Legitimate expectation is a principle of public law that is capable of applying in the context of town and country planning. For a claim based upon legitimate expectation to be successfully advanced, a public authority must have represented (either by way of an express promise or implicitly by way of past practice) that it will conduct itself in a particular way. It may then be argued that the representation gives rise to a legitimate expectation on the part of the person to whom it was made that the public authority will so act. Should the argument succeed, the public authority may have to give effect to that expectation.
Legitimate expectations are categorised as procedural or substantive. In the case of the former, it may be the opportunity to be consulted or to make representations. In the case of the latter, it may be the provision of a concrete benefit. Examples of procedural legitimate expectation being upheld in this context do occur. That there is limited scope for substantive legitimate expectation is illustrated by the decision in R (on the application of Godfrey) v Southwark London Borough Council [2012] EWCA Civ 500; [2012] PLSCS 91.
There, the appellant sought permission to proceed with a claim for judicial review of the respondent’s decision in 2010 to grant planning permission for a mixed-use development including a community centre of 124m2 situated within a larger health centre building. There had been a stand-alone community hall with 413m2 of floor space on the application site originally. When the site had been earmarked for redevelopment, the respondent prepared a project brief that referred to a new community hall on site. This was reflected in policies set out in a UDP adopted in 2007. The appellant contended that these events, coupled with an understanding that had been given to the community that there would be stand-alone community centre, raised a substantive legitimate expectation.
The court refused permission, holding that a rigorous standard was to be applied when a substantive legitimate expectation was claimed on the basis of a representation or promise by a public authority, bearing in mind the duty of public authorities to exercise powers in the public interest. An earlier approach of a local planning authority to an issue, even if amounting to planning policy, could not have primacy over its statutory duty to assess the current situation.
John Martin is a freelance writer
