Council issuing enforcement notices in respect of defendants’ land — Council prosecuting defendants for breach of notices — Agreement reached to drop prosecution — Promise allegedly made by council’s solicitor that enforcement notices would be withdrawn — Judge finding council estopped from seeking injunction — Council appealing — Appeal allowed — Further appeal — Appeal dismissed
The first defendant, M (now deceased), owned land occupied by his son, J, the appellant. There was a background history of litigation instigated by the council with regard to M and J’s unlawful use of the land, generally concerned with enforcement notices and amenity notices. In particular, in 1996, the council served an amenity notice, under section 215 of the Town and Country Planning Act 1990, against which M and J appealed, and, in 1997, proceedings were issued in the magistrates court regarding breach of enforcement notices. In August 1998, the prosecutions were listed for an interlocutory hearing. On the day of the hearing, an agreement was reached between the parties’ solicitors, although the terms of this agreement were disputed. The council believed that criminal prosecutions would be dropped in return for a withdrawal of the appeal against the section 215 notice. M and J understood that the enforcement notices would be withdrawn. Subsequently, the council sought injunctive relief against M and J, under section 187B of the 1990 Act, with regard to the enforcement notices. H and J contended that the council were estopped from taking such action.
The judge, at first instance, held, inter alia, that the council’s solicitor had actual, or ostensible, authority to withdraw the enforcement notices and that he had given a clear and unequivocal promise, on behalf of the council, to do so. Accordingly, the judge held that the council were estopped from taking injunctive action. The council appealed. The court overturned that decision, holding that: (i) the judge was correct to conclude that such a promise had been made; (ii) the judge was in error to conclude that the council’s solicitor had the actual authority to make such a promise on behalf of the council; neither did he possess the ostensible authority to bind the council to such an agreement; and (iii) an enforcement notice is an important public document that runs with the land and is entered on the land charges register. There was no clear and compelling evidence that the council had intended their officer to make such binding decisions on their behalf. J appealed.
Held: The appeal was dismissed.
The court would not dispute the findings of fact made by the judge, at first instance, as to what had been agreed between the two solicitors. The promise had been made. However, the judge, at second instance, concluded correctly that the solicitor had neither actual nor ostensible authority to make such a promise on the council’s behalf, or to withdraw the enforcement notices. Even if the solicitor did have such authority, it would not mean that a legitimate expectation arose on the part of the appellant; the role of legitimate expectation in planning law was an area that was still developing: see Sullivan J in Henry Boot Homes Ltd v Bassetlaw District Council [2002] EWHC 546 (Admin); [2002] 13 EG 100 (CS). The respondents were therefore at liberty to seek an injunction, but, in exercising its discretion with regard to the injunction, the court may wish to take into account the oral agreement reached by the parties’ solicitors and the resulting disadvantage (if any) to the appellant, who acted in the belief that such an agreement had been reached.
David Lamming (instructed by Martin Murray & Associates, of Slough) appeared for the appellant; Philip Kolvin (instructed by Sharpe Pritchard) appeared for the respondents.
Vivienne Lane, barrister
