A recent decision will leave developers wary of relying solely on planning officers and planning committees. By Martin Edwards and John Martin
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” The doctrine of legitimate expectation has replaced the concept of estoppel ” It is unclear whether, in planning law, legitimate expectation will be more difficult to establish than estoppel |
Over the years, we have followed the course of the concept of legitimate expectation in planning (see 17 June 2000, p165). This month, we report on the House of Lords decision in R (on the application of East Sussex County Council) v Reprotech (Pebsham) Ltd [2] UKHL 8; [2002] 10 EG 158 (CS), which represents the final coming of age of the concept, and simultaneously brings to an end the notion of estoppel in planning law.
Generating debate
In 1989, the council built a waste-treatment plant near to a landfill site. Ownership was vested in a company wholly owned by the council. In 1990, the council decided to sell the plant and duly advertised for tenders. One potential purchaser suggested that the waste should also be used to generate electricity. A leading planning barrister was consulted, who advised that no change of use would arise because the primary use of the site was the treatment of waste, and electricity generation was just another way of using the treated waste.
The county planning officer concurred, but neither the council’s company nor any of the interested purchasers made a formal application for determination under section 64 of the 1990 Act (replaced by sections 191 and 192.) This procedure was similar to a planning application. It had to be entered on the register, was open to public inspection, and the county planning authority were obliged to give the district planning authority at least 14 days to make recommendations about the determination of the application.
Rather than make such an application, the solicitor for the interested purchaser focused on one of the conditions attached to the planning permission for the plant. This prohibited the use of power-driven machinery between 10pm and 6am Monday to Saturday, and prevented the working of the plant on Sundays and Bank Holidays. The generation of electricity is not practical, for commercial distribution, except on a 24-hour-a-day, seven-days-a-week basis. The council’s company agreed to apply, under section 73, for an amendment to the condition, to permit the continuous use of a turbine or other equipment necessary for electricity generation.
The application went to committee for determination, together with the county planning officer’s report, which stated that no material change of use was involved and which recommended grant of permission. The committee resolved that this would be granted subject to the prior approval of a satisfactory noise-attenuation scheme. However, the council’s company did not take matters any further, and the planning permission was never formally granted.
Reprotech emerged as the successful bidder and was aware of the committee’s resolution. As it had no immediate intention to generate electricity, the council’s company withdrew the section 73 application. Reprotech and the council entered into sporadic correspondence over the site’s planning status, culminating in Reprotech’s application for permission to generate electricity. Local opposition indicated that approval would not be a straightforward matter, and Reprotech stood on what it perceived to be its rights.
Legitimate expectation
Reprotech argued, inter alia, that the county planning officer’s views or the committee’s resolution counted as a section 64 determination that planning permission was not required for electricity generation. Lord Hoffmann rejected that argument. He could not see how a conditional resolution to grant planning permission, which does not bind the authority, can impliedly constitute a binding section 64 determination.
Reprotech further argued that the council were estopped, by representation or convention, from denying that electricity could be generated without further planning permission. This relied heavily upon estoppel as expounded in the criticised decision in Wells v Minister of Housing and Local Government [7] 1 WLR 1000. Lord Hoffmann also rejected this argument.
Importantly, he said that it was unhelpful to introduce the private law concept of estoppel into planning law. Estoppel binds individuals on the ground that it would be unconscionable for them to deny what they have represented or agreed, whereas the public law of planning control binds all. He drew an analogy between a private law estoppel and the public law concept of legitimate expectation, the denial of which may amount to an abuse of power. But remedies against a public authority have to take account of the public interest, which authorities exist to promote. When Wells was decided, public law concepts of abuse of power and legitimate expectation were undeveloped and the analogy of estoppel seemed useful. But according to Lord Hoffmann: “In this area, public law has… absorbed whatever is useful from the moral values which underlie the private law concept of estoppel” and public law in this area should “stand upon its own two feet”.
Safe course of action
It remains to be seen whether, in planning law, it will be easier or more difficult to establish a legitimate expectation than it was to establish estoppel. Reprotech will make developers more wary of placing reliance solely upon the statements of planning officers or the resolutions of planning committees. The only safe course of action will be to make formal application for a determination or for planning permission.
Martin Edwards is a specialist planning barrister in 39 Essex Street Chambers and John Martin is a solicitor and director of property law research at Pinsent Curtis Biddle
