Local planning authority — Pre-application consultations between prospective developers and council planning officers — Council charging for advice — Whether charge ultra vires — Whether authorised by section 111 of the Local Government Act 1972
In July 1985
the respondent local planning authority resolved to make a charge of £ 25 for
inquiries relating to speculative development or redevelopment proposals made
by prospective purchasers of land or property. The appellant developers paid
under protest for two pre-application consultations with the council’s planning
officers. They challenged the legality of such charges and invited the
respondents to revoke their policy. Following the decision of the council not
to do so, the developers applied for judicial review of that decision.
Popplewell J ([1989] 2 PLR 22) held that the local authority had power to levy
the charges under section 111(1) of the Local Government Act 1972 and he
dismissed the application. An appeal by the developers was dismissed by the
Court of Appeal ([1990] 2 PLR 109) and they appealed further to the House of
Lords.
Statutory
authority was necessary to enable the council to charge for pre-application
advice. Such authority had to be found, if at all, in section 111(1) of the
1972 Act, either in express words or by necessary implication: see p 133H-134A.
The consideration and determining of planning applications was a function of
the council, but the giving of pre-application advice, although it facilitated,
and was conducive and incidental to, the function of determining planning
applications, was not itself a function of the council within the meaning of the
subsection. It did not follow that charging for that advice also
facilitated, or was conducive or incidental, to the council’s planning
functions: see p 137B-C. It was not a necessary implication that the council
could charge for services which they provided in their discretion as
facilitating or incidental to their planning functions. The words ‘by necessary
implication’ imposed a rigorous test going far beyond the proposition that it
would be reasonable, or even conducive or incidental, to charge for the provision
of a service: see p 137G-138C. Accordingly, the charge made by the respondents
was unlawful and the decision of the council not to revoke their policy was
quashed.
Attorney-General
v Wilts United Dairies Ltd (1921) 37 TLR
884, CA; (1922) 38 TLR 781, HL and Hazell v Hammersmith and Fulham
London
Decision of
the Court of Appeal [1990] 2 PLR 109 reversed.
to in the opinions
Ashbury
Railway Carriage and Iron Co Ltd v Riche (1875)
LR 7 HL 653, HL
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 Wilts United Dairies Ltd (1921) 37 TLR
884, CA; (1922) 38 TLR 781, HL
Harris v Wyre Forest District Council [1988] QB 835; [1988] 2 WLR
1173; [1988] 1 All ER 691; (1988) 87 LGR 19; 20 HLR 278; [1988] 1 EGLR 132;
[1988] 05 EG 57, CA; [1990] 1 AC 831; [1989] 2 WLR 790; [1989] 2 All ER 514;
(1989) 87 LGR 685; 21 HLR 424; [1989] 1 EGLR 169; [1989] 17 EG 68 & 18 EG
99, HL
Hazell v Hammersmith and Fulham London Borough Council [1990] 2 QB
697; [1990] 2 WLR 17; [1990] 3 All ER 33; (1990) 88 LGR 433, DC; [1990] 2 QB
697; [1990] 2 WLR 1038; [1990] 3 All ER 33; (1990) 88 LGR 433, CA; [1991] 2 WLR
372; [1991] 1 All ER 545; (1991) 89 LGR 271, HL
Ormond
Investment Co v Betts [1928] AC 143, HL
Appeal against
decision of the Court of Appeal
This was an
appeal by the appellants, McCarthy & Stone (Developments) Ltd, by leave of
the Court of Appeal, against the decision of the Court of Appeal (Slade and
Mann LJJ and Sir David Croom-Johnson) ([1990] 2 WLR 1294; [1990] 2 PLR 109) on
February 28 1990 dismissing an appeal by the appellants against a judgment of
Popplewell J dated January 30 1989 ([1989] 2 PLR 22) whereby he had dismissed
their application for judicial review of a decision of the respondent local
planning authority, Richmond upon Thames London Borough Council, not to revoke
an earlier decision to charge a fee of £ 25 for informal pre-application
planning consultations with officers of the council.
Scrivener QC and Richard Rundell (instructed by Metson Cross & Co) appeared
for the appellants, McCarthy & Stone (Developments) Ltd.
QC and Jane Oldham (instructed by George Chesman, assistant head of legal
services, Richmond upon Thames London Borough Council) appeared for the
respondents.
Their
lordships took time for consideration.
following opinions were delivered.
LORD MACKAY
OF CLASHFERN LC: My lords, I have had the advantage
of reading in draft the speech to be delivered by my noble and learned friend,
Lord Lowry. I agree with him that this appeal should be allowed with costs, for
the reasons he gives.
LORD BRIDGE
OF HARWICH: My lords, I have had the advantage of
reading in draft the speech of my noble and learned friend, Lord Lowry. I agree
with it and for the reasons he gives I would allow the appeal.
LORD
BRANDON OF OAKBROOK: For the reasons given in the
speech to be delivered by my noble and learned friend, Lord Lowry, I would
allow the appeal.
LORD
ACKNER: My lords, I have had the advantage of
reading in draft the speech to be delivered by my noble and learned friend, Lord
Lowry. I agree with it and for the reasons he gives I, too, would allow this
appeal with costs.
LORD LOWRY: My lords, this appeal is concerned with the legality of the policy
of the respondents, Richmond upon Thames London Borough Council (‘the council’),
which they adopted on July 2 1985 and under which they have made a charge for
consultations concerning speculative development or redevelopment proposals
between developers and the council’s planning officers preliminary to the
making of formal applications for planning permission. The charge fixed by the
council (which was selective) was £ 25 and is conceded to be reasonable in both
its incidence and its amount. It is, however, the lawfulness of charging at all
for this service which is in issue.
The appellants,
McCarthy & Stone (Developments) Ltd (‘the developers’), paid under protest
for two consultations which were held on August 13 1986 and January 12 1987 and
then, having first made unsuccessful representations to the council concerning
the legality of their policy, sought by way of judicial review to challenge the
council’s decision (contained in a letter dated October 27 1987) to continue
the practice of charging for preliminary consultations.
Popplewell J
dismissed the developers’ application and the Court of Appeal (Slade and Mann
LJJ and Sir David Croom-Johnson) unanimously dismissed the appeal from his
decision. The judgment of the court was delivered by Slade LJ and contains an
admirable summary of the facts which I could not hope to improve on and which I
gratefully adopt ([1990] 2 WLR 1294, at pp 1296A-1297H).1
1Also reported at [1990] 2 PLR 109 at pp 110C-111G.
The council
are a local planning authority and by virtue of section 29 of the Town and
Country Planning Act 1971 (now superseded by the Town and Country Planning Act
1990, of which the corresponding provision is section 70) were charged with the
duty of determining applications for planning permission properly submitted to
them. Section 87(1) of the Local Government, Planning and Land Act 1980
empowers the Secretary of State for the Environment to provide by regulations
for the payment of a fee of the prescribed amount to a local planning authority
in respect of planning applications. Such regulations have been made, but it is
common ground that the fees which they authorise (or could properly authorise,
having regard to the power conferred) relate only to planning applications and
not to any pre-application inquiries or consultations.
It is agreed
that, in order to charge for pre-application advice, the council need a further
statutory authority and that that authority must be found, if found at all, in
section 111(1) of the Local Government Act
implication. The section reads as
follows:
111.– (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 any thing (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.
(2) For the purposes of this section, transacting
the business of a parish or community meeting or any other parish or community
business shall be treated as a function of the parish or community council.
(3) 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.
(4) In this section ‘local authority’ includes
the Common Council.
The basis for
the proposition, which was accepted by both sides, that statutory authority to
charge is required is the well-known principle exemplified by the ratio
decidendi of Attorney-General v Wilts United Dairies Ltd (1921) 37 TLR
884 (CA); (1922) 38 TLR 781 (HL):
In these
circumstances, if an officer of the executive seeks to justify a charge upon
the subject made for the use of the Crown (which includes all the purposes of
the public revenue), he must show, in clear terms, that Parliament has
authorized, the particular charge. The intention of the Legislature is to be
inferred from the language used, and the grant of powers may, though not
expressed, have to be implied as necessarily arising from the words of a
statute; but in view of the historic struggle of the Legislature to secure for
itself the sole power to levy money upon the subject, its complete success in
that struggle, the elaborate means adopted by the Representative House to
control the amount, the conditions and the purposes of the levy, the
circumstances would be remarkable indeed which would induce the Court to
believe that the Legislature had sacrificed all the well-known checks and
precautions, and, not in express words, but merely by implication, had entrusted
a Minister of the Crown with undefined and unlimited powers of imposing charges
upon the subject for purposes connected with his department.
(per
Atkin LJ, 37 TLR 884, at p 886.) At p
887 Atkin LJ further observed:
It makes no
difference that the obligation to pay the money is expressed in the form of an
agreement. It was illegal for the Food Controller to require such an agreement
as a condition of any licence. It was illegal for him to enter into such an
agreement. The agreement itself is not enforceable against the other
contracting party; and if he had paid under it he could, having paid under
protest, recover back the sums paid, as money had and received to his use.
I refer also
to the observation of Scrutton LJ 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 hold 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.’
It is further
conceded by the council that the principle applies, whether the money is to be
received by the Crown or central Government or by a local authority such as the
council here.
In order to
succeed in the appeal, the developers must demonstrate to your lordships that
the Court of Appeal were wrong, but, speaking generally, as the courts below
rightly said, it is for the local authority to show that they have the right to
charge for the service provided.
My lords, I
have said that the power to charge a fee for the relevant service must, if it
exists, be found in section 111(1) either expressly or by necessary
implication. This provision, as both sides agree, gives statutory recognition
to the common law rule governing the activities of local authorities and other
statutory corporations, as recognised in such well-known authorities on the
doctrine of ultra vires as Ashbury Railway Carriage and Iron Co Ltd
v Riche (1875) LR 7 HL 653, Attorney-General v Great Eastern
Railway Co (1880) 5 App Cas 473 and Attorney-General v Fulham
Corporation [1921] 1 Ch 440. A local authority could at common law do
anything which was reasonably incidental to their functions and the council
here rely on the proposition that to impose a charge for pre-application advice
is reasonably incidental, not merely to the giving of that advice, but also to
the council’s function of considering and determining applications for planning
permission.
The definition
of ‘function’ is important and I would therefore refer at this point to the
recent case of Hazell v Hammersmith and Fulham London Borough Council
[1990] 2 QB 697 (DC and CA); [1991] 2 WLR 372 (HL), where certain local
authorities had engaged in speculative financial transactions and their power
to do so was in question. In the Divisional Court Woolf LJ reviewed section
111(1) and continued (p 722D):
This
subsection puts in a statutory form the long-established principle that local
authorities have implied power to do anything which is ancillary to the
discharge of any of their functions.
The fact that
subsection (1) is expressly made subject to ‘the provisions of this Act’ makes
it clear that it is important to construe section 111(1) in its context. The
reference to expenditure, borrowing or lending, etc, within the brackets in the
subsection do not themselves confer any power to expend, borrow or lend money,
etc, but only make it clear that the fact that those activities are involved
does not prevent the activities being within the power of the authority which
are authorised by this subsection.
The critical
part of the subsection are the words ‘calculated to facilitate, or is conducive
or incidental to, the discharge of any of their functions.’
authorised there must be some other underlying function which is authorised, to
the discharge of which, the activity will facilitate or be conducive or
incidental.
What is a
function for the purposes of the subsection is not expressly defined but in our
view there can be little doubt that in this context ‘functions’ refers to the
multiplicity of specific statutory activities the council is expressly or
impliedly under a duty to perform or has power to perform under the other
provisions of the Act of 1972 or other relevant legislation. The subsection
does not of itself, independently of any other provision, authorise the
performance of any activity. It only confers, as the sidenote to the section
indicates, a subsidiary power. A subsidiary power which authorises an activity
where some other statutory provision has vested a specific function or
functions in the council and the performance of the activity will assist in
some way in the discharge of that function or those functions.
In the Court
of Appeal Sir Stephen Brown P, delivering the judgment of the court, adverted
to Attorney-General v Great Eastern Railway Co (supra) and,
having set out section 111(1), said ([1990] 2 QB 697 p 785C):
Standing by
itself, this subsection would not seem to give rise to any particular
difficulty. We agree with the Divisional Court that in this subsection the word
‘functions,’ which is accompanied by no statutory definition, is used in a
broad sense, and is apt to embrace all the duties and powers of a local
authority: the sum total of the activities Parliament has entrusted to it.
Those activities are its functions. Section 111(1) confirms that, subject
always to any contrary statutory provision, a local authority has power to do
all the ancillary things requisite for carrying out those activities properly.
The construction accords with the codifying purpose for which the subsection
was enacted.
In this House,
Lord Templeman said [1991] 2 WLR 372 at p 383C:
In Attorney-General
v Great Eastern Railway Co (1880) 5 App Cas 473, Lord Blackburn said, at
p 481:
‘where there is an Act of Parliament
creating a corporation for a particular purpose, and giving it powers for that
particular purpose, what it does not expressly or impliedly authorise is to be
taken to be prohibited; . . .’
In the same
case Lord Selborne LC said, at p 478, that the doctrine of ultra vires:
‘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.’
In the same
vein Lord Blackburn said, at p 481:
‘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.’
Section 111
embodies these principles.
I agree with
the Court of Appeal [1990] 2 QB 697, 785C that in section 111 the word
‘functions’ embraces all the duties and powers of a local authority; the sum
total of the activities Parliament has entrusted to it. Those activities are
its functions.
The
observations of my noble and learned friend Lord Ackner at p 398B were to the
same effect where he said: ‘I accept that `functions’ in section 111(1) covers
the powers and duties of the local authority under the various provisions of
the Act‘ (emphasis supplied).
It is,
accordingly, clear that the consideration and determining of planning
applications is a function of the council, but the giving of pre-application
advice, although it facilitates, and is conducive and incidental to, the
function of determining planning applications, is not itself a function of the
council.
Thus, it is
one thing to say that the giving of pre-application planning advice facilitates
or is conducive or incidental to the council’s planning functions but it is
quite another thing to say that for the council to charge for that advice
also facilitates or is conducive or incidental to those functions. The council
presented their case on the basis that charging for the service facilitates, or
is conducive or incidental to, the giving of the pre-application advice but,
even assuming that to be a fact, this way of presenting the case would simply
amount to saying that imposing a charge facilitates, or is conducive or
incidental to, a service which in its turn facilitates, or is conducive or
incidental to, the council’s planning functions. The developers, on the other
hand, submit that, in order to qualify as something which is authorised by
section 111(1) the imposition of a charge for pre-application advice must
facilitate, or be conducive or incidental to, the planning functions
themselves. If not, the developers contend, the charge is not within the powers
of the council, since it is admittedly not authorised by any provision outside
section 111. In this connection the argument that something which is incidental
to the incidental (but not incidental to the function) does not pass the test
is not a novelty: see Attorney-General v Manchester Corporation
[1906] 1 Ch 643, at p 656 per Farwell J, cited in Hazell v Hammersmith
and Fulham London Borough Council [1990] 2 QB 697 at p 724.
My lords, let
me now turn to another argument for the council which found favour in the
courts below. In their judgment, the Court of Appeal have contrasted functions,
such as planning, which the council have a duty to provide, with those,
such as providing a museum, a library or a public park, which they have power
to provide, on the basis that without statutory authority the council cannot
charge for the provision of a function which they have a duty to
provide, whereas they can charge for a function which they have merely
power to provide (or not to provide) at their discretion. Thus, it is said, the
council can charge for a service which at their discretion they provide by
virtue of section 111(1), as facilitating or being conducive or incidental to
the relevant function (in this case the function of considering and determining
planning applications).
My lords, the
council’s interpretation of section 111(1) is built on that
by any means follow that all of the discretionary functions of the council or
all of the facilitating or incidental activities contemplated or possibly
contemplated by section 111 are services for which it is permissible to charge
in the absence of express authority to do so. The rule is that a charge cannot
be made unless the power to charge is given by express words or by necessary
implication. These last words impose a rigorous test going far beyond the
proposition that it would be reasonable or even conducive or incidental
to charge for the provision of a service. Furthermore, as it seems to me, the
relevance of the contrast attempted to be drawn, with respect to the power of a
council to charge, between duty functions and discretionary functions is
vitiated when one has regard to the large number of discretionary functions for
the provision of which express statutory authority to charge has been
enacted. I am not impressed by the submission that an express power to charge
for the performance of discretionary functions may have been conferred ‘for the
sake of clarity’.
In support of
their case the council instanced situations in which, without any express
authority, it seemed obvious that a charge would properly be made, but to say
that the council can receive payment for the sale of redundant and worn-out
equipment does not, to my mind, advance the argument that a council can without
statutory authority charge for a service. The power to sell, for
example, old motor cars for which the council no longer have a use necessarily
implies that, in the interests of the ratepayers, the council will recover from
a commercial transaction the return which any seller would expect to receive,
as a normal incident of local government administration. The provision for a
financial consideration of facilities to hold a conference was also discussed.
This, on the assumption that it is a legitimate activity, has the character of
conducting a business, and it would be a strange and unjust result if those who
enjoyed the use of the facilities provided were to do so at the expense of the
ratepayers or their modern equivalent. I would not be prepared to say (and it
is for present purposes unnecessary to say) that, in the absence of express
statutory power, there can never be a case in which the power to charge arises
by necessary implication, but I have heard no convincing argument to show how
the present facts could support such an implication.
The council
have cited Harris v Wyre Forest District Council [1988] QB 835
(CA); [1990] 1 AC 831 (HL), where, as prospective mortgagees, the local
authority charged the prospective purchasers and mortgagors of a house a
valuation and administration fee of £ 22. The explanation for this may be that
Parliament, having authorised the council to lend money on mortgage and having,
by section 43(3)(e) of the Housing (Financial Provisions) Act 1958,
required the council to obtain a valuation before advancing any money, must be
taken to have authorised the council to conduct their business transaction in
the same way as a bank or a building society might do. The question in that
case, as your lordships will recall, was not concerned with the lawfulness of
demanding payment of the £ 22 fee. That point was not discussed and I refrain
from discussing it now.
Your lordships
have seen the affidavit of Mr G R Chesman, assistant head of legal services
with the council. There is, of course, statutory authority for a council to
charge for a land charges search. As for the charges made for the other
services mentioned, they would all need to be considered individually in order
to decide by what authority, if any, and with what propriety each one has been
imposed.
Mr Scrivener,
for the developers, relied before your lordships, as he had in the Court of
Appeal, on section 150 of the Local Government and Housing Act 1989, which came
into force only on January 16 1990, having received the Royal Assent on
November 16 1989. It reads:
150.— (1) The Secretary of State
may make regulations providing that a charge may be imposed in respect of
anything-
(a) which is done by any relevant authority or
by any relevant authority of a prescribed description,
(b) which is prescribed or falls within a
prescribed description,
(c) in respect of which there is no power or
duty to impose a charge apart from the regulations, and
(d) which is not done in the course of
exercising an excepted function.
(2) The regulations may include such provision as
the Secretary of State sees fit as regards charges for which the regulations
provide; and nothing in subsections (3) to (5) below or section 190(1) below is
to prejudice this.
(3) The regulations-
(a) may be made as regards services rendered,
documents issued, or any other thing done by an authority (whether in pursuance
of a power or a duty);
(b) may provide that the amount of a charge
(if imposed) is to be at the authority’s discretion or to be at its discretion
subject to a maximum.
(4) Where the regulations provide that a charge
may not exceed a maximum amount they may-
(a) provide for one amount, or a scale of
amounts to cover different prescribed cases;
(b) prescribe, as regards any amount, a sum or
a method of calculating the amount.
(5) The regulations may include such
supplementary, incidental, consequential or transitional provisions as appear
to the Secretary of State to be necessary or expedient.
(6) No regulations may be made under this section
unless a draft of them has been laid before and approved by a resolution of
each House of Parliament.
It should be
noted that regulations made pursuant to this provision are to be subject to
affirmative resolution of both Houses.
The claim on
the part of the developers is that the enactment of this section shows that the
council’s interpretation of section 111(1) cannot be wellfounded, because, if
it were, section 150 would be left without a useful function. I do not think,
however, that this contention is necessarily correct, because section 150(1)(c)
might be contemplating a duty function in regard to which neither a
power nor a duty to charge had been enacted. The circumstances in which
resort can be had to later legislation for the purpose of statutory
interpretation are not entirely clear: see Maxwell, Interpretation of
Statutes 13th ed pp 69-71 and Ormond
your lordships with a discussion of the point on this occasion because I do not
consider in any event that section 150 of the Act of 1989 provides a reliable
indication as to the meaning of section 111. Two things, however, can be said:
section 150(3)(a) does not make in the charging context any distinction
between discretionary functions and duty functions; and the legislature, having
enacted section 150, has provided a convenient means of tidying up a confused
scene, so far as charging for services in the future is concerned.
What the Court
of Appeal had to say about section 150 in their judgment is found at [1990] 2
WLR 1294 at p 1304E:1
. . . section
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.
1[1990] 2 PLR 109 at p 117G.
I respectfully
agree.
The developers
in their notice of appeal from Popplewell J put forward another argument based
on section 111(3) to the effect that that subsection completely prevents a
local authority from raising money by virtue of section 111, and in
particular by virtue of section 111(1), with the result that no charge can be
made for any service unless authority is found outside section 111. The Court
of Appeal, quite rightly in my view, rejected that argument. The subsection
forbids (1) the raising of money by any one of three methods and (2) the
lending of money, in each case except in accordance with the specific
enactments which deal with the subject. The developers’ argument would require
the addition of the words ‘or otherwise’ after the word ‘borrowing’ to get off
the ground and, even then, in the context of ‘rates, precepts or borrowing,’ to
equate charging for a service with the raising of money appears to me to demand
a very forced interpretation of language. I therefore agree with the conclusion
of the Court of Appeal that section 111(3) ‘imposes no restrictions on the
council’s powers directly material for present purposes.’ I would, however, point out that section
111(3), on its true construction, does not provide any affirmative support for
the argument that section 111(1) is an authority for making the charge with
which this appeal is concerned.
The clues to
interpretation to be derived from other statutory provisions were of modest
persuasive force, but perhaps I might mention certain paragraphs of Circular
28/83 [Welsh Office Circular 23/83] — Publication by Local Authorities of
Information about the Handling of Planning Applications issued jointly by
the Department of the Environment and the Welsh Office on December 29 1983:
7. The
Secretaries of State recognise that local planning authorities are concerned to
ensure that the development control system is operated in a way which serves
the best interest of the community and secures
handling of planning applications, and authorities are reminded of the need to
take account of the advice contained in DOE Circular 22/80 (Welsh Office
Circular 40/80). Local authorities, applicants and consultees all have
important roles to play in ensuring not only a speedy and efficient service but
also one which takes proper steps to secure local planning policies.
8. Local
authorities’ attention is drawn to the need for:
(i) prompt decisions to be seen to be a
priority by local authority members and officers;
(ii) procedures to be designed to avoid
unnecessary delay;
(iii) those procedures to be reviewed periodically
and adjustments made to meet changing circumstances;
(iv) early informal discussions with applicants
and their agents to be encouraged. Where possible, these should include
discussion about features of schemes which may give rise to the imposition of
conditions in the event of permission being granted. Applicants can then
consider the scope for adjusting the scheme prior to formal submission of a
planning application so as to render the conditions unnecessary if the local
planning authority are minded to grant planning permission;
(v) planning departments to (a) co-ordinate the
requirements of statutory consultees; (b) make particular efforts to resolve
any conflicting requirements; and (c) where necessary, invite those
organisations and departments with an interest in applications to be
represented at any meetings with applicants or their agents.
9. The
attention of applicants is drawn to the need for early discussions to be held
with local planning authorities so that:
. . .
16. There
will be some financial and manpower costs associated with the implementation of
this code. These costs will vary between local authorities according to the
extent to which information is already collected by them for their own use.
However, there may be some off-setting benefits to be obtained by local
authorities from the use of the information required by the code in the
management of their development control duties.
The developers
placed some reliance on para 16 as showing that local authorities were expected
to incur expense by providing a mutually helpful service, but, as your
lordships have seen in the present case, even if fees were charged, the
recommended service was unlikely to pay for itself out of direct revenue. I do
not consider that it is either justifiable or necessary for the developers to
look to such a slender argument in order to support their case.
My lords, I
come back to section 111(1), the relevant provision. The council admit that
they cannot without express authority charge for a ‘duty function,’ but they
still have to say that the ability to charge for pre-application advice is
based on the ‘power to do any thing’ which is ‘incidental’ (I deliberately
choose the most neutral qualification) ‘to the discharge of any of [the
council’s] functions’. To charge for performing a function (subject always to Wednesbury
considerations, which do not arise here) must always be incidental to the
provision of the service provided. Therefore the council’s interpretation of
section 111(1) would
discretionary, which provided a service. (And, even without section 87(1),
there would be nothing unreasonable or irrational in charging a proper fee for
determining a planning application.)
Such a construction of the subsection cannot possibly be justified, and
I say this before even considering the point that, in the absence of express
statutory authority, the power to charge can only be implied, in the words of
Atkin LJ supra, ‘as necessarily arising from the words of a statute’.
There is yet a
further point, to which I have already adverted. As the Court of Appeal have
said ([1990] 2 WLR at p 1302H1), the power to give pre-application
advice is neither a duty nor a discretionary express power, but is a subsidiary
power arising by virtue of section 111(1) (which has codified the common law),
because it is calculated to facilitate, or is conducive or incidental to, the
discharge of one of the council’s functions. To charge for the exercise of that
power is, at best, incidental to the incidental and not incidental to the
discharge of the functions.
1[1990] 2 PLR 109 at p 116D.
A further
point ([1990] 2 WLR at p 1303D-H2) which commended itself to the
Court of Appeal was the argument that, since the council were not obliged to
provide the service in question, they could state on a ‘take it or leave it’
basis that they were willing to provide it for a reasonable fee, as if entering
into a contract. I consider this to be an untenable proposition which, if
correct, would justify a local authority in charging for any discretionary
service, but which in reality is in conflict with the second principle
enunciated by Atkin LJ in Attorney-General v Wilts United Dairies Ltd
(1921) 37 TLR 884 at p 887 (already cited).
2[1990] 2 PLR 109 at pp 116G-117C.
My lords, for
these reasons I would allow the appeal and would order the council to pay the
developers’ costs in this House and in the courts below.
Appeal
allowed with costs.
