John Martin issues a reminder about how the principle of legitimate expectation applies in planning law
As is widely known, 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 on 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.
Substantive legitimate expectation
In Godfrey, the appellant sought permission to proceed with a claim for judicial review of the decision of the local planning authority (“LPA”) in 2010 to grant planning permission for a mixed-use development, including a community centre of 124 sq m situated within a larger health centre building.
There had been a standalone community hall with 413 sq m of floor space on the application site originally. When the site had been earmarked for redevelopment, the LPA prepared a project brief that referred to a new community hall on the 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 a standalone 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 LPA to an issue, even if amounting to planning policy, could not have primacy over its statutory duty to assess the current situation. It is therefore more appropriate to look at some cases on procedural legitimate expectation.
Procedural legitimate expectation
In R (on the application of Majed) v London Borough of Camden [2009] EWCA Civ 1029, the appellant had applied to quash a planning permission granted for an extension to a neighbouring property.
One of his grounds of challenge was based on legitimate expectation. The LPA had adopted a Statement of Community Involvement (“SCI”) under section 18 of the Planning and Compulsory Purchase Act 2004, setting out how it intended to involve local communities in the consideration of planning applications. As the result of an administrative error, the appellant had not been notified of the planning application, as the statement required.
The Court of Appeal described the SCI as a “paradigm example” of both a promise and a practice, and held that there had been a breach of legitimate expectation. However, the appeal judges restricted the relief granted to a declaration, and exercised its discretion not to quash the planning permission given that there had been limited prejudice to the appellant.
In Trillium (Prime) Property GP Ltd v Tower Hamlets London Borough Council [2011] EWHC 146 (Admin); [2011] PLSCS 41, the claimant contended that the LPA had breached its legitimate expectation of being consulted on the proposed designation of a conservation area that affected its building and proposed development. There is, of course, no statutory duty on an LPA to consult prior to designating a conservation area under section 69 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
The LPA had refused planning permission for the demolition of the claimant’s building and the construction of a replacement providing residential units and office space. The claimant then gave six weeks’ notice under the Building Act 1984 of its intention to demolish the building, and the LPA – without prior consultation – designated an area including the building very shortly afterwards. One obvious consequence was that the building could not then be demolished without conservation area consent.
The court concluded that the claimant did have a legitimate expectation that it would be consulted properly about a designation decision affecting its property and development. Consultation is advised by English Heritage, and it was also part of the LPA’s normal policy. It had also been employed on an earlier occasion when the LPA had carried out a review of its conservation areas.
However, the court held that the LPA had been entitled to conclude that consultation with the claimant, or others, would have put the proposed designation at risk of harm. In those circumstances, the expectation of consultation had not been breached. The LPA had reasonable grounds for believing that pre-emptive demolition was a risk of such degree as to warrant its route to designation.
The claimants in R (on the application of Vieira) v Camden London Borough Council [2012] EWHC 287 (Admin); [2012] PLSCS 42, fared better. They sought judicial review of the grant by the LPA of retrospective planning permission for a conservatory at the rear of an adjoining property. The LPA had earlier adopted a SCI in which it set out how it intended to involve local communities in the consideration of planning applications.
The claimants had initially been consulted by the LPA, and had objected on grounds of loss of privacy. Thereafter, however, the adjoining owner submitted revised proposals that the claimants were never shown, nor given an opportunity to comment on. Those proposals were not put on the LPA’s website, nor was an officer’s report. Finally, the LPA’s officers granted planning permission.
The claimants contended that they had a legitimate expectation that they would be consulted on the revised proposals, as indicated in the SCI, and that the proposals and an officer’s report would appear on the LPA’s website.
The court allowed the claim, and quashed the grant of planning permission, holding that the LPA had breached the claimants’ legitimate expectation to be notified and consulted on the revision to the planning application. In particular, the SCI required re-consultation following the submission of a revision to the planning application.
It can be seen, therefore, that while a LPA is rarely likely to face a successful claim based on substantive legitimate expectation, there are a number of circumstances in which it may unwittingly expose itself to one based on procedural expectation.
Not always the case
By way of a footnote, in R (on the application of the Police and Crime Commissioner for Leicestershire) v Blaby District Council [2014] EWHC 1719 (Admin); [2014] PLSCS 162, the claimant applied to quash the grant of planning permission by the LPA for a mixed-use development, including 4,250 dwellings, that the judge accepted might well be described as a “new town”.
A section 106 agreement, to which the claimant was not a party, had been entered into one purpose of which was to ensure adequate and timely contributions towards the increased cost of policing so as to mitigate properly the adverse impact of the development in that respect. In terms of mechanics, the relevant payments – once triggered – would be made to the LPA on behalf of the claimant’s police force.
The claimant’s main contention was that the LPA had erred in its negotiations with the interested parties in failing to include appropriate provisions in the section 106 agreement as to the level and timing of the payments. But he also argued that he had a legitimate expectation that the LPA would consult him in that respect, and that the outcome of such consultation would be represented in the section 106 agreement.
The court rejected this argument. While accepting that the course of dealing between the claimant and the LPA in the kind of context with which the present case was concerned could in some circumstances give rise to a legitimate expectation that a particular process would be followed by the LPA, this was not so here. The pattern of negotiation was, in effect, between the claimant and the interested parties with the LPA as the intermediary.
John Martin is a planning law consultant
