Variation to grant — Architect applying to council for “minor variations” — Planning officer agreeing in writing — Council objecting when works commenced — Inspector granting planning permission — Whether estoppel — Council’s application for leave to appeal inspector’s decision refused
The applicants, B, had applied for planning permission for a mansard roof extension to a terraced property at 28 Willow Road, Hampstead, London NW3. An inspector allowed an appeal against the local authority’s refusal of their application in May 1990. On September 2 1991, their architect wrote to the council seeking the officer’s approval for “minor variations” to the approved plan and set out the relevant points for his attention. Another letter was sent to a borough planning officer on October 4 to which a reply was received on October 11. It stated, inter alia, that: “In my view the variations … are minor and would not constitute development requiring planning permission”.
Once works commenced the council stated that it had become apparent that the works differed materially from the plans approved by the inspector and required planning permission. An enforcement notice was issued and an inspector was appointed who allowed the applicant’s appeal on the ground that while the authorities should not be immobilised from answering queries so as to produce an etoppel, in the instant case there was nothing in the correspondence that would have given “cause to believe other than the council had decided that the variations were minor and that a further planning permission was not required”. He stated the council’s letter was quite clear and unambiguous and the signatory of the letter conveyed ostensible authority for his decision. An application was made to the High Court for leave to appeal against the inspector’s decision. In Western Fish Products Ltd v Penwith District Council (1979) 38 P&CR 7, which dealt with established user, it was held that the principle of proprietary estoppel was inapplicable where the applicants took advantage of existing rights over their own land and that planning applications had to be decided by an elected body so that a letter from the planning officer, on the facts of that case, did not found an estoppel. Two exceptions were considered: viz where a local planning authority delegated powers to determine specific matters or where they waived procedural requirement so that they could be estopped from relying on lack of formality. In Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222, on the other hand, after referring to the general rule that planning authorities could not be estopped from doing their public duty, it was stated that there were many matters which planning authorities delegated to their officers who, acting within the scope of their ostensible authority, could be bound by a representation made.
Held The application was refused.
1. It was perfectly clear that the present case was a Lever Finance type of case and differed materially from the one that was before the court in Weston Fisb.
2. The council had made no representation in the written representations to the effect that only the Head of Planning had authority in the matters of planning and there had not been any argument to the effect that the officer, who had agreed to the minor variations, did not have ostensible authority to do so. Therefore, it was quite impossible to fault the inspector’s decision.
Helen Bryan (instructed by the solicitor to Camden London Borough Council) appeared for the planning authority: Alice Robinson (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment; Robert Fookes and Ruben Taylor (instructed by Nicholas Sharpe) appeared for the second respondent, B.
