Cox v First Secretary of State

MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of an inspector appointed by the First Secretary of State. The decision is contained in a decision letter dated 17th December 2002. In his decision the Inspector dismissed the claimant's appeal against the refusal of the second defendant, Carrick District Council ("the Council"), to grant planning permission for the erection of a dwelling on a site at Woodlands, Ponsanooth, Truro. In planning policy terms the Inspector concluded that there was "a strong presumption of refusal" under section 54A of the Act. In summary, the site is in the countryside and does not meet policy criteria for approval of residential development in the countryside; the site is in an area of great landscape value and any new dwelling on the site would be harmful to the landscape; there is inadequate visibility at the access point onto the A393, which is a busy road; and in design terms the scale of the proposed house "would be bulky and would have a harmful effect on the scenery".

In paragraph 19 of the decision letter the Inspector recognised that these objections to the grant of planning permission had to be "balanced against the other material considerations submitted in evidence". Those material considerations were essentially twofold. The first, and principal, consideration urged in favour of granting planning permission was the existence of a fallback option to build a house on the site in accordance with details which had been approved in 1994. The Council preferred the earlier design, because it was smaller. The Inspector concluded that there was no fallback option.

Mr Cox contends that he was wrong so to conclude. The relevant planning history is not in dispute and the salient events are summarised in paragraph 21 of the decision letter.

On 21st March 1989, outline planning permission was granted for a cottage-style dwelling personal to Mr Cox subject to nine conditions. Conditions 2 and 3 were the standard time limit conditions for the submission of reserved matters within three years and the commencement of development within five years.

On 22nd June 1992, under decision notice OE20/0343/92, planning permission was granted under section 73 of the Act for what was described as extension of outline consent for the erection of a dwelling dated 21/3/89 to allow further period of time. That permission was subject to 11 conditions. They included the standard reserved matters condition requiring that detailed matters should be submitted for approval within two years, that is to say by 21st June 1994, and providing for the expiration of planning permission in five years, that is to say by 21st June 1997, or two years from the final approval of the reserved matters, whichever was the later.

On 26th May 1994, that is to say within the time limit for the submission of reserved matters for approval, the Council received an application for approval of the matters reserved under condition 2. That application was granted on 18th October 1994 under reference SA20/0660/94.

Pausing there, it will be seen that condition 2 in the 1992 permission had been satisfied, but condition 3, requiring the commencement of the development within five years from the date of the permission, i.e. by 21st June 1997, still applied.

There then followed the application which is of critical importance for the purpose of deciding whether or not Mr Cox had a fallback position. By letter dated 23rd September 1996, addressed to the Chief Planning Officer, an agent on behalf of Mr Cox wrote:

Pausing there, the Inspector described this application as "rather a muddle". That was a charitable description. Decision SA/20/0660/94 was an approval of details, not a grant of planning permission. As such it contained no time limit. The Council had no power to grant planning permission "for an extension of time" of a reserved matters approval.

Regulation 3 of the Town And Country Planning (Applications) Regulations 1988 prescribes the form in which applications for planning permission must be made. As a relaxation of the normal requirements, that an application shall be made on a form provided by the local planning authority, that it shall include the particulars specified on the form and be accompanied by appropriate plans depending upon whether it is a detailed or an outline application, Regulation 3.3 provides:

The letter dated 23rd September 1996 enclosed an application form. Although it is true the application form stated that it was not an application for the "lifting or modification of a condition", it did not state that it was an application to renew the outline planning permission granted in 1992. Whatever was being sought, it was not a "temporary permission" as stated on the application form.

Faced with this application, the Council had to decide how to respond. It interpreted the application as an application for permission under section 73 of the Act, often described as an application to "vary conditions", but more accurately described as an application for a (fresh) planning permission to develop land without complying with the conditions imposed upon an earlier permission: see R v Leicestershire County Council ex parte Powergen 81 P&CR 47, per Schiemann LJ in paragraphs 26 and 27.

It is plain from the decision notice dated 27th November 1996 that this is how the Council did interpret the 1996 application. The decision notice grants permission on an outline application "as specified above". The proposal specified above is "modify stat cond 3 on decision OE/20/0343/92 dated 22/6/92 to allow further time to commence development."

The 1996 planning permission is subject to 11 conditions. Conditions 2 and 3 are, yet again, the standard conditions requiring application for approval of reserved matters shall be made within three years from the date of the permission and that the development shall be begun within five years from the date of the permission or two years after final approval of details.

In October 1999 an application under section 73 to modify condition 3 in the 1996 application to allow yet further time to commence the development was refused.

The appeal application was made on 18th July 2001 and refused on 29th October 2001. On 23rd November 2001 a trench was dug which was said to represent the commencement of the dwelling for which planning permission was granted in 1996. It is common ground that the position of the trench was in accordance with the details which had been approved in 1994.

The Inspector concluded that the Council had granted a fresh planning permission under section 73 in 1996, that it had been reasonable for the Council to respond to the application in this way, and that the consequence was that the time limit for submission of reserved matters for approval under condition 2 of the 1996 permission "began again to tick away". Mr Cox did not submit any details for approval pursuant to condition 2 in the 1996 permission, "So the opportunity to submit reserved matters under the 1996 outline planning permission expired in 1999, without any timely response on behalf of Mr Cox" (paragraph 23 of the decision letter). Mr Cox submits that the Inspector erred in thus concluding because the 1996 application "was a renewal application made under the simplified procedures set out in [Regulation 3]. It was not an application made under section 73 of the Act".

The problem with that submission is twofold. Firstly, the 1996 application did not purport to be an application to renew the 1992 permission. Neither renewal nor the 1992 permission are anywhere mentioned in the letter or in the application form. Moreover, it is by no means clear that the application was being made under Regulation 3(3) at all. One would expect such an application to be made by letter, but the letter dated 26th September enclosed the Council's standard application form for applying for planning permission. Secondly, even if the application could have been interpreted as an application in writing under Regulation 3(3), and might have been interpreted as a renewal application under paragraph (a) of Regulation 3(3), it was not so interpreted by the Council. On the basis that the application was made under Regulation 3(3), it could equally well have been an application under paragraph (b) for a fresh planning permission under section 73, and that is how the Council interpreted it. There was no challenge, by way of appeal to the Secretary of State or application for judicial review, of the Council's decision in 1996 to grant a fresh planning permission under section 73.

Mr Cox raised a number of subsidiary arguments under the heading of this first ground of challenge, but they all depended upon the erroneous proposition that the Council was not entitled to treat the 1996 application as an application for permission under section 73. The grant of permission in 1996 did not take away Mr Cox's rights under the 1992 permission. Having complied with condition 2 in that permission, he could have begun development in accordance with the 1992 permission at any time up to 21st June 1997. He did not do so, nor did he submit details for approval under condition 2 of the 1996 planning permission.

That leads on to Mr Cox's second ground of challenge. In mid-1998 or early 1999 he had a meeting with one of the Council's planning officers, Mr Curnow. Mr Curnow had delegated authority to decide applications for approval of reserved matters. Mr Cox contends that Mr Curnow at that meeting confirmed that the reserved matters approved under condition 2 in the 1992 permission could be "carried forward" to establish compliance with condition 2 in the 1996 planning permission. It is unnecessary to consider whether an approval of conditions could lawfully have been "carried forward" in that way, or whether Mr Curnow would have had authority to carry them forward, because the Inspector did not accept Mr Cox's evidence on this point. In paragraph 32 of his decision letter he said this:

The inquiry lasted for three days, between 13th-15th November 2002. A number of witnesses were called before the Inspector, they included Mr Cox and Mr Curnow (who was by then employed by another local planning authority). Although Mr Cox criticises the Inspector's conclusion that Mr Curnow's advice in mid-1998 or early 1999 was ambivalent, it was a conclusion which was open to the Inspector having heard all the evidence. Indeed, the Inspector's assessment that the advice was ambivalent is reinforced by Mr Cox's own witness statement which was before the Inspector. In that witness statement he had said:

I indicated to Mr Cox that I would be prepared to consider this late evidence. Though I bear in mind that the defendants have had no opportunity to answer it and so I do not know what Mr Curnow's response would have been. At its highest, it would appear to confirm the Inspector's view that this was a casual meeting and the advice "that's all right then" could fairly be described as ambivalent, given that a fresh planning permission had been issued in 1996 and that it was still (in early 1999) open to Mr Cox to comply with condition 2 in that permission.

Thirdly, Mr Cox submits that the Inspector misdirected himself in finding that the 1996 planning permission was clear and unambiguous and that in interpreting it he should not consider extraneous material. I have set out the relevant terms of the 1996 permission (above). It is, clearly and unambiguously, a fresh planning permission under section 73 and no amount of extrinsic evidence, even if it was admissible, could alter that position. Having described the proposal, the permission refers to "the plans attached to the original decision notice". Mr Cox takes issue with the Inspector's conclusion (in paragraph 29 of the decision letter) that this was a reference to the site plan accompanying the 1989 outline planning permission rather than the plans in the 1994 reserved matters approval. He submits that since the 1989 permission is not referred to on the face of the 1996 permission, the Inspector was improperly having regard to extrinsic evidence. If he was going to have regard to extrinsic evidence he should have had regard to the totality of that evidence, including the plans approved in 1994.

I do not accept that submission. If one asks the question what was "the original decision notice," one is led back by the description of the proposal to the 1992 permission. It is common ground that there were no plans with that permission because it was described as an "extension" of the 1989 permission. Nevertheless, the 1992 permission also refers to "the plans attached to the original decision notice". Since it refers on its face to the 1989 decision, it is legitimate to look at that decision to see if it is indeed the original decision notice. If one does that, it becomes plain that the original decision notice was indeed the 1989 permission which was "extended" in 1992 and then further "extended" in 1996, not the 1994 approved reserved matters.

Mr Cox's fourth ground of challenge alleges that the Inspector was misled by a false assertion on the part of the Council as to the reason for reimposing condition 2 in 1996. Mr Cox seeks to rely on a case officer's record sheet prepared in 1996 which indicates that the officer, wrongly, thought that no detailed plans had been submitted pursuant to condition 2 in the 1992 permission and that further time was being requested to enable the submission of detailed plans. The record sheet was not placed in evidence before the Inspector, but the reason why the Council dealt with the 1996 application in the manner that it did is, as Mr Maurici points out on behalf of the Secretary of State, irrelevant. Beyond saying that the Council's response to the application was reasonable, the Inspector's decision letter does not speculate about the reasons why the Council took the course that it did. Whether because of a mistake, or for some other reason, the fact remains that the Council treated a muddled and ambiguous application as an application for permission under section 73 and granted permission accordingly.

The second material consideration that was urged in favour of granting planning permission was the fact (which was accepted by the Council) that it had given misleading information to Mr Cox prior to the appeal. It was contended on his behalf that this gave rise to "an estoppel, or in the terms that the House of Lords have very recently laid it down a legitimate expectation". In submissions made by Mr Cox's solicitor at the inquiry, both legitimate expectation and estoppel were relied upon. Mr Cox criticises the Inspector for saying that he had "asserted estoppel, by legitimate expectation" (paragraph 5 of the decision letter). While the phrase might not be ideal from a lawyer's point of view, it was nevertheless a fair summary of the point that was being made on the claimant's behalf.

In the fifth ground of challenge Mr Cox does not contend that there was an estoppel. He submits that there was a legitimate expectation and the Council's resiling from its earlier advice to him amounted to an abuse of power (the sixth ground of challenge). The Inspector concluded that there was no abuse of power. In my judgment, it could not possibly be said that this conclusion of the Inspector, who had heard a great deal of evidence over three days, was unreasonable. The 1992 permission had expired in 1997. The Inspector had concluded that the advice that was given to Mr Cox in mid-1998 or early 1999 (at a time when the 1996 permission could still have been implemented if details had been approved pursuant to condition 2) was ambivalent. That conclusion is fatal to any finding of a legitimate expectation at that time. It is also relevant to mention in this context that the Inspector concluded that Mr Cox, although confused, had access to independent professional advice throughout (paragraph 31). If one then moves on to the subsequent meetings between Mr Cox and Council officers in 2001, it will be remembered that by that time a further section 73 application to extend time for completing the development had been refused in 1999. In connection with the appeal application, Mr Cox and his architect had discussions with the Council:

The application under appeal before the Inspector was refused on 29th October 2001. Mr Cox did not dig the trench, allegedly pursuant to the permission granted in 1996, until 23rd November 2001.

Mr Cox accepts that legitimate expectation has a very restricted role in the planning field: see the decision of the Court of Appeal of Henry Boot Homes v Bassetlaw District Council [2002] 2 EWCA Civ 893 per Keene LJ at paragraphs 50 to 56. It is unnecessary to consider these restrictions in any detail because it is plain that on the facts found by the Inspector there could be no legitimate expectation here.

Having (erroneously) told Mr Cox that the 1996 permission was still extant and could be implemented until November 2001, the Council nevertheless refused his application for planning permission. He appealed, and in doing so relied in his submissions to the Secretary of State on the 1996 planning permission as a fallback. In its response, the Council, in May 2002, strongly disputed that there was such a fallback position. Mr Cox did not have a legitimate expectation that the Council would continue to accept that he had a fallback position. In reconsidering the matter for the purposes of the inquiry, the Council were entitled to correct their earlier legal error and contend in support of their reasons for refusal of planning permission that there was in fact no fallback position because the 1996 planning permission had lapsed. It would have been wholly artificial, and indeed most unfair, to have prevented them from raising such an argument once they had realised their error.

Whilst I accept that reliance is not always an essential element of a legitimate expectation, it is nevertheless a relevant factor. On the facts here, any reliance upon the erroneous advice was minimal. Mr Cox dug the trench after the Council had refused planning permission in response to his 2001 application. He did so in order to bolster his case on appeal by, as he thought it, preserving the 1996 planning permission.

There is no date in the Inspector's report as to when a workshop on the site had been demolished. Paragraph 10 states that the workshop had been "recently" demolished. It will be remembered that the Council had made its revised position, that there was no fallback on which Mr Cox could rely, plain in its representations at least as early as May 2002, well before the inquiry which had been held in November 2002.

In these circumstances, the Inspector was entitled to reject this second material "consideration" as a justification for granting planning permission, and to conclude in paragraph 38:

In response to the second material consideration, that is to say the misleading advice given by the Council, the Inspector acknowledged (in paragraph 40 of his decision letter) that the outcome of the appeal would be a great disappointment to Mr Cox:

The Inspector's approach cannot be faulted. The grievance as a result of unintentionally misleading advice in relation to informal enquiries could not possibly amount to a legitimate expectation such as to warrant the grant of planning permission contrary to the very powerful planning objections identified by the Inspector. It might well found a justified complaint of maladministration to the local government ombudsman, but that is another matter and does not cast any doubt upon the correctness of the Inspector's decision.

For these reasons this application must be dismissed.

MR MAURICI: My Lord, in those circumstances I ask, in addition to the application being dismissed, that Mr Cox pay the first Secretary of State's costs. My Lord, I have a revised schedule here. Some time has been taken off because of course less time has been spent in court today than might have been.

MR JUSTICE SULLIVAN: Yes.

MR MAURICI: My Lord, Mr Cox has been given a schedule. The revised statement comes to £5,682.75. My Lord, I would ask that the costs be summarily assessed in that amount.

MR JUSTICE SULLIVAN: So far as the principle is concerned, Mr Cox, is there any good reason why you should not pay the Secretary of State's costs?

MR COX: As far as the principle is concerned, no.

MR JUSTICE SULLIVAN: You accept it. Do you want to say anything about the amount? If you do not I might ask Mr Maurici about the amount of work done on the documents, which is a lot.

MR COX: I will leave it to you, sir.

MR JUSTICE SULLIVAN: Thank you. I am not saying this in any critical way, Mr Maurici. It is always very difficult in these cases, and I know the Treasury Solicitor is very thorough, and I do not seek to criticise because very often that is very helpful, but there is a lot of work done on these documents, 20 hours in total. This is in addition to all the attendances on counsel obviously and opponents and attending on the client, i.e. the Inspector, to find out what went on. That does seem to me to be quite a lot of hours. So far as your fees are concerned, the skeleton argument was a very long and detailed skeleton argument, very helpful, and I quite understand that aspect of it, but it does seem to me that quite a lot of people seem to be inventing the weave (?), maybe two, the Treasury Solicitor and you.

MR MAURICI: My Lord, I will be corrected from behind if I am wrong, but the majority of the work on the documents would have been the advice prepared by Treasury Solicitors to the Planning Inspectorate in relation to this matter. That obviously would have involved having to read through all the documents that Mr Cox has provided and producing a written advice, and my Lord will have seen that the consequence is that although I gave some separate advice, that is only a very small amount of the fees because effectively all the work done in relation to the written advice has been done by Treasury Solicitors under work done on documents for those reasons, so that does explain the 20 hours. I would say that 20 hours for the written advice and all other work on documents is not an unreasonable amount of time to spend. My Lord, your Lordship has been able to dispose of the case in a relatively short time but nevertheless the relevant work had to be broken down and therefore I say 20 hours is a reasonable period of time.

MR JUSTICE SULLIVAN: I can understand if you had had somebody who had not dealt with Henry Boot at first instance you might have spent more time explaining what it was about.

MR MAURICI: Yes, my Lord.

MR JUSTICE SULLIVAN: Yes. I have heard what you say about that.

MR MAURICI: My Lord, it is not really comparable, but Mr Cox did compare his own schedule of costs.

MR JUSTICE SULLIVAN: I have not seen that at all.

MR MAURICI: Obviously Mr Cox is acting in person so I cannot use it as a direct comparison, but Mr Cox's hours spent on the case go into the hundreds of hours. My Lord, obviously one cannot use this as a direct comparison, but 20 hours, in the light of that, I say looks even more reasonable.

MR JUSTICE SULLIVAN: Yes. Thank you very much.

I am satisfied that the claimant ought to pay the first defendant's costs and that the costs ought to be summarily assessed. What I am going to do in response to these costs is to summarily assess them in the round sum of £5,000. I do that not because I intend to be in any way critical, but it does seem to me that one does have to adopt a proportionate approach and there is quite a substantial fee in here for preparing the skeleton argument, which is in my judgment entirely justified because it was a very substantial document, but to have on top of that 20 hours for preparing documents is possibly just a bit on the high side, so rather than £5,682.75 I round it down to £5,000, which I think is a reasonable proportionate amount for something that was slightly heavier than the usual run of these sort of challenges to decision letters. So £5,000 costs, I am afraid, Mr Cox.

MR COX: Would you consider making an order that it were not to be enforced without the leave of the court in view of my difficult financial situation?

MR JUSTICE SULLIVAN: I am afraid I do not have any information about your difficult financial situation, Mr Cox. I would not normally make such an order. Matters of enforcement are really matters for another discretion as to how the Treasury Solicitor goes about it. The position is if people cannot pay then they can ask for further time and so on and so forth, but that really comes at the later stage.

MR COX: I was thinking that I am on benefits. Although I am not legally aided, I do receive benefit, incapacity support, and that makes it difficult obviously.

MR JUSTICE SULLIVAN: Right. The Treasury Solicitor cannot get blood out of a stone, you can be reassured about that, so it is a question of he will apply, you will set out your position and if you have to make further applications for, say, time to pay or pay in instalments or whatever, they will be considered through the further machinery, the enforcement machinery.

I think, Mr Cox, in fairness to you I ought to say that if you want permission to appeal, I am not encouraging you, but you should ask me. It may seem a little silly, if you do ask for it I shall refuse it, but at least you will have asked and been refused so you can then go to the Court of Appeal if you want to. You may think that you have heard enough and that is the end of the matter really.

MR COX: There were one or two points in your judgment that I felt were incorrect, but I am not at all sure that they are enough to raise an appeal on.

MR JUSTICE SULLIVAN: Which would just mount up more costs.

MR COX: As you are the expert in planning I think I may well accept your decision as being the final one, sir.

MR JUSTICE SULLIVAN: All right then, I will take that as not an application for permission to appeal.

MR MAURICI: My Lord, thank you for the detailed way in which you have given judgment and done so so quickly, it is appreciated.

MR JUSTICE SULLIVAN: Thank you very much.