Applicant operating waste-processing plant — Application under section 73 of Town and Country Planning Act 1990 for fresh permission enabling electricity generation — Council committee resolving accordingly but not making consequent grant — Council later insisting upon fresh application for permission for such use — Applicant’s successor claiming resolution operating as determination of lawful use — Successor succeeding before Court of Appeal — Council’s appeal allowed
The respondent (Reprotech) operated a waste-processing plant on a site that it had bought from ESEL, a company set up by the appellant council to fulfill their functions of waste disposal. The council were the local planning authority, and also the waste-disposal authority under the Environmental Protection Act 1990.
The council had granted permission (the existing permission) to ESEL for the development of the site as a waste-treatment plant and household-waste site, subject to certain conditions. Condition 10 restricted the hours during which it was permissible to operate power-driven machinery. Before selling the site to the respondent, ESEL took advice to the effect that the use of the site for electricity generation would not involve a material change of use. Since the new use required a 24-hour operation, ESEL applied to the council, under section 73 of the Town and Country Planning Act 1990, for a regrant of the existing permission with a suitable amendment to condition 10. In February 1991, the council’s subcommittee resolved to allow the application, the reference to power-driven machinery being qualified by the words “other than a turbine and such other equipment necessary for the generation of electricity”. No further steps were taken.
Some years after its acquisition, Reprotech informed the council of its intention to implement the existing permission for electricity generation at the site. The council, however, took the view that no such generation could take place without the grant of a fresh permission for such use. Reprotech applied, inter alia, for a declaration that the resolution of February 1991 should take effect as a determination under section 64* of the 1990 Act to the effect that no further planning application was required. That contention was accepted by the High Court and by a majority in the Court of Appeal. The council appealed to the House of Lords.
Held: The appeal was allowed.
Regardless of its true construction, the resolution could not count as a determination under section 64. That such a determination was not simply a matter between the applicant and the planning authority was clear from the various formal requirements, as well as the opportunity that had to be given to the Secretary of State to call in the application for his own determination: Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 distinguished; Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 considered. It was impossible to see how a conditional resolution to grant permission that did not bind the planning authority could impliedly constitute a binding determination under section 64.
Nor could that resolution amount to a representation for the purpose of establishing an estoppel, a private law concept that should not, in any event, be extended into planning law: see per Lord Scarman in Newbury District Council v Secretary of State for the Environment [1981] AC 578 at p616, and per Dyson J in R v Leicester City Council, ex parte Powergen UK Ltd [1999] 4 PLR 91. The closest analogy to be found in public law was the possible abuse of power arising out of the denial of a legitimate expectation created by a public authority: see R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213.
* Editor’s note: Now replaced by sections 191 and 192 of the 1990 Act.
Timothy Straker QC and Karen Steyn (instructed by the solicitor to East Sussex County Council) appeared for the appellants; Anthony Porten QC and Jonathan Clay (instructed by Donne Mileham & Haddock, of Brighton) appeared for the respondent.
Alan Cooklin, barrister
