Health authority collaborating with company in construction of incinerator to serve hospital and other waste producers – No application as such for planning permission – Council and health authority adopting non-statutory consultation procedure – Council issuing enforcement notice on ground that development not undertaken “by or on behalf of Crown” – Whether such development limited to work undertaken by Crown servant or agent – Whether council in any event estopped from insisting that planning permission required
On 19 April 1990 the Secretary of State for Health (the health minister) and Hillingdon Health Authority entered into two agreements with the third respondent, a company associated with Blue Circle Group (the company), for the provision and subsequent operation by the company of a new incinerator, to be constructed by an approved subcontractor on the site of Hillingdon Hospital. The agreements provided, inter alia, that: (i) the company would, as from the commissioning date of the new incinerator, take a 20-year lease of the site at a rent calculated in accordance with a profit-sharing arrangement; (ii) subject to certain controls by the health minister, the company would be responsible for operating the incinerator; (iii) prescribed quantities of waste from the hospital would be incinerated free of charge; and (iii) excess capacity would be used to burn other waste at a profit to be shared. In July 1990 the health authority, proceeding on the basis that because of its Crown status a planning application as such was not required, sent to the appellant council a notice complying with the voluntary (non-statutory) consultation procedure laid down for Crown developments by Circular 18/84. The notice gave particulars of the development and invited representations. In November 1990 the council, referring to the circular, communicated their approval to the health authority, stating that “had this been an application for planning permission… this Authority would have granted approval…”. In April 1991 the National Health Service and Community Care Act 1990 (the NHSCCA) was brought into force with the following consequences: (i) subject to certain transitional provisions contained in Schedule 8 (the Schedule 8 exception), health service bodies in general ceased to enjoy Crown status; and (ii) the rights of the health minister and the health authority in the site and in the 1990 agreements became vested in the second respondent, Hillingdon Hospital NHS Trust (the hospital). In July 1991 the council, again referring to Circular 18/84 , notified the company of their approval of certain detailed design features. In or about November 1991 the incinerator was put into action.
Following complaints from nearby residents of noise and smells, the council began to doubt whether the development should have been approved under the non-statutory procedure. In January 1995 the council issued an enforcement notice requiring demolition of the incinerator on the ground that it had been constructed without planning permission. The hospital and the company appealed successfully to the Secretary of State, who quashed the enforcement notice, having taken the view that Crown immunity had been enjoyed at all material times. The council appealed.
Held: The appeal was dismissed.
1. The council could not point to any part of the Town and Country Planning Act 1990 that displaced the general rule that a statute did not bind the Crown unless the contrary was expressed or necessarily to be implied: see for example Minister of Agriculture, Fisheries and Food v Jenkins [1963] 2 QB 317; Lord Advocate v Dumbarton District Council [1990] 2 AC 580. In particular, the council could not point to section 294 of the 1990 Act, as the “special enforcement notice” there permitted was limited to cases where Crown land had been developed otherwise than “by or on behalf of the Crown”, an expression that also governed the Schedule 8 exception to the NHSCCA.
2. Under the terms of para 16 of that Schedule, the council, having been notified before the operative date of a development on Crown land, had to continue to treat the development as being by or on behalf of the Crown, if that was indeed the case. The court, strongly persuaded by The King v Portus, ex parte Federated Clerks’ Union of Australia (1949) 79 CLR 428, rejected the council’s contention that such a development had to be carried out by a servant or agent of the Crown. The fact that the work was to be carried out by an independent contractor was immaterial where, as in the present case, the contract and the surrounding circumstances demonstrated that a significant degree of control would be retained by the Crown and that purposes of significant benefit to the Crown were to be achieved by the particular method adopted for developing Crown land.
3. The court also accepted the hospital’s alternative contention that the council were, in any event, estopped from asserting that the Circular 18/84 procedure should not have been adopted. The council relied on the principle that a government department could not, as a result of a misrepresentation by one its officers, assume powers that it did not have: see generally Southend-on-Sea Corporationv Hodgson [1962] 1 QB 416 and Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204. However, the hospital’s case was founded, not on such a misrepresentation, but rather on an estoppel by convention arising from the fact that all concerned had proceeded throughout on the agreed and/or assumed basis that they were following the correct procedure. Given that the Circular 18/84 procedure provided a precise parallel with the statutory procedure, with similar safeguards for third parties, there was no principle of law that prevented an operative estoppel by convention from arising.
John Taylor QC and Robert Fookes (instructed by the solicitor to Hillingdon Borough Council) appeared for the appellants; David Elvin (instructed by the Treasury Solicitor) appeared for the first and second respondents; David Holgate QC (instructed by Nicholson Graham & Jones) appeared for the remaining respondents.
Alan Cooklin, barrister
