Planning permission — Certificate of lawfulness — Estoppel — Planning permission granted for phased development of land — Claimant wishing to ascertain whether proposed operations lawful — Council refusing to grant certificate of lawfulness — Inspector dismissing appeal against refusal — Whether inspector erred in finding that council not estopped from denying lawfulness of development — Sections 191(2) and 192 of the Town and Country Planning Act 1990 — Claim allowed
In 1973 planning permission was granted for the construction of 31 dwellings on the claimant’s land (phase 1). The permission was renewed in 1978. In the same year, separate planning permission was granted for the construction of 37 dwellings and 38 garages on the land (phase 2). Phase 1 development was substantially completed by May 2001.
In February 2000, the claimant applied to the local planning authority, under section 192 of the Town and Country Planning Act 1990, for a certificate of lawfulness of proposed development on phase 2. The council refused to grant the certificate and the claimant appealed under section 195 of the Act. The inspector had to consider two issues, namely whether: (i) the development authorised by the permission granted for phase 2 in 1978 had been implemented; and (ii) the claimant had established, on the balance of probabilities, that the council were estopped from taking enforcement action in respect of the construction of a dwelling on the phase 2 land. The inspector found against the claimant on both issues and dismissed the appeal.
The claimant applied, under section 288 of the 1990 Act, to quash the inspector’s decision on the second issue. The question was whether the inspector had erred in finding that the council were not estopped from denying the lawfulness of the phase 2 development. Relying upon a letter dated 22 June 1994 from an officer of the planning authority confirming the existence of the extant planning permission, the claimant submitted that, on the inspector’s findings, all the elements of estoppel had been met. Further or alternatively, it was submitted that the inspector had erred in applying an additional test as to the reasonableness of the claimant’s reliance upon the representation. It was common ground that, in the present context, estoppel was available in principle by way of exception to the normal rule that a public authority could not be estopped in the exercise of their statutory duty: see Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204.
Held: The claim was allowed.
1. In order to found an estoppel by representation on the statement of a planning officer, it was necessary to establish not only that the officer was acting within the scope of his ostensible authority, but also that the person dealing with him was justified in thinking that what the officer said would bind the planning authority. The requirement of delegated authority was additional to the basic elements of estoppel by representation, and the inspector had found that this requirement had been met: the circumstances were such that the claimant could safely assume that the officer could bind the authority by what was said.
2. As regards the basic elements of estoppel, the inspector had accepted the existence of a sufficient representation that there was an extant planning permission, but took the view that it was not reasonable for the claimant to rely upon it. It was clear that the council were aware that the representation was likely to be acted upon, and that the claimant would believe the representation and act to its detriment in reliance upon it. There was no authority to support the proposition that, for an estoppel to arise, reliance upon a representation must be reasonable. It would be surprising if, when a representor made a false representation intending or knowing that it was likely to be acted upon, and the representee, believing the representation, acted upon it to his detriment, the representor could then defeat an estoppel on the basis that the representee’s reliance upon it was not reasonable. Accordingly, if a recipient of a representation relied upon it, and the other elements of estoppel were satisfied, the estoppel could not be defeated on the basis that the reliance was unreasonable.
3. Moreover, the availability of the statutory procedures for potential purchasers of land to determine the lawfulness of development by applying for a certificate under section 192 did not affect the position. The procedures were not capable of rendering the claimant’s reliance upon the council’s representation unreasonable in the circumstances of this case.
Robert Fookes (instructed by Foot Anstey Sargent, of Plymouth) appeared for the claimant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the first defendant; the second defendants did not appear and were not represented.
Eileen O’Grady, barrister
