Town and country planning — Appeal against decision to refuse development in the green belt — Secretary of State gives indication that planning permission forthcoming — Secretary of State then refuses appeal — Whether letter granted planning permission — Whether Secretary of State estopped — Whether conduct savours of breach of representation
Planning
permission was sought for a development consisting of a housing estate, public
open space and other facilities in the green belt. In 1984 Hillingdon London
Borough Council refused permission and the developers appealed to the Secretary
of State for the Environment. After a five-day planning inquiry, the Secretary
of State wrote a letter in January 1985 indicating, inter alia, that
provided an agreement was entered into, planning permission was likely to be
forthcoming. A second letter in July 1985 sought clarification about access and
the maintenance of the open space before a decision could be made, and the
developers, believing that permission was to be granted, incurred expense on an
access. Finally, in April 1986 the Secretary of State wrote dismissing the
appeal, citing the importance of the green belt. It was contended that the
first letter, giving the impression that permission might be forthcoming,
amounted to a grant of permission, or that it was a representation that
estopped the Secretary of State arriving at a different decision. Alternatively
the Secretary of State had taken into account new material not disclosed to the
appellants, or his decision was unreasonable as he had gone back on a
representation without giving the applicants a chance of being heard again.
1. The letter
of January 1985 was not in form a final decision and it did not grant planning
permission: R v Yeovil Borough Council, ex parte Elim Pentacostal
Church Trustees (1971) 70 LGR 142 and R v West Oxfordshire
District Council, ex parte C H Pearce Homes Ltd [1986] JPL 523. The
decision to refuse the appeal was not void on the ground that the Secretary of
State had taken into account new material, the material in issue was not new.
Nor was it void on the basis of pure estoppel: Western Fish Products Ltd v
Penwith District Council [1981] 2 All ER 204, see p 104C and 104H.
2. The primary
issue was whether the Secretary of State’s decision was unreasonable as he had
made a representation such as that it would be unfair to go back on it without
giving the applicants a chance of being heard again. The Secretary of State, by
his first letter, did misrepresent that all that was left before his final
decision was the completion of a legal agreement and related details. His July
letter reinforced this, despite saying ‘before reaching a decision’. Any
reasonable person reading the letter would conclude that green belt objections
to the development had been considered and the matter resolved in favour of the
development. There was therefore a representation and breach, and conduct that
savoured of a breach of representation. In the circumstances it was unfair and
unjust to the applicants for the Secretary of State to change his mind, see pp
106H-107D. Although the reasons for dismissing the appeal appeared
unsatisfactory, in the circumstances there was doubt whether that was ground by
itself for invalidating the decision, see p 107G. The decision of the Secretary
of State was quashed and the matter remitted to him.
to in the judgment
HTV Ltd v Price Commission [1976] ICR 170, CA.
In re
Preston [1985] AC 835; [1985] 2 WLR 836; [1985] 2
All ER 327; [1985] STC 282, HL.
R v Inland Revenue Commissioners, ex parte National Federation of
Self-Employed and Small Businesses Ltd [1982] AC 617; [1981] 2 WLR 722;
[1981] 2 All ER 93, HL.
R v West Oxfordshire District Council, ex parte C H Pearce Homes
Ltd [1986] JPL 523.
R v Yeovil Borough Council, ex parte Elim Pentacostal Church
Trustees (1971) 70 LGR 142; 23 P&CR 39.
Western
Fish Products Ltd v Penwith District Council [1981]
2 All ER 204; (1978) 77 LGR 185; 38 P&CR 7; [1978] JPL 623, CA.
Application
under section 245 of the Town and Country Planning Act 1971
This was an
application under section 245 of the Town and Country Planning Act 1971 to
challenge a decision of the Secretary of State for the Environment dismissing
an appeal against a decision of a local authority to refuse planning permission.
Barnes QC, Anthony Porten and Jonathan Karas (instructed by Saunders Sobell
Leigh & Dobin) appeared for the applicants.
Sullivan QC and David Mole (instructed by the Treasury Solicitor) appeared for
the Secretary of State.
following judgment of the court was delivered.
MACPHERSON
J: This is an application under section 245 of the
Town and Country Planning Act 1971 brought by Costain Homes Ltd and Milton
Hutchings Ltd against the Secretary of State for the Environment and Hillingdon
London borough council. Only the Secretary of State appears in answer to the
application. I am conscious of the provisions of section 245 and section 242.
Otherwise than by section 245, any decision of the Secretary of State on an
appeal under section 36 of the Act may not be questioned in legal proceedings.
And it is important to note always that what may be challenged by an aggrieved
party is the validity of the Secretary of State’s action ‘on the grounds that
the action is not within the powers of this Act, or that any of the relevant
requirements have not been complied with in relation to that action’, to the
prejudice of the applicants. The power of the court is one of review within the
confines of the Act and the well-known principles which govern such
applications.
The case
concerns some green belt land in Hillingdon. The site is admirably described in
the inspectors’ reports and in a coloured plan which has been used in this
case. The applicants’ objective is to develop the land in three different ways,
thus improving the present nursery and greenhouse business carried on there,
providing an open amenity space, and making profits from building a substantial
housing estate on the westward 7.5-acre part of the site.
It would be
tedious to set out all the steps which have led to this court. But a summary is
necessary:
(1) Hillingdon refused planning permission to the
applicants in 1984. The grounds of refusal were green belt orientated. They
appear on p 1 of the first inspector’s report.
(2) On August 20 1984, after a five-day inquiry,
Mr A W Machin reported to the Secretary of State. His conclusions appear at pp
30-31 of our bundle. And it is perfectly correct to say, as Mr Sullivan does,
that he, too, rejected the applicants’ case overall because there were material
planning objections on green belt grounds. Each side had argued its case in a
typically thorough manner and those arguments are recorded before me and set
out in full, as is traditional in inspectors’ reports.
(3) But of course the inspector’s report is, in a
case of this kind, just that — a report. The Secretary of State himself has the
task of deciding whether the appeal shall be allowed or dismissed. On January 2
1985, Mr D A Robinson, on the Secretary of State’s behalf, wrote the letter
which is at the heart of this case. It is necessary to read it in full. He
enclosed a copy of the inspector’s report and then continued at para 2:
Contrary to
the recommendation of the Inspector, the Secretary of State is minded to allow
the appeal. The area is at present dilapidated and likely to become more so as
the present use declines. The proposal would afford an opportunity to open up
part of the Green Belt not previously open to the public and enable a further link
to be provided in the open spaces along the River Pinn.
3. The
Inspector refers in his report to the proposed agreement between your clients
and Hillingdon Council to ensure the exchange of land and for the net proceeds
of any sale of land to be reinvested in the nursery site. The draft copy of the
agreement is noted, but before reaching a decision on the appeal the Secretary
of State would be grateful for confirmation of the completion of the legal
agreement.
4. Copies of
this letter have been sent to Hillingdon Borough Council, and to those persons
who appeared at the inquiry.
The evidence
of Costain’s solicitor is, not surprisingly, that the appellants believed and
were advised that the Secretary of State had thus ‘reached a conclusion
favourable to the appellants on the principle issue of Green Belt policy’. And
the appellants concluded that they were entitled to proceed on the basis that
planning permission would be forthcoming if the section 52 agreement were
completed.
Unfortunately,
Hillingdon simply would not agree to the relevant proposals submitted to them.
There followed the Secretary of State’s second letter dated July 17 1985.
Nothing whatsoever is said in that letter about the green belt issue. In para
4, the Secretary of State says:
Whilst the
application was in outline the illustrative plan contemplated access to be from
Pield Heath Road requiring exchange of land with the council as provided for in
the suggested agreement. The alternative means of access from Church Road was
mentioned at the inquiry but its possibility was not, it would appear, fully
canvassed. Since the Secretary of State needs to be fully informed before he
can reach a decision on this appeal he has decided to exercise his powers under
rule 12(3) of the Town and Country Planning (Inquiries Procedure) Rules 1974,
to re-open the inquiry. The matters about which the Secretary of State wishes
to be further informed are as follows: (a) alternative means of access to and
egress from the proposed housing development through a vacant plot of land
between 21 and 25 Church Road, Uxbridge, Middlesex; and (b) the provision,
laying out and maintenance of the public open space.
Again, not
surprisingly, the appellants saw confirmation for their earlier belief in that
letter which ‘identified with precision the only matters upon which he (the
Secretary of State) remained to be informed and satisfied’.
(4) Two consequences followed: (a) there was a
second strictly limited inquiry which explored only the two matters raised by
the Secretary of State and which resulted in a report favourable to the
appellants; (b) the appellants spent £ 339,000 in connection with the case,
including the large sum of £ 225,000 paid to ensure that access was available
to Church Road.
(5) On April 10 1986, Mr G C Wines (the new agent
of the Secretary of State) wrote to the appellants. He set out most of that to
which I have referred. And in para 16 of his letter he accepted (on behalf of
the Secretary of State) the first inspector’s conclusions and dismissed the appellants’
appeal. The Secretary of
expectations of a different decision’ and recognised the disappointment that
his decision would be likely to cause. But he indicated that his decision was
governed by the importance that he attached to the protection of green belt
land.
(6) In these circumstances, the appellants apply
under section 245. Their grounds were succinctly set out by Mr Porten on May 14
1986. These grounds were added to by amendment on March 29 1988. I do not
propose to read out those grounds in full, but it is necessary that they should
be carefully looked at, since it was suggested at one stage that a matter
argued before me was not properly before the court. It is important that the
case should be considered as pleaded.
The issues are
set out in those grounds and those issues faced the court yesterday and today.
There were some matters raised there and in argument which can, in my judgment,
be first resolved and disposed of.
(1) I accept Mr Sullivan’s argument that the
Secretary of State’s letter of January 2 1985 did not itself amount to a final
decision. This must, in my judgment, be so since matters remained to be
resolved and the appeal had not been decided at that date. This submission is
supported by the judgments in two cases, R v West Oxfordshire
District Council, ex parte Pearce Homes Ltd [1986] JPL 523 and R v Yeovil
Borough Council, ex parte Trustees of Elim Pentecostal Church, Yeovil
(1971) 23 P&CR 39.
In my judgment,
this also concludes against the applicants the point raised in para 7 of their
amended grounds. The ‘decision’ reached in the January letter could not of
itself, in my judgment, in law preclude a later different decision. As will be
seen, however, this is not, in my judgment, by any means the end of the
applicants’ case.
(2) It is, in my judgment, impossible for the
applicants to found their case upon the ground that the Secretary of State’s
ultimate decision was irrational or perverse. I do not detect any real
enthusiasm from Mr Barnes in this part of his argument.
(3) I do not accept the argument raised by ground
4(e) of the original grounds. That suggested that the Secretary of State took
into account further objections received after the second inquiry which were
not disclosed to the appellants and upon which their response was not invited.
The additional
material (see para 7 of the Secretary of State’s letter of April 10 1986)
consisted of letters supporting and opposing the proposals. But I must accept
that none of the letters raised new issues or evidence not covered at the two
inquiries. That is what the Secretary of State said was the position. In those
circumstances, there was nothing further for the applicants to comment upon and
it would not be right to suggest that because the old arguments were reinforced
both ways, the applicants should have been given for that reason another crack
of the whip.
The Secretary
of State’s letter does not, in my judgment, enable the applicants to say that failure
to allow them an opportunity to comment upon the additional letters renders the
Secretary of State’s decision void because of the breach of the rules of
natural justice which may require that a party shall be heard. If there had
been any truly new material or any fresh issue raised, the position would of
course have been different. But in April 1986 it is significant to note that
the Secretary of State referred to those new letters but in fact relied not
upon them but upon his first inspector’s conclusions and recommendations. So
that this ground is, in my judgment, of itself baseless.
(4) Next I accept, as does Mr Barnes, that no
estoppel can be raised against the Secretary of State. If authority is needed
for this proposition it can be found in
2 All ER 204.
(5) I turn, then, to the heart of the case, which
is based primarily on the letter of January 2 1985 and upon the applicants’
argument that there was unfairness and breach of the rules of natural justice
arising from breach of the representations implicit in that letter and from
breach of the legitimate expectations raised in the minds of the applicants.
These two
aspects of the case do, in my judgment, elide. Primarily, I look at the case as
one based upon representation. And I do so because the applicants’ argument is
largely based on the House of Lords decision of re Preston [1985] AC 835
(on appeal from R v Inland Revenue Commissioners, ex parte Preston).
Mr Barnes
argues that in the procedural circumstances of the present case, his clients
were unfairly treated and that it was unfair and unjust of the Secretary of
State to have indicated and represented that which he did on January 2 1985 and
yet to have gone back on it without at least giving Costain an opportunity to
know exactly why he had done so and without at least a fresh opportunity to be
heard being given to them.
Mr Sullivan
says that there was no representation and he argues that the Secretary of State
could change his mind, as he did, without any reference to the applicants. And
he argues that the applicants are in truth simply disappointed by the result of
the Secretary of State’s ultimate decision and that they have no recourse.
There are two
important passages in Preston to which I shall refer. The first is part
of a speech of Lord Templeman. After pointing out earlier (p 864) that in most
cases in which the court has granted judicial review on the grounds of
unfairness amounting to abuse of power there has been some proven element of
improper motive, Lord Templeman went on to consider HTV Ltd v Price
Commission [1976] ICR 170 and then at p 866 he said:
In the
present case, the appellant does not allege that the commissioners invoked
section 460 for improper purposes or motives or that the commissioners
misconstrued their powers and duties. However, the HTV case and the authorities
there cited suggested that the commissioners are guilty of ‘unfairness’
amounting to an abuse of power if by taking action under section 460 their
conduct would, in the case of an authority other than Crown authority, entitle
the appellant to an injunction or to damages based on breach of contract or
estoppel by representation. In principle I see no reason why the appellant
should not be entitled to judicial review of a decision taken by the
commissioners if that decision is unfair to the appellant because the conduct
of the commissioners is equivalent to a breach of contract or a breach of
representation. Such a decision falls within the ambit of an abuse of power for
which in the present case judicial review is the sole remedy and an appropriate
remedy. There may be cases in which conduct which savours of breach of conduct
or breach of representation does not constitute an abuse of power; there may be
circumstances in which the court in its discretion might not grant relief by
judicial review notwithstanding conduct which savours of breach of contract or
breach of representation. In the present case, however, I consider that the
appellant is entitled to relief by way of judicial review for ‘unfairness’
amounting to abuse of power if the commissioners had been guilty of conduct
equivalent to a breach of contract or breach of representations on their part.
The taxpayer
in Preston failed to discharge the burden placed upon him. But the
principle is, in my judgment, usefully set out. The second passage is from Lord
Scarman’s speech starting at p 851H:
My third
proposition is that unfairness in the purported exercise of a power can be such
that it is an abuse or excess of power. This was the view of the law
which I expressed in the National Federation of Self-Employed case . . .
and it remains my view. I do not consider it to be inconsistent with the words
of Lord Diplock in that case which my noble and learned friend Lord Templeman
quotes in his speech, namely that: ‘judicial review is available only as a
remedy for conduct of a public officer or authority which is ultra vires
or unlawful, but not for acts done lawfully in the exercise of an
administrative discretion which are complained of only as being unfair and
unwise . . .’.
I do not
understand my Lord to have been saying that the unfairness of what has been
done can in no circumstances become relevant in determining whether what was
done was ultra vires or unlawful.
At p 852F, he
said:
I accept that
the court cannot in the absence of special circumstances decide by way of
judicial review to be unfair that which the commissioners by taking action
against the taxpayer have determined to be fair. But circumstances can arise
when it would be unjust, because it would be unfair to the taxpayer, even to
initiate action under Part XVII of the Act of 1970. For instance, as my noble
and learned friend points out, judicial review should in principle be available
where the conduct of the commissioners in initiating such action would have
been equivalent, had they not been a public authority, to a breach of contract
or a breach of a representation giving rise to an estoppel. Such a decision
could be an abuse of power: whether it was or not and whether in the
circumstances the court would in its discretion intervene would, of course, be
questions for the court to decide.
What, then, is
the position here? In my judgment, the Secretary
of State plainly represented to the applicants on January 2 1985 that all that
was left for ‘confirmation’ was the completion of the legal agreement. And on
July 17, when the agreement was not forthcoming, he reinforced the
representation that his mind was at that time otherwise made up by saying, in
terms, that by the fresh inquiry he wished to be further informed only about
alternative means of access and the provision, laying out and maintenance of
the open space.
It is
perfectly true that the Secretary of State used the phrase ‘but before reaching
a decision on the appeal . . .’ so that he indicated that the full decision had
not been made. That was correct, but only because the signing of the legal
agreement was a necessary step towards the decision. In my judgment, any
reasonable person reading that letter would conclude, as the applicants did,
that there was no more to be said about the green belt issue and that that had
been decided in the Secretary of State’s mind in favour of the applicants.
There is, of
course, no information available as to what the applicants might have done if
the letter had not been written or if para 2 had never been put in it. Mr
Sullivan suggests that they would simply have gone ahead in the way that they
did in any event. But who can tell? The
fact is that the letter was written. The statement as to the Secretary of
State’s conclusion at that time as to the green belt part of the case is
emphatic. He regarded the proposal as affording ‘an opportunity to open up part
of the green belt not previously open to the public and enable a further link
to be provided in the open spaces along the River Pinn.’ And of course he also stated a positive
reason, the dilapidation of the area and the likelihood of yet further deterioration
as good grounds for allowing the appeal.
The question
is whether or not there was here a representation and a breach of it or, as Mr
Barnes argues, whether there has been conduct which savours of breach of
representation. In my judgment, there has clearly been both since the Secretary
of State said what he did, yet within a year, through his new advisers, he
reached a decision 180° . away from that indicated in January 1985.
Certainly his conduct savoured of breach of representation, and in my judgment
it went further than that. Anybody reading the January letter would conclude,
in my judgment, that the green belt issue was resolved and that all that
remained were the agreement or later the two issues referred to the second
inspector.
I am bound to
say that in my judgment it was unfair and unjust of the Secretary of State so
radically to change his mind, without even giving the applicants an indication
that he might do so and an opportunity to be heard or to make representations
on the point. Such unfairness did, in my judgment, amount to an abuse of power,
since the Secretary of State was guilty of conduct equivalent to a breach of
his representations made in January 1985 (see Lord Templeman in Preston,
p 867).
In my
judgment, this case does more than illustrate a situation where the applicants
could be justifiably disappointed but have no remedy. I feel bound to say that
I sense injustice in the case and justifiable complaint by the applicants at
the way in which the decision of April 1986 was reached.
Mr Sullivan is
of course right when he says that the court looks not at the decision itself
but at the way in which it is reached. In my judgment, it is the method of
reaching this decision which is under attack. If the Secretary of State had
allowed the applicants an opportunity to be heard, it may well be that they
could have persuaded him back to the decision which he was apparently quick to
alter in 1986 without any new or relevant additional material.
However I look
at the case, I feel that the applicants have a justifiable grievance as to the
method in which this decision was reached and as to the course taken by the
Secretary of State. And I am convinced that the decision should be quashed.
What steps the
Secretary of State takes will of course be for him, since it is of course never
for the court to consider the merits of the decision itself. I simply hope that
full opportunity will be given to the applicants, who plainly had in 1985 good
prospects of success in this matter, to argue again that their appeal should be
allowed.
Finally, I add
that I do also see force in the applicants’ contention that the reasons given
for dismissal of their appeal are unsatisfactory. It is perfectly true that the
official who wrote the 1986 letter set out the matters raised by the first
inspector and so on. But he did not ever tell the applicants why the Secretary
of State was, in 1986, going wholly back on the reasons expressed for allowing
the appeal set out in para 2 of the January 1985 letter.
He says (p 60)
that the reopening of the inquiry may have led to expectations of a different
decision. But that does not explain the Secretary of State’s abandonment of the
actual reasons given for allowing the appeal which were so persuasive in 1985.
I doubt
whether the absence of reasons would itself have been a reason for quashing
this final decision. But in my judgment their absence fortifies the applicants’
case that the matter has gone wrong in the process of the decision-making.
Primarily for
the combined grounds which deal with representation and legitimate expectation,
which are in this particular case aspects of the same complaint, I am convinced
that this decision should be reviewed and quashed upon the grounds set out in
para 4 of the notice of application, buttressed by those set out in para 3, and
in paras 5 and 6 of the amended grounds.
In exercise of
my discretion, I so order.
Application
succeeded and the decision of the Secretary of State quashed with costs.
