their functions by —
(a) a committee, a sub-committee or an officer of the authority;
The section goes on to provide that where functions have been delegated to a committee, then the committee may delegate them on to a subcommittee or an officer, and where a subcommittee is given power to act, it can delegate to an officer.
While this section is very familiar to local government lawyers and those who deal with local authorities, it contains, like many familiar friends, some surprises. For example, it was not until 1986 and the decision in R v Secretary of State for the Environment, ex parte Hillingdon LBC [6] 1 All ER 810 [1986] 2 All ER 273n that it was appreciated by many that “chairman’s action” — a common local government procedure where a committee chairman was authorised to act — was unlawful. In that case the court held that a “committee” cannot consist of a single member.
Again, it does not seem to be lawful for a subcommittee with delegated powers to delegate on to a smaller subcommittee, although this is quite often done.
This paper, however, is concerned not with delegation to elected members but to officers. What aspects of the section are relevant here?
First there is the question “what is a local government officer?” Can an authority delegate to someone employed by a private firm? The answer appears to be “no”. An officer must be an employee of the authority. In many contexts, the word “officer” means the holder of an “office” — ie a position which exists irrespective of its holder. An example of such an “office” is that of a company director. The word “officer” in the phrase “local government officer” does not have this meaning, and it appears to mean anyone employed directly by a local authority. Section 112 of the Local Government Act, under the heading “Appointment of Staff”, states that “a local authority shall appoint such officers as they think necessary”. There is no separate provision allowing the appointment of manual workers, and so, legally, all staff are “officers”.
The question whether manual staff were “officers” was raised in the Court of Appeal in the case of R v Hertfordshire County Council, ex parte NUPE [5] 1 IRLR 258.
In that case Hertfordshire had dismissed most of its school meals staff so that it could offer them new contracts of employment on less favourable terms. NUPE, on behalf of the dinner ladies, challenged the legality of the sackings. In the hearing in the Court of Appeal the Master of the Rolls, Lord Donaldson, queried whether the dinner ladies were “officers”. They are certainly not described as “local government officers” in everyday language. It was accepted by the parties, however, that in law they were, and Lord Donaldson did not overturn the decision of Mr Justice Mann, who heard the case in the court below, that they were officers. Since all staff are “officers”, a local authority can delegate to an employee of any grade and status, but it cannot delegate to a private contractor.
This does not mean, of course, that a local authority cannot engage private contractors to carry out work for them. This has always been done and the Local Government Act 1988, with its regime of compulsory tendering, is likely to increase this significantly. But is not a contractor emptying dustbins or mending roads “discharging a function” of the local authority, to use the words of section 101? This leads on to a further quirk in the section — the definition of a “function”.
In one sense, the functions of a local authority are those things Parliament has entrusted it to do. For example, providing schools, running libraries, determining planning applications. But in section 101 the word “function” is used in a narrower sense. Here it means taking decisions about those services. It does not mean merely implementing decisions that have been taken. Contractors can be engaged to implement a decision of a local authority. They cannot be engaged to take decisions. It is decision-taking that section 101 allows to be delegated to an officer.
This distinction between decision-taking and implementation is not as straightforward as it sounds. Decisions have to be made as to how a decision should be implemented. For example, if a planning committee resolves to enter into a section 52 agreement it will be the local authority lawyer’s job to produce that agreement. How much freedom does he have? He does not have freedom to broaden the section 52 agreement to cover aspects of the development not contained in the committee resolution. But he does have freedom to decide the form of the agreement. This is part of implementing the committee’s decision and does not encroach on to the territory of the policy decision itself.
This distinction — between decision-taking and implementation — can be demonstrated by looking at one area, outside planning, which is an exception to the normal rule that delegation to a contractor is not possible. Local authorities frequently use contractors to maintain their stock of houses. Private painters, electricians etc are often engaged. Recently, however, the Government has been keen to allow the management of houses — the taking of decisions about which houses need repainting or rewiring — to be taken out of the hands of local authorities. To achieve this, new legislation was needed. Section 10 of the Housing and Planning Act 1986 was passed which sets out a rigorous procedure that must be gone through before a local authority can allow the management of its council houses to be performed by someone else.
So there we have it. A local authority can delegate decision-making to an employee. It cannot delegate decision-making to a contractor. It has no need to delegate implementation of decisions to officers, but in the act of implementing decisions, an officer does have freedom to decide how to do it.
Can an officer delegate to a colleague?
It is normal practice in local government for delegations to officers to be in the name of the chief officer of a department. It will be “the district planning officer” who is given the ability to decide certain types of planning application.
It is also normal for the chief officer not to take many of these decisions himself but to authorise members of his staff to do so. Is this lawful?
This point was considered in the case of Provident Mutual Life Assurance Association v Derby City Council [1] 1 WLR 173. It was a case decided by the House of Lords. Derby council had authorised their city treasurer to be the proper officer for the administration of their finance. One of his jobs was to decide when new buildings were completed so that their owners became liable to pay rates. A notice of liability for rates was served on Provident Mutual as the owners of a new building. They discovered that the notice had in fact been issued not by the city treasurer, but by the principal rating assistant. The city treasurer himself knew nothing about it. The House of Lords held that the notice was still lawful. Lord Roskill said:
Parliament plainly contemplated that the actual machinery of enforcement and collection would not be operated personally by some senior local government official but would be so operated by the relevant senior official’s staff.
That case has established that it is lawful for an officer with delegated authority to pass on that authority to his subordinates.
The Provident Mutual case has been followed in two recent planning cases, both involving enforcement notices. The first case is Cheshire County Council v Secretary of State for the Environment [8] JPL 30. There, a senior assistant solicitor at the county council served enforcement notices and the recipients appealed to the Secretary of State. One ground of appeal was the argument that the enforcement notices were invalid because the county council had delegated the function of issuing enforcement notices to the County Secretary and Solicitor and not to the senior assistant solicitor in his department who had actually issued them.
The Secretary of State ageed with that view. He felt that the Provident Mutual case had turned on the specific wording of the section of the Local Government Act (section 151) concerned with the administration of finance. He felt that that case had not established a general principle of law. In his decision letter he said:
The Provident Mutual case has been considered, but it is not accepted that it provides authority for the proposition that where by delegation under section 101 of the 1972 Act an authority empowers an officer to exercise its discretion to take enforcement action under section 87 (1) of the 1971 Act, his subordinate (to whom no delegation has been made) will also be competent to exercise that discretion.
The county council took the matter to court and were successful. Mr Justice Schiemann considered that the Provident Mutual case had in fact established a general point of law. He said:
The multitude of tasks which were entrusted by the standing orders to the County Secretary and Solicitor was such that it was inconceivable that the Council intended that all those functions should be attended to by one man.
The second planning case which reaffirms this view is Fitzpatrick v Secretary of State for the Environment (1987) (unreported but available on Lexis). There the Epping Forest District Council authorised their District Secretary to serve enforcement notices and stop notices in relation to the use of a smallholding for car boot sales and tipping. Mr Fitzpatrick, the owner, appealed unsuccessfully to the Secretary of State and then appealed to the court under section 246 of the 1971 Act. One of the grounds of appeal was that the enforcement notices had not in fact been prepared and issued by the District Secretary himself but by a committee clerk in the Secretary’s department. Mr Justice Roch rejected this argument. He cited with approval the Provident Mutual and the Cheshire cases and found that there was nothing unlawful in the committee clerk issuing the notices.
The story is not yet over, however. On January 14 1988 Mr Fitzpatrick asked the Court of Appeal to allow him to appeal against the High Court’s decision. This application was heard by Lord Justice Slade. The application was successful and he was given leave to appeal. Slade LJ set out the arguments that the enforcement notices were invalid because they were issued by a committee clerk and not the district secretary and he said:
I am not entirely satisfied that there may not be some substance in these points.
The appeal will be watched with interest.
An interesting feature of these cases is the failure of the courts to distinguish between decision taking by officers and implementation of committee decisions, the distinction explored in the first half of this paper.
If, in the last case, Epping Forest Council had simply resolved that enforcement notices be served on Mr Fitzpatrick without specifying who was to do it, it would be difficult to argue that an officer of the council implementing that decision had acted at all improperly. To hold otherwise would require all decisions of committees to be accompanied by a specific allocation to an officer. If it would have been proper for the committee clerk to issue the enforcement and stop notices if no one had been specifically allocated the job by the planning committee, on the basis that he was simply implementing the decision and someone had to do it, it is hard to see why it could be improper for him to issue them if the committee gave the task to his boss. Their decision to give it to the District Secretary was surely not meant to reduce the field of officers who could properly carry out their policy decision to one man.
Local authorities would be best advised only to delegate to an officer where that officer or one of his staff is expected to take a decision. Where he is simply expected to implement a committee decision there is no need for the committee to say who should do it. To sum up this point, the law seems reasonably clear that an officer of the local authority who is given delegated power to carry out a function may subdelegate to a subordinate. This does not mean that he has an unrestricted ability to do so or that developers should never ask the question “what authority does this particular officer have for telling me this or serving these notices on me?” Local authorities often have a written scheme of delegation setting out which grades of officer can exercise functions delegated to the chief officer. If action is taken by a member of staff who does not have the necessary authority the action would probably not bind the authority.
There may be cases where it is clear from the context of the delegation that the local authority had it in mind that the chief officer would handle the matter personally. It may be possible to infer this from the importance of the matter. Here again, action taken by a subordinate could well not be effective to bind the authority.
A district planning officer authorised to approve minor variations to plans could (and probably would) push this task down to senior staff in his department. He could not, however, authorise the district secretary or the solicitor to do it. Nor could he authorise his chief executive. (Unless he was anxious for early retirement he probably would not try!) It is clear that the courts in the recent cases have made their decisions in recognition of the realities of local government administration. When a committee instructs the chief officer to take action it realises that more often than not he will not do it personally. It would not expect him, however, to push the task out to a fellow chief officer.
Is a local authority bound by an officer’s comments, even if he was not authorised to make them?
If a local authority delegate a function to an officer, his actions bind the authority. It is an action of the authority.
But can a developer safely assume that anything an officer tells him is binding on the council; or should he take the precaution of checking whether the officer was authorised to say what he did? In legal jargon, if a local authority is bound by an officer’s decision, it is said to be “estopped” from trying to repudiate that decision.
There was a time when a developer did enjoy the comfort of being able to rely on the statements of local government officers. There were exceptions to this general rule, but essentially a developer could act on an officer’s representations secure in the knowledge that they bound his employers, the council. The leading case which supported this view was Lever (Finance) Ltd v Westminster City Council [1] 1 QB 222. There developers had obtained a planning permission. They later made a slight alteration to their plans. The local planning officer said that no further consent was needed. The developers went ahead and local residents objected. The planning authority then told the developers that planning permission for the variation was needed after all. Lord Denning reviewed previous cases which had established that public authorities cannot be estopped from performing their public duties, but said that these must be taken with reserve. He said:
There are many matters which public authorities can now delegate to officers. If an officer acting within the scope of his ostensible authority makes a representation on which another acts, then the public authority may be bound by it, just as much as a private concern would be.
Following that case Circular 142/73 was issued advising local authorities that their staff should give advice on a “without prejudice basis”.
The tide has, however, turned. It started in 1977 and the case of Brooks and Burton Ltd v Secretary of State for the Environment (1977) 35 P&CR 27. Lord Widgery CJ said:
There has been some advance in recent years of the doctrine of estoppel as applied to local authorities through their officers, and the most advanced case is … Lever Finance Ltd v Westminster City Council … I would deprecate any attempt to expand this doctrine because it seems to me … extremely important that local government officers should feel free to help applicants who come and ask them questions without all the time having the shadow of estoppel hanging over them and without the possibility of their immobilising their authorities by some careless remark.
This trend was continued by the case of Western Fish Products Ltd v Penwith District Council [1] 2 All ER 204. There a planning officer wrote a letter to a company accepting that the company had established user rights. When enforcement notices were later served the company claimed the council was estopped from refusing planning permission. This was rejected by the Court of Appeal.
More recently again, in the case of Newbury District Council v Secretary of State for the Environment [1] AC 578, [1980] 1 All ER 731 two of the Law Lords hearing that case expressed the view that the doctrine of estoppel should not be introduced into planning law.
The position now appears to be this. A developer cannot safely rely on what he is told by a planning officer. If he is told, for example, that he does not require planning permission for what he wants to do he cannot later claim that that statement binds the planning authority if it turns out that the officer was not, in fact, authorised to make it.
A developer should not therefore rely on an officer’s statements as necessarily binding. He should check whether the officer is empowered to make the statement. If the development is an expensive one it would be a sensible precaution to ask the officer to produce the evidence that he is properly authorised. It may be that some types of decision are so commonly delegated to officers that it is reasonable for a developer to assume that that has happened in his case. An example of this might be allowing officers to make immaterial modifications to the plans produced when planning permission was given. This was quoted as a common practice in the Lever Finance case. In cases like this it may be that the planning authority would be bound by an officer’s statement, even if they had not delegated the function to him. The Western Fish case supports the view that estoppel may apply where there is evidence that the officer did have the necessary power even if the evidence turns out to be wrong.
In short, however, developers who are given assurances by officers should always check whether the officer really does have the power to speak on behalf of the planning authority before acting on his advice. Not to do so could be very expensive.
What remedies are available for wrong advice?
If a developer has thrown away a lot of money on the strength of an officer’s assurance which it later turns out he had no power to give, what can the developer do?
As we have seen, the council will not normally be in any way bound by the advice that the officer gave.
In some jurisdictions this injustice is alleviated by the award of compensation. In France, for example, compensation has been paid where purchasers of land were told that there were no restrictions on building whereas the lands were reserved for, in the one case an airfield and, in another case, a university, and so permission to build was refused.
In some American states a flexible attitude prevails, so that while estoppel does not normally apply to a public body, it will be imposed by the courts if a serious injustice would be caused to the individual and where the public interest would not be unduly damaged by allowing the decision to stand.
In England and Wales there is no statutory scheme of compensation. A developer, however, is not entirely without protection.
In the first place, it may be that the Secretary of State or his inspector may be influenced in their handling of an appeal by evidence of negligence by the planning authority. Let us take the case of a developer who is told by the planning officer that he does not need planning permission for his proposed development. He proceeds with his plans. The planning authority later serve an enforcement notice, contending that permission had been necessary and the developoment was therefore unauthorised. The developer appeals against the enforcement notice. In deciding that appeal, and in particular whether planning permission should be granted for the development, the fact that the developer was misled by the planning officer will be a material consideration in the mind of the Secretary of State or his inspector. The weight to be given to that fact will vary from case to case. But in a case where a developer has been seriously misled and where he has spent a considerable sum in carrying out the development, it may be that a great deal of weight would be given to it. As Lord Scarman said in the case of Great Portland Estates plc v Westminster City Council [4] 3 All ER 744:
Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our development human factors.
If our imagined developer were to get his planning permission on appeal, he may even get his costs awarded against the planning authority.
The second way in which a developer who has been misled by an officer may be assisted is by bringing an action against the planning authority or against the officer personally for negligence. The law concerning what is known as “negligent misstatement” is currently being developed by the courts and it is the view of one distinguished author (H W R Wade, Administrative Law, 5th ed p 346) that wrong advice or assurances given by officials of planning authorities might make them liable to pay compensation.
The courts have on occasion seemed reluctant to extend the law of negligent misstatement to local authorities. This is shown by the most recent case — Harris v Wyre Forest District Council [8] 1 All ER 691; [1988] 2 EGLR 132. In that case a young couple had sought a mortgage from the local authority. The authority’s surveyor carried out a valuation and he confirmed the asking price. Three years later it was discovered that the property was affected by subsidence and was unsaleable. Even though the court found that the authority, through its surveyor, had been negligent, they were not liable for the loss. An earlier case (Yianni v Edwin Evans & Sons [1981] 3 All ER 592), where a couple borrowing money from the Halifax Building Society had been awarded compensation in similar circumstances, was distinguished on a number of grounds. One was the surprising one that in Yianni “the mortgagee was a building society and not a local authority”! (In fairness, however, it has to be acknowledged that that was not the determining factor in the Harris case where the local authority escaped liability because they had inserted a clause excluding liability into the valuation.)
Lastly, a developer who is an individual will be able to complain to the Local Government Ombudsman if the wrong advice amounted to maladministration. The Ombudsman may recommend in his report that the planning authority pay compensation to the developer. It will then be up to the authority to decide whether to accept the recommendation and pay up. Normally the Ombudsman will only investigate a complaint of maladministration once the appeal processes have been exhausted.
So, what about the question posed at the start of this paper: “But the planning officer told me it would be all right — famous last words or a legal defence?” Unfortunately for developers, as we have seen, these will often be famous last words. The message is clear — do not take on face value any assurances given by a local planning officer. Check that he has the proper authority from the planning authority to make them. If it turns out that he has not, an expensive mistake may have been avoided.