Although the House of Lords has clearly indicated that the concept of estoppel in public law is obsolete, a recent ombudsman decision in Scotland (Case 021059) has penalised a local planning authority for providing incorrect information, which led to enforcement action being taken against an unauthorised development.
The complainants had written to the council asking whether planning permission would be required for the erection of a conservatory on their property. The council indicated that no permission was required, and the complainants undertook the work once they had obtained building regulation approval to do so. On discovering such a condition on the original planning permission for the erection of the house that removed permitted development rights, the council served enforcement notices, which were upheld on appeal.
The complainants duly removed the conservatory, but complained to the ombudsman stating that they had incurred unnecessary expense as a consequence of the council’s actions. The ombudsman agreed; the complainants had erected the conservatory in good faith.
The council were required to meet all costs associated with constructing the conservatory and its subsequent demolition, together with all legal and planning fees.
This case serves as a reminder to local planning authorities that although, in law, any advice they may give to members of the public would not preclude their taking subsequent enforcement action, should the advice prove to be incorrect, the ombudsman will make appropriate awards against local planning authorities should this occur.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
Although the House of Lords has clearly indicated that the concept of estoppel in public law is obsolete, a recent ombudsman decision in Scotland (Case 021059) has penalised a local planning authority for providing incorrect information, which led to enforcement action being taken against an unauthorised development.
The complainants had written to the council asking whether planning permission would be required for the erection of a conservatory on their property. The council indicated that no permission was required, and the complainants undertook the work once they had obtained building regulation approval to do so. On discovering such a condition on the original planning permission for the erection of the house that removed permitted development rights, the council served enforcement notices, which were upheld on appeal.
The complainants duly removed the conservatory, but complained to the ombudsman stating that they had incurred unnecessary expense as a consequence of the council’s actions. The ombudsman agreed; the complainants had erected the conservatory in good faith.
The council were required to meet all costs associated with constructing the conservatory and its subsequent demolition, together with all legal and planning fees.
This case serves as a reminder to local planning authorities that although, in law, any advice they may give to members of the public would not preclude their taking subsequent enforcement action, should the advice prove to be incorrect, the ombudsman will make appropriate awards against local planning authorities should this occur.
Gill Castorina is an associate at Paul, Hastings, Janofsky & Walker (Europe) LLP
