The court avoids having to reach a conclusion as to whether a substantive legitimate expectation had been raised.
Legitimate expectation is a principle of public law that is capable of applying in the context of town and country planning. For a claim based upon legitimate expectation to be successfully advanced, a public authority must have represented (either by way of an express promise or implicitly by way of past practice) that it will conduct itself in a particular way. It may then be argued that the representation gives rise to a legitimate expectation on the part of the person to whom it was made that the public authority will so act. Should the argument succeed, the public authority may have to give effect to that expectation.
Legitimate expectations are categorised as procedural or substantive. In the case of the former, it may be the opportunity to be consulted or to make representations. In the case of the latter, it may be the provision of a concrete benefit. Examples of procedural legitimate expectation being upheld in this context do occur. There appears to be less scope for substantive legitimate expectation.
In R (on the application of Creed-Miles) v Southwark London Borough Council [2013] EWHC 853 (Admin); [2013] PLSCS 75 the claimant sought to challenge a decision by the local planning authority (“LPA”) for the development of riverside moorings on the basis that the LPA had misinterpreted an earlier planning permission and had effectively granted planning permission for a development within an exclusion zone (intended to protect the amenity of adjoining properties) referred to in the earlier permission. In particular, he relied upon a letter written subsequent to the grant of that earlier permission by the LPA that he claimed approved a drawing he had prepared setting out the extent of the zone.
The court took a very purposeful approach to resolving the issue between the parties by making a number of findings and allowing them to try to reach agreement on the terms of an appropriate order for its approval. This also avoided the need for the court to reach any conclusion on whether the LPA’s letter gave rise to a substantive legitimate expectation. The judge did, however, make the following point: a public authority is bound to act in the public interest and it is only if a failure to keep a promise is so unfair as to amount to an abuse of power that it might override other considerations.
John Martin
