The courts have long recognised that legitimate expectation – as a principle of public law – is capable of applying in the context of town and country planning. That said, the cases demonstrate that there is much more scope for procedural, rather than substantive, legitimate expectation.
For a claim based on legitimate expectation to be successfully advanced, a public authority must have represented (either by way of an express promise or implicitly by way of past practice) that it will conduct itself in a particular way. It may then be argued that the representation gives rise to a legitimate expectation on the part of the person to whom it was made that the public authority will so act. Should the argument succeed, the public authority may have to give effect to that expectation.
However, the decision of the Upper Tribunal (Lands Chamber) in Obichukwu v The Mayor and Burgesses of the London Borough of Enfield [2015] UKUT 0064 (LC) confirms that the principle has no application in relation to the code for compensation where land has been acquired compulsorily. In other words, that code is intended to be self-contained, and to operate according to its own defined procedures.
In that case the claimant had referred a claim for compensation to the tribunal. It directed the trial of preliminary issues to determine whether she had an entitlement to compensation. One of those issues raised the question of the availability, or otherwise, to the claimant of an argument based on the principle of legitimate expectation.
The acquiring authority had made a CPO in respect of the claimant’s leasehold property – which she held from it – together with other properties, and submitted it to the secretary of state for confirmation. Objections were made, and a public inquiry was scheduled. Misguidedly, in the events that happened, on the day of the public inquiry the claimant withdrew her objection, and surrendered her lease to the acquiring authority by operation of law. The acquiring authority subsequently took the view that, having surrendered her lease, the claimant lost all entitlement to compensation.
The tribunal, while expressing some discomfort with conclusion that it found itself bound to reach, held that there was no authority for the proposition that the public law doctrine of legitimate expectation could be used to create an entitlement to pursue a claim for compensation, where the statutory procedures had not been implemented.
John Martin is a planning law consultant
