Council issuing enforcement notices in respect of defendants’ land – Council prosecuting for breach of notices – Agreement reached to drop prosecution – Defendant alleging promise made by council’s solicitor that enforcement notices to be withdrawn – Council seeking injunction – Judge finding council estopped from seeking injunction – Council appealing – Appeal allowed
The first defendant owned land that was occupied by his son, the second defendant. The appellant council issued enforcement notices in respect of the defendants’ unlawful use of the land. They also served an amenity notice under section 215 of the Town and Country Planning Act 1990, against which the first defendant appealed. The council brought prosecutions against the first defendant for breach of the enforcement notices. In August 1998 the prosecutions were listed for an interlocutory hearing. The council were represented by a solicitor, instructed as their agent. The defendants were also represented. The council believed that, on the day of the hearing, the respective solicitors had agreed that the criminal prosecutions would be dropped in return for a withdrawal of the appeal against the section 215 notice. However, the second defendant alleged that the council’s solicitor had also offered to withdraw the enforcement notices themselves. Subsequently, the council sought injunctive relief, under section 187B of the 1990 Act, against both defendants arising out of their breaches of the enforcement notices. The second defendant contended, by way of a preliminary issue, that the council were estopped from taking such action.
The judge held that the council’s solicitor had actual or ostensible authority to bind the council by the agreement alleged by the second defendant and that he had given a clear and unequivocal promise, on behalf of the council, that the enforcement notices themselves would be withdrawn. Accordingly, the judge held that the council were estopped from taking injunctive action based upon those notices.
The council appealed, inter alia, on grounds that: (i) the council’s solicitor had no actual or ostensible authority to agree the withdrawal of the enforcement notices. They submitted that there was no evidence of actual authority. Clearly, a solicitor acting for the council in a prosecution for breach of an enforcement notice had authority to withdraw the prosecution if appropriate, but his authority could not go so far as to withdraw the enforcement notice itself; and (ii) the judge erred in finding that there had been a clear and unequivocal promise.
Held: The appeal was allowed.
The judge did not err in finding, on all the evidence before him, that a clear and unequivocal promise had been made. However, there was no doubt that the council’s solicitor did not have actual authority to bind the council to an agreement that the enforcement notices themselves would be withdrawn. Nor could he be said to have had ostensible authority to bind the council to such an agreement. An enforcement notice was an important public document, which runs with the land. It was entered on the land charges register. There would need to be clear and compelling evidence of the council holding out their officer as having ostensible authority to bind them regarding withdrawal of the notices themselves. There was no such evidence in the instant case. The judge erred in finding that the council were estopped from seeking an injunction. The promise had to be considered as a whole. As there was no ostensible authority to withdraw the enforcement notices, there could be no estoppel based upon what remained of the promise.
Philip Kolvin (instructed by Sharpe Pritchard) appeared for the appellants; David Lamming (instructed by Martin Murray & Associates, of South Berkshire) appeared for the respondents.
Sarah Addenbrooke, barrister
