Local planning authority — Consultations with prospective applicants for planning permission — Charge for consultations — Decision not to revoke charge — Whether charge ultra vires — Meaning of section 111 of the Local Government Act 1972
In July 1985
the respondent local planning authority resolved to impose charges where
certain members of the public sought consultations with their officers.
Representatives of the appellant company met with officers for consultations
prior to the submission of an application for planning permission. The
respondents charged £ 25 for each consultation session. Following the decision
of the respondents not to revoke their decision to charge, the appellants
applied by way of judicial review challenging that decision on the grounds
that: (1) the consultation charges were not authorised by section 111 of the
Local Government Act 1972 because there were no clear powers to levy a charge
from the public; and (2) the decision to impose charges was Wednesbury
unreasonable. The appellants appealed against the decision of Popplewell J
([1989] 2 PLR 22), who dismissed their applications.
If the doing
of anything is to be authorised by section 111(1), the thing must be
‘calculated to facilitate’ or ‘conducive or incidental to’ the discharge of one
or more of the respondent council’s functions. The present case has to be
distinguished from the many cases where the local authority are under a duty to
offer a service and the public have a correlative right to require the service
to be provided. If Parliament has imposed a duty on a local authority, but has
not seen fit to authorise them to impose charges on members of the public as a
price for the performance of the duty, it is not open to the authority to
invoke the principle in Attorney-General v Great Eastern Railway Co
(1880) 5 App Cas 473 (‘whatever may fairly be regarded as incidential to, or
consequential upon, those things which the Legislature has authorised ought not
(unless expressly prohibited) to be held, by judicial construction, to be ultra
vires‘), or to rely on section 111(1) of the 1972 Act, by claiming that the
imposition of charges is calculated to facilitate or is conducive or
incidential to the discharge of such duties: see p 115B et seq.
The
legislature has specifically conferred on local planning authorities neither a
duty nor a power to give pre-planning advice. The power to give advice is a
subsidiary power, enjoyed by virtue of section 111(1) of the 1972 Act. They are
entitled to offer that advice and to require a payment for it: see pp 116G-117.
to in the judgment
Ashbury
Railway Carriage and Iron Co v Riche (1875)
LR 7 HL 653
Attorney-General v Fulham Corporation [1921] 1 Ch 440; (1921) 90 LJ Ch 281;
85 JP 213; 19 LGR 441
Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473, HL
Attorney-General v Manchester Corporation [1906] 1 Ch 643
Attorney-General v Smethwick Corporation [1932] 1 Ch 562
Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR 884, CA; (1922) 38
TLR 781, HL
Congreve v Home Office [1976] QB 629; [1976] 2 WLR 291; [1976] 1 All
ER 697, CA
Appeal against
decision of Popplewell J
This was an
appeal against the decision of Popplewell J ([1989] 2 PLR 22), who
refused an application by the appellants for judicial review of a decision of
the respondent local planning authority not to revoke an earlier decision to
make charges for planning consultations.
Scrivener QC and Richard Rundell (instructed by Metson Cross & Co) appeared
for the appellants.
Elizabeth Appleby QC and David Mole (instructed by the solicitor to Richmond
upon Thames London Borough Council) appeared for the respondents.
following judgment was delivered.
SLADE LJ: This is the judgment of the court on an appeal by McCarthy &
Stone (Developments) Ltd (‘the developers’) from an order of Popplewell J made
on January 30 1989 whereby he refused their application for judicial review.
The delay in delivering this judgment, which has been aggravated by a series of
mischances, is regretted.
The appeal
concerns the legality of the policy of the respondents Richmond upon Thames
London Borough Council (‘the council’) in seeking to levy a charge for
consultations between developers and the council’s planning officers
preliminary to formal applications for planning permission.
The council
are a local planning authority within the provisions of section 1 of the Town
and Country Planning Act 1971, as amended. By virtue of section 29 of that Act
they are charged with the duty of determining applications for planning
permission properly submitted to them.
It is common
practice for persons who are contemplating proposals for development or
redevelopment to seek the informal views of the officers of the planning
authority concerned so as to discover whether the proposals are likely to be
acceptable. The advantages of this process are well described in an affidavit
sworn by Mr RDF Bagley, a solicitor employed by the developers, as follows:
Such
inquiries are of a routine nature when considering either development or
redevelopment proposals. They are of great assistance to both the potential
developer and the planning authority. By such means a developer can be guided
towards the type of proposal that is likely to be thought desirable or
acceptable by the planning authority and tends to reduce the number of refusals
of planning applications in respect of matters that might have been identified
and remedied before an application is submitted.
Pre-application
consultation process of this kind has been encouraged by the Secretary of State
for the Environment in para 6 of Circular 22/80 in giving advice to planning
authorities on the policy and practice of development control. Furthermore, in
para 16 of Circular 2/87 planning authorities were warned that if they:
. . . have
refused a request from the appellant to discuss the planning application, or
the possibility of granting planning permission . . . or have refused to
provide information which they could be reasonably expected to provide, an
award of costs may be made if the appeal might otherwise have been avoided.
The
desirability of and need for facilities for pre-application consultation, in
the interests of all parties concerned, are common ground. The process,
however, inevitably absorbs time on the part of the council’s officers
concerned.
On July 2 1985
the council, by their planning committee, passed a resolution that a charge of
£ 25 be made for inquiries relating to speculative
or property. In making this decision, the committee had before them a report,
the following paragraph of which explains the thinking behind it:
Inquiries
relating to speculative redevelopment or development proposals, again made
usually by a prospective purchaser of land or property. This sort of inquiry
often arises where land or property is placed on the market and several
developers or prospective purchasers make inquiries of the Planning Office as
to future proposals, in order that a bid can be made for purchase. This type of
case involves the staff in a considerable amount of time and research and a fee
would seem to be appropriate. Inquiries are often received from owners of land
who wish to establish a value for future sale of their property and again, as
this is a speculative matter, a fee would seem to be reasonable. Where informal
proposals are submitted prior to the making of a planning application the
information given often results in a more realistic planning application being
submitted and permission being subsequently granted, thereby avoiding refusal
of permission. In these cases it is considered necessary to have a system which
is simple and easy to operate and therefore a flat fee of £ 20 (sic) is
considered reasonable. As regards casual inquiries made at the inquiry desk
information would still be given provided it did not involve considerable
search and staff time. In those cases which could not be dealt with at the time
requested then the inquirer would be asked to put their inquiry in writing and
enclose the appropriate fee.
The council,
in their evidence before the court, have explained that the fee is intended to
be in reimbursement of the cost of officers’ time taken up during such
consultations, rather than to produce a profit, and that it was considered
administratively convenient to introduce a flat fee. It is not contended that
the amount of the fee is either excessive or unreasonable, and indeed the
council’s evidence suggests that the charges made on average relate only to a
modest proportion of the total time spent in giving the relevant advice.
Pursuant to
their decision of July 2 1985, the council, in August 1986, charged the
developers a fee of £ 25 by way of a planning consultation fee for a meeting to
be arranged with the planning officer to discuss proposals to develop sheltered
housing for the elderly at Mortlake Bus Garage, Avondale Road, Richmond. The
developers immediately questioned the legality of the charge. On January 12
1987, the developers paid under protest a similar fee for another planning
consultation.
In a number of
letters, the developers contended that the council had no statutory authority
to levy such charges and asked them to reconsider their policy of levying fees
for consultations. However, on October 27 1987, the council’s solicitor wrote
to the developers informing them that they did not propose to revoke the
current policy.
On February 19
1988, pursuant to leave given by Webster J on February 11 1988, the developers
applied for judicial review of the council’s decision given by their letter to
the developers of October 27 1987. The form of relief sought was an order of certiorari,
a declaration that the council have no power to charge the fees in question and
damages in the sum of £ 50. Popplewell J refused this relief, and the
developers now appeal to this court.
It is common
ground (as it was in the court below) that the council can only do what statute
requires them to do or permits them to do and that it is for the council to
identify the statutory power which enables them to levy the fees in question
(see, for example, Attorney-General v Fulham Corporation [1921] 1
Ch 440 at p 450 per Sargant J).
Section 87(1)
of the Local Government, Planning and Land Act 1980 empowers the Secretary of
State to provide by regulations:
. . . for the
payment of a fee of the prescribed amount to a local planning
under the planning enactments for any permission, consent, approval,
determination or certificate.
However,
regulations made under this section will enable a planning authority to charge
fees only for dealing with the application itself, not for dealing with
pre-application inquiries.
The statutory
provision relied on by the council in the present case is section 111(1) of the
Local Government Act 1972. That section, which is headed ‘Subsidiary powers of
local authorities’, provides by subsection (1):
Without
prejudice to any powers exercisable apart from this section but subject to the
provisions of this Act and any other enactment passed before or after this Act,
a local authority shall have power to do anything (whether or not involving the
expenditure, borrowing or lending of money or the acquisition or disposal of
any property or rights) which is calculated to facilitate, or is conducive or
incidental to, the discharge of any of their functions.
Subsection (3)
provides:
A local
authority shall not by virtue of this section raise money, whether by means of
rates, precepts or borrowing, or lend money except in accordance with the
enactments relating to those matters respectively.
Even though no
statutory provision explicitly confers this power, it is common ground that section
111(1) is wide enough to empower the council to take part in
pre-application consultations, since any such activity is ‘calculated to
facilitate or is conducive or incidental to the discharge of’ their planning
functions under section 29 of the 1971 Act.
The
developers’ case, however, is that the subsidiary powers conferred by section
111(1) are not wide enough to authorise the council to charge potential
applicants who wish to avail themselves of these facilities, however reasonable
the charges themselves may be. Mr Anthony Scrivener QC, on their behalf, has
submitted that a local authority have no power to levy money from Her Majesty’s
subjects without the sanction of Parliament; that if such power is to exist, it
must be conferred in clear terms; and that the general subsidiary powers given
by section 111(1) do not incorporate an implied power to impose charges.
The developers
in their notice of appeal further submitted that the learned judge erred in
holding (as he did) that the terms of section 111(3) do not by themselves
operate to prohibit such charges. This subsection was no doubt included because
the local government legislation embodies a number of specific provisions
defining and limiting the powers of local authorities to lend money and to raise
money by means of rates, precepts or borrowing. (See simply, for example,
section 101(6) and Schedule 13 to the 1972 Act itself.) We did not understand Mr Scrivener as
repeating the last-mentioned submission, but, if he did, we would reject it.
The parenthesis in section 111(3) ‘whether by means of rates, precepts or
borrowing’ cannot, in our judgment, properly be read as if the words ‘or by any
other means’ were added; the list of methods of raising money set out in the
subsection to which the subsection is to apply, is, in our judgment, an
exhaustive one. As the judge pointed out, it is not contended in the present
case that the raising of money complained of (if indeed the introduction of the
fee system now under discussion constituted a raising of money, as to which see
below) was by means of ‘rates, precepts or borrowing’. Section 111(3)
therefore, in our judgment, imposes no restrictions on the council’s powers
directly material for present purposes.
In support of
his submission that explicit statutory authority is required for
where statute has conferred on local authorities an explicit power to charge
for their services. We will refer to some only of his examples. Section 73 of
the Public Health Act 1936, as amended, provides:
(1) A local authority may
undertake the removal of trade refuse, or any kind of trade refuse, from
premises within their district or from premises within any part of their
district, and an authority who have so undertaken shall at the request of the
occupier of any premises within the district or, as the case may be, within
that part of the district, remove from his premises any trade refuse to which
their undertaking relates and if without reasonable excuse they fail to do so
within seven days after the request, the occupier may recover from them
summarily as a civil debt the sum of 25p for every day during which the default
continues after the expiration of the said period.
(2) A local authority shall make reasonable
charges for removing trade refuse under this section.
Subsections
(2), (3), (4) and (5) of section 8 of the Public Libraries and Museums Act 1964
expressly authorise a library authority to make charges for certain specified
services. Section 8(1) of that Act provides:
Except as
provided by this section, no charge shall be made by a library authority
(otherwise than to another library authority) for library facilities made
available by the authority.
Section 20 of
that Act authorises a local authority ‘notwithstanding anything in section 8
above’ to ‘make or authorise the making of a charge for admission’ to certain
educational or cultural events.
Section 19(1)
of the Local Government (Miscellaneous Provisions) Act 1976 empowers a local
authority to provide certain recreational facilities. Section 19(2) empowers it
to make such facilities available ‘either without charge or on payment of such
charges as the authority thinks fit’.
Section 22(3)
of the Education Act 1980 provides that a local education authority, with
certain exceptions, ‘may make such charges as they think fit’ for school meals
provided under subsection (1)(a).
Section
145(2)(c) of the Local Government Act 1972 provides that a local
authority:
may themselves
make charges for admission to any entertainment given or dance or exhibition of
arts or crafts held by them and for any refreshment or programmes supplied
thereat.
Finally in
this present context, para 14 of the Local Land Charges Rules 1977 (SI 1977 no
985), read together with Schedule 3, makes express provision for fees paid for
land charge searches.
These examples
of statutory provisions, which explicitly empower local authorities to charge,
and the further examples given by Mr Scrivener, are not a comprehensive list.
All of them, in his submission, illustrate the general principle that if local
authorities are to have power to raise money for any purpose, such power must
be and will be explicitly conferred by Parliament. The incidental powers given
by section 111 do not, he argued, suffice for this purpose; any attempt by
local authorities to levy money for their use without explicit statutory
authority would be contrary to the Bill of Rights.
Mr Scrivener
referred us to two well-known cases where attempts by governmental authorities
to impose charges were held to be ultra vires. In Attorney-General
v Wilts United Dairies Ltd (1922) 38 TLR 781, under the Defence of the
Realm Acts and regulations, the food controller had imposed as a condition of
the grant of a licence to purchase milk in certain areas a charge of 2d per
gallon payable to him by the purchaser. The House of Lords
said (at p 782):
Neither of
those enactments enabled the Food Controller to levy any sum of money on any of
His Majesty’s subjects. Drastic powers were given to him in regard to the
regulation and control of the food supply, but they did not include the power
to levy money, which he must receive as part of the national funds. However,
the character of the transaction might be defined, in the end it remained that
people were called upon to pay money to the Controller for the exercise of
certain privileges. That imposition could only be properly described as a tax,
which could not be levied except by direct statutory means.
In his
judgment in the Court of Appeal in that same case (1921) 37 TLR 884, Scrutton
LJ had said (at p 885):
It is
conceivable that Parliament, which may pass legislation requiring the subject
to pay money to the Crown, may also delegate its powers of imposing such
payments to the Executive, but in my view the clearest words should be required
before the Courts held that such an unusual delegation has taken place. As
Chief Justice Wilde said in Gosling v Veley, 12 QB, at p 407:
‘The rule of law that no pecuniary burden can be imposed upon the subjects of
this country, by whatever name it may be called, whether tax, due, rate or
toll, except upon clear and distinct legal authority, established by those who
seek to impose the burthen, has been so often the subject of legal decision
that it may be deemed a legal axiom, and requires no authority to be cited in
support of it.
Similarly, in Congreve
v Home Office [1976] QB 629, the Court of Appeal held unlawful a demand
of £ 6 by the Home Secretary as the price of refraining from revoking a valid
and subsisting television licence. As Lord Denning MR put it (at p 652):
There is yet
another reason for holding that the demands for £ 6 to be unlawful. They were
made contrary to the Bill of Rights. They were an attempt to levy money for the
use of the Crown without the authority of Parliament: and that is quite enough
to damn them.
The background
to section 111 is explained thus in a note to Halsbury’s Statutes (4th
ed) vol 25 (p 279):
It was stated
in Department of the Environment Circular 121/72 that this section is a new
provision which puts beyond doubt that local authorities have power to do
anything which is calculated to facilitate, or is conducive or incidental to,
the discharge of any of their functions, even if they have no specific
statutory power for that action. This proposition had long represented the law
(see, in particular A-G v Smethwick Corpn [1932] Ch 562, [1932]
All ER Rep 304, CA), but the section was included for the avoidance of any
doubt which might hamper local initiative.
A brief
reference to a few authorities will suffice to explain the position before
section 111 was enacted. In Attorney-General v Great Eastern Railway
Co (1880) 5 App Cas 473, Lord Selborne LC, having referred to Ashbury
Railway Carriage and Iron Co v Riche (1875) LR 7 HL 653, said (at p
478):
It appears to
me to be important that the doctrine of ultra vires, as it was explained
in that case, should be maintained. But I agree with Lord Justice James that
this doctrine ought to be reasonably, and not unreasonably, understood and
applied, and that whatever may fairly be regarded as incidental to, or
consequential upon, those things which the Legislature has authorised, ought
not (unless expressly prohibited) to be held, by judicial construction, to be ultra
vires.
Lord Blackburn
(at p 481) said:
I quite agree
with what Lord Justice James has said on this first point as to prohibition,
that those things which are incident to, and may reasonably and properly be
done under the main purpose, though they may not be literally within it, would
not be prohibited.
Lord Watson
made observations to the same effect (at p 486).
Examples of
the application and scope of the principle are to be found in Attorney-General
v Manchester Corporation [1906] 1 Ch 643 and Attorney-General v Smethwick
Corporation [1932] 1 Ch 562.
In the course
of argument before this court, there was some discussion as to whether the
opening words of section 111(1) of the 1972 Act, ‘Without prejudice to any
powers exercisable apart from this section’, would enable a local authority
still to rely on the principle of Attorney-General v Great Eastern
Railway without reference to the subsection. We are disposed to think that
it would not. However, the point is academic, since in the course of argument:
(a) Miss Elizabeth Appleby QC, on behalf of the council, confirmed that she was
relying only on the powers conferred by section 111(1); and (b) Mr Scrivener
confirmed that he did not contend that the bracketed parenthesis in section
111(1) operated by way of construction to restrict the powers which are
conferred by the other words of that subsection.
If the doing
of any thing is to be authorised by section 111(1), the thing must be
‘calculated to facilitate’ or ‘conducive or incidental to’ the discharge of one
or more of the council’s functions. The wording of the subsection renders this
an imperative requirement. The developers do not dispute that the provision by
the council of the relevant facilities for consultation are themselves
‘calculated to facilitate’ or ‘conducive or incidental’ to the discharge of the
functions of determining planning applications imposed on the council by
section 29 of the Town and Country Planning Act 1971, and thus fall within the
council’s powers by virtue of section 111(1). But there, in their submission,
the line must be drawn. The council are under no obligation to offer these facilities,
yet if they choose to do so (so the argument runs), they must do so for no
payment; section 111(1) does not authorise them to demand a fee, however
reasonable in amount, for the exercise of the power.
In our
judgment, there is a fallacy in this argument, which was correctly identified
by Miss Appleby. The present case has to be distinguished from the many other
cases where the local authority are under a duty to offer a service, and
members of the public have a correlative right to require that service to be
provided (a right enforceable in an appropriate case by way of an application
for judicial review, even if no other remedy may be available). If Parliament
has imposed on a local authority a duty, but has not at the same time seen fit
to authorise it to impose charges on members of the public as a price for the
performance of that duty, it is not open to the authority to invoke either the
principle of Attorney-General v Great Eastern Railway (supra) or
section 111(1) by claiming that the imposition of charges is ‘calculated to
facilitate’ or ‘conducive or incidental’ to the discharge of such duties. If
they were to seek to charge in such circumstances, they would (to echo the
words of Lord Buckmaster in Attorney-General v Wilts United Dairies)
be calling upon people to pay money for the exercise of a privilege.
That, in our
judgment, is the reason why Parliament, by section 87(1) of the Local
Government, Planning and Land Act 1980, empowered the Secretary of State by
regulations to prescribe fees payable to local planning authorities in respect
of formal applications for permission, consent etc; they have a statutory
obligation to deal with such applications and, in the absence of a specific
authority to charge for dealing with them, could not properly do so.
So too with section 73 of the Public Health Act 1936. If the obligation to an
occupier imposed on the local authority by the second limb of section 73(1) had
stood alone, the authority would have had no power to charge an occupier for
the performance of that obligation. Likewise, in the Public Libraries and
Museums Act 1964, Parliament, having by section 7 imposed on ‘library
authorities’ a duty to provide a library service, thought it right by section 8
to define the scope of their power to charge for the provision of such
facilities.
We also accept
that in numerous instances where Parliament has conferred on a local authority
specific powers (albeit without obligations), it has at the same time, for the
sake of clarity, thought it right to state whether or not charges may be
imposed for the exercise of the power. Three good examples are to be found in
section 145(2) of the 1972 Act, section 19(2) of the Local Government
(Miscellaneous Provisions) Act 1976 and section 22 of the Education Act 1980.
In those cases where statute has invested local authorities with a specific
power to provide a facility for the benefit of the public without
specifically investing them with the power to charge for the provision of such
facilities, nice questions could arise as to whether section 111(1) would
empower them to do so. At least in some such cases the statutory formulation of
the power might leave no room for importing, by reference to section 111(1), a
subsidiary power to charge for its exercise.
Here, however,
we are not dealing with a case of this type. The legislature has specifically
conferred on planning authorities neither a duty nor a power to give
pre-application advice. The power to give such advice is itself merely a
subsidiary power, enjoyed by the local authority by virtue of section 111(1).
It arises simply because it is ‘calculated to facilitate or is conducive or
incidental to’ the discharge of their planning functions and is thus within the
words of section 111(1). That subsection confers the power to do anything
conducive or incidental to the discharge of the authority’s functions ‘. . .
(whether or not involving the expenditure, borrowing or lending of money or the
acquisition or disposal of any property or rights)’. If an activity or
transaction is to fall within section 111(1), it must be fairly calculated to
facilitate or must be conducive or incidental to the discharge of functions
imposed on the local authority; the authority will be acting beyond the powers
conferred by the subsection if they regard the activity or transaction as an
end in itself. Within these limits, however, and the further restrictions
imposed by subsection (3), the bracketed parenthesis in section 111(1) makes it
clear that it is by itself no objection that the activity or transaction in
question will involve the receipt of money by the local authority, in
particular by entering into contracts for the disposal of property or rights.
We do not accept what we understood to be Mr Scrivener’s submission, namely
that section 111(1) in no circumstances whatever empowers a local authority to
impose charges for providing goods or services.
In the present
case the evidence does not establish that a contractual relationship arises
between the council and those potential applicants who, in consideration of the
council’s agreeing to give them a pre-consultation, agree to pay a fee of £ 25.
Nevertheless, in our judgment, for the purpose of considering the issue before
us, the position is the same in all material respects as if a contract of this
nature had been freely entered into between the council and the developers. It
is common ground that the council are under no obligation whatever to provide
the facility in question. If they were to refuse to provide it altogether,
their refusal would, in our judgment, clearly not be open to judicial review.
The challenge is, effectively, simply to their unwillingness to provide the
service save on payment of a fee of £ 25. Though it has been suggested that
this attitude is akin to that of the government officers who were
and Congreve v Home Office, the suggestion is, in our judgment,
misconceived. In those cases the government officers concerned, without
authority from Parliament, were attempting to levy money for the use of the
Crown by charging the subject for the exercise or retention of a right; the
imposition of the charge amounted to an unlawful denial of the right. In the
present case all that the council are doing is to state, on a ‘take it or leave
it’ basis, to potential applicants who invite them to enter into
pre-application consultations, that they are willing to make an arrangement of
this kind if, as part and parcel of the arrangement, they are paid a stated
(reasonable) fee by way of reimbursement for their expenses. In our judgment,
it is clearly open to the council to regard the making of such an arrangement
of this kind as falling within the subsidiary powers conferred on them by
section 111(1) of the 1972 Act, provided only that such an arrangement is not
objectionable on Wednesbury grounds.
In their
skeleton argument, counsel for the developers, having referred to section
111(3), submitted:
The Council
if it wishes to raise additional revenue to cover the cost of pre-application
discussions may, as part of the rate making or borrowing process do so. It may
not simply levy a charge on the individual applicants.
We must not be
taken as necessarily accepting the proposition that the making of an
arrangement of the kind now under discussion, not on a profit-making basis but
by way of part reimbursement of the council’s expenses, can properly be
described as the ‘raising’ of money. However, this is a point which it is unnecessary
to decide. Even if it can be properly so described, in our judgment, they are
authorised by section 111(1) and not prohibited by section 111(3). Mr Scrivener
forecast dire consequences which might ensue if we were to dismiss this appeal.
For example, he suggested, local government officers might begin to demand fees
for responding to questions concerning social security or community charge; the
public accordingly might be gravely prejudiced. We say nothing about these
other hypothetical cases, save that in some situations the relevant statutory
framework may impose on government officers a duty to answer questions; in
others the introduction of a fee system might be objectionable on Wednesbury
grounds even if it fell within the strict wording of section 111(1). In the
present case the introduction of the fee system cannot possibly be attacked on
such grounds. Though a submission to this effect was made in the notice of
appeal, it has not been argued before this court that no reasonable council
could reasonably have introduced the arrangements under attack; on the
contrary, at least prima facie, they are fair, reasonable and sensible.
In conclusion,
we should mention two points. First, sections 150, et seq, of the Local
Government and Housing Act 1989 contain a number of new provisions relating to
the imposition of charges by certain authorities, but we do not think that this
legislation affects the question which we have to decide. Second, Mr G R
Cheesman, a solicitor employed by the council, referred in an affidavit to a
number of interesting examples where (according to his evidence) local
authorities in practice make charges in reimbursement of administrative or
other expenditure, in the absence of explicit statutory authority to do so. We
will not comment on the legality or otherwise of these particular practices
since they are not in issue before us. Nevertheless, if the developers’ very
narrow construction of section 111(1) (precluding the imposition thereunder of
monetary charges for services in any circumstances)
many aspects of local government.
In our
judgment, this construction is not the correct one. For the reasons stated, we
dismiss this appeal.
Appeal
dismissed with costs; leave to appeal to House of Lords granted.
