Wandsworth Borough Council, R (on the application of) v Secretary of State for Transportation Local Government and the Regions & Anor

MR JUSTICE SULLIVAN: This is a challenge by the claimant local planning authority to an inspector's decision to quash an enforcement notice served by the authority upon the interested party. The enforcement notice alleged that the interested party had erected a telecommunications mast in breach of planning control because it exceeded the 15 metre height limit upon masts that can be erected as permitted development under the Town and Country (General Permitted Development) Order 1995.

Part 24 of Schedule 2 to the 1995 order grants planning permission for certain forms of telecommunications equipment including, subject to various conditions, masts of the kind with which this case is concerned. Condition A.1 of Part 24 states that -

In due course the council brought enforcement proceedings against the development on the basis that it was not covered by the prior determination because it exceeded 15 metres high. The council issued an enforcement notice on 22 May. The enforcement notice alleged that the mast was detrimental to metropolitan open land and to land in the vicinity. The interested party appealed against the enforcement notice. An inspector was appointed to determine the appeal which was dealt with by way of written representations. The inspector determined the appeal in a decision letter dated 1 February 2002. He noted that the appeal was proceeding on grounds (a), (c) and (g) in Section 174 (2) of the Town and Country Planning Act 1990 ("the Act"). Under ground (c) it was contended that the matters alleged in the notice did not constitute a breach of planning control. The decision letter is, on its face, simply concerned with the appeal on ground (c). In paragraph 1 of the decision letter the inspector referred to paragraph 24 of schedule 2 and to the determination of 9 October 1997. In paragraph 2 he referred to the facts that the 15-metre monopole mast had been erected upon a plinth and that a headframe supported the antennae. The council contended that as a result of these two matters the 15-metre height limit was exceeded. The inspector rejected the council's contentions in respect of the plinth but accepted them in respect of the headframe.

In the final sentence of paragraph 11 of his decision letter the inspector said:

The inspector set out his conclusions in paragraph 16:

It will be noted that the decision letter does not purport to deal with the appeal that had been made on ground (a). That was unnecessary if the enforcement notice was quashed on ground (c). Nor was there any consideration of the deemed application for planning permission. No planning permission for the retention of the mast was granted. The claimant challenged the inspector's decision in a claim form under CPR Part 8 received in the Administrative Court Office on 14 March 2002. The claim form said this:

The first paragraph of the grounds of appeal and skeleton argument said:

The grounds then set out the factual background to the claim and contended that the inspector's decision was wrong in law for two reasons. First, in summary, that the inspector had misdirected himself in law as to the meaning of "determination" given what was said in the application about the overall height of the structure and the fact the plans expressly said that they were not to be scaled. Secondly, it was said:

In subsequent correspondence both the Treasury Solicitor, on behalf of the first defendant, and the interested party's solicitors drew the council's solicitors' attention to their view that the challenge should have been made under Section 289 of the Act rather than Section 288. Applications under Section 288 must be made within six weeks of the decision letter. The court has no power to extend that period. This application was made within the period of six weeks from the inspector's decision letter. Appeals under Section 289 require permission. An application for permission to appeal must be made within 28 days of the decision letter, but the Court has power to extend time for making such an application under Section 289 (6). The fact that an appeal against an enforcement notice may be made on ground (a) - that planning permission should be granted - and that there is a deemed application for planning permission, both of which may result in a grant of planning permission, is not infrequently a source of some confusion for local planning authorities wishing to challenge adverse inspectors' decisions in enforcement notice cases. In my experience they are frequently unclear as to whether to challenge such decision letters under Section 288, Section 289 or both. The correct answer in such cases is, in my judgment, both. But it is unnecessary to resolve that issue on the facts of the present case. Here it is plain that the inspector did not even consider, much less did he decide, the appeal under ground (a). Nor did he even refer to the deemed application for planning permission. He quashed the enforcement notice purportedly under ground (c) and ground (c) alone. Thus the council's challenge should have been made under Section 289 and not Section 288. Apart from altering 8 to 9 in paragraph 1 of the grounds of appeal, minimal and purely formal amendments would be required in order to convert the application into an application for permission to appeal under Section 289. It is important to recognise that no alterations of substance would be required. Unfortunately, the council's solicitors did not take the hint following the correspondence from the Treasury Solicitor and the interested party, and simply seek permission to amend. There seems to have been a degree of amour propre on their part in attempting to defend the decision to proceed under Section 288 rather than Section 289. But, in any event, in a supplementary skeleton argument dated 13 June it was made plain on behalf of the council that, if necessary, permission would be sought to amend and for the necessary extension of time - 14 days.

The other event of consequence which should be mentioned as part of this chronology is the decision of the House of Lords in R v East Sussex County Council ex parte Reprotech (Pebsham) and Another. Their Lordships' speeches were published on 28 February 2002 and are now reported in [2002] 4 All ER 58. In Reprotech the House of Lords had to consider the extent to which estoppel could operate so as to prevent a local planning authority from carrying out a statutory duty. Having reviewed the authorities, Lord Hoffmann, with whom the remainder of their Lordships agreed, said in paragraph 29 of his speech:

He then considered the cases of Wells v Minister of Housing and Local Government [1967] 2 All ER 1041 and Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204. In paragraph 33 of his speech he said:

Having referred to the conflicting judgments in Wells and also to the decision in Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222, he said in paragraph 35:

Lord Mackay in paragraph 6 of his speech expressly agreed with Lord Hoffmann that:

The matter came before me for directions in June because the parties were contending that it would be a sensible use of the court's time to occupy an entire day dealing with the procedural issue: whether the appeal should have been made under Section 288 or Section 289 and, if the latter, whether time should be extended. I gave the following directions:

In the light of that direction I confidently expected that with a degree of common sense all round a consent order would be prepared granting the necessary extension of time for an appeal to be made under Section 289, quashing the inspector's decision, and remitting the matter to him for re- determination. Had that course been taken then it is probable the matter could have been re-determined by now. Sadly, my confidence was misplaced, common sense did not prevail and the parties have chosen to subject themselves to the costs and delays of today's hearing. On behalf of the Secretary of State Miss Davies opposed the application by Dr Wolfe to extend time under Section 289 (6) notwithstanding the fact that it became clear during the course of her submissions that if an extension of time was granted the Secretary of State would be conceding that there was no ground upon which the inspector's decision letter could be defended. On behalf of the interested party Mr Roots QC did not so concede.

It is convenient therefore to consider at the outset the merits of the council's challenge to the inspector's decision because, save in cases of significant delay or where there is significant hardship or prejudice, it will almost always be sensible to consider an application for an extension of time in the context of at least a preliminary assessment of the merits of the substantive case which the would-be appellant seeks permission to advance. In the light of the House of Lords' decision in Reprotech, I have no doubt whatsoever that the Secretary of State was entirely correct to concede that the approach set out in the inspector's decision letter could not be defended. Quite apart from the House of Lords' decision in Reprotech, there is the further problem which is identified in Dr Wolfe's skeleton argument on behalf of the council, that is to say, the inspector purported to allow the appeal on ground (c). Under ground (c) an appeal succeeds if there has been no breach of planning control but the inspector expressly found, and his finding is not challenged, that there had been a breach of planning control because the apparatus, that is to say, the mast together with the headframe, did exceed 15 metres in height. Appeals against enforcement notices are dealt with in a comprehensive statutory code, and if one follows the approach of the House of Lords in Reprotech, there cannot be any extra-statutory jurisdiction to allow an appeal simply on the ground of estoppel.

Considerations relevant to estoppel might well form part of a decision to allow an appeal on the planning merits under ground (a). But, as I have said, it is plain from the decision letter that that was not the basis of this decision.

Thus for these two reasons - (a) the House of Lords' decision in Reprotech and (b) the basis upon which appeals can lawfully be allowed under ground (c) - it is plain, subject to Mr Roots' submissions to which I now turn, that this decision letter must be quashed.

On behalf of the interested party Mr Roots submitted, first, that the inspector could have reached the same decision without reference to estoppel upon the basis that the council in its determination must be taken to have decided, as a question of fact, that the headframe formed part of the antennae rather than the mast, and so did not count against the 15 metre height limit. Secondly, that in any event the inspector in concluding that there was an estoppel relied upon the "first exception" in Western Fish which survives notwithstanding the House of Lords' decision in Reprotech. In Western Fish the Court of Appeal recognised two exceptions to the general rule that a statutory body could not be estopped from performing its statutory duties. The first exception was where a local planning authority delegated to its officers power to determine specific questions. Any decisions they make cannot be revoked. Megaw LJ, giving the judgment of the Court said on page 219 that "This kind of estoppel, if it be estoppel at all, is akin to res judicata." Thirdly, that in any event if one applied public law principles of legitimate expectation to the facts found by the Inspector the same conclusion would be reached - there had been a lawful promise and it would be most unfair now to allow the council to resile from it.

Those arguments, cogently though they were advanced, are of no avail to the interested party because, whether he might have been able to reach the same conclusion by a different route, the fact remains that the inspector did not adopt the approach referred to in Mr Roots' ground 1, and make the necessary findings of fact, in order to reach his decision. That is not surprising because the argument advanced by Mr Roots was not advanced in the representations before the inspector. Indeed, it was not even foreshadowed in the interested party's skeleton argument, and was advanced for the first time by Mr Roots in his submissions before me. The Inspector was invited to, and did rely squarely upon, estoppel.

I do not accept the proposition that the first exception in Western Fish survives Reprotech. Mr Roots submitted that the House of Lords did not expressly overrule Western Fish. I have set out the relevant passages above. In my judgment the House of Lords could not have made it more plain that estoppel no longer has any place in planning law. The observations of Lord Hoffmann and Lord Mackay apply with equal force to a "kind of estoppel [that] is akin to res judicata." If a matter is res judicata there is no need for an estoppel, if it is not there is no longer any scope for estoppels which are akin to res judicata. The Inspector decided the matter on the basis of estoppel by representation, not res judicata. In any event he did not simply rely upon the first exception in Western Fish. He relied also upon estoppel by convention and, perhaps more importantly, he relied upon what he saw as the basic principle of estoppel, namely that a person who, by some statement or representation of fact, causes another to act to his detriment in reliance on the truth of it is not allowed to deny it later even though it is wrong. It is readily understandable that as at 1 February 2002 the inspector should have thought that such a basic principle was of general application in the field of planning law: The House of Lords in its decision in Reprotech has made it plain that it is not.

Turning to the proposition that the same decision could be reached by applying public law principles of legitimate expectation, I accept it is entirely possible that the same decision might be reached. But it is plain from the decision of the Court of Appeal in Henry Boot Homes v Bassetlaw District Council [2002] EWCA.Civ 983 that the circumstances in which it will be appropriate to find a legitimate expectation in the planning field are limited, and the decision taker is engaged in a task that is very different from an attempt to decide whether or not there is an estoppel in private law. That task, for reasons which are obvious, was not conducted by the inspector. The proper course is not for this court to conduct that exercise - it is not the primary fact finder - but for the inspector's decision to be quashed so that this, and the other submissions now made by Mr Roots can be considered by an inspector who can make the necessary findings of fact. Mr Roots submitted that there was no evidence from the council to explain what harm was done by the mast. As I have mentioned, the enforcement notice contended that the mast was detrimental to metropolitan open land and to land in the vicinity. Whether or not that is so is a matter which can be considered when the ground (a) appeal comes to be looked at by an inspector. This inspector expressed no view whatsoever about the planning merits of the appeal.

Against this background I turn to whether it would be right to extend time under Sectio289 (6). Although it is submitted on behalf of the Secretary of State that the delay is a significant one, I do not accept that submission. The delay is approximately two weeks. There may well be circumstances in which even such a relatively short delay may be significant, for example, because the parties may have changed their positions on the strength of a belief that an enforcement notice had been quashed. But no such considerations arise in the present case. Indeed the main thrust of the Secretary of State's case on delay appeared to be that because the delay was due to an error on the part of the council's solicitors in choosing the Section 288 route rather than the Section 289 route, this, in some way, reinforced his argument that an extension of time should not be granted. I respectfully disagree. There is no question here of delay being used as part of a deliberate attempt to string out proceedings. The error is not an infrequent one and it is understandable given the lack of clarity in the Act.

Miss Davies referred me to two authorities. In the case of Antoniades and Others v Secretary of State for the Environment Transport and the Regions [1999] EWHC.Admin 55 (transcript dated 25 January 1990) Mr Nigel Macleod QC, sitting as a Deputy Judge of the Queen's Bench Division, said, when refusing an application for permission to appeal under Section 289 and for an extension of time in which to do so,

Ynys Mon was relied upon by Miss Davies and Mr Roots, both of whom submitted that the present case was on all-fours with it. In Ynys Mon a local authority wished to challenge an inspector's decision quashing a number of its enforcement notices. The council's solicitor wrongly believed that the time limit for making such a challenge was the six-week period prescribed by Section 288 rather than the four-week period prescribed by Section 289. The application for permission to appeal under Section 289 was made one day late. Mr Justice Rose, as he then was, refused the application to extend time. Both Miss Davies and Mr Roots drew attention to this passage in his reasoning (emphasis added):

I say that one should exercise caution before seeking to extract any point of general principle from that case for these reasons. Mr Justice Rose made it plain that the case turned upon its own particular facts. Indeed, he said in terms:

What were the factors which caused him to depart from the ordinary way? The answer is to be found in the particular circumstances of the respondents to the appeal:

That, in my judgment, is very far from the facts of the present case. It will be noted that in that case Mr Justice Rose considered that the prejudice was so great that it was unnecessary for him to give any consideration, even in a preliminary way, to the merits of the substantive application. Thus, he was not refusing to extend time in a case where either the Secretary of State had conceded, or he had concluded, that it was at least arguable that the decision letter was not defensible as a matter of law. Whilst the decision is readily understandable upon its particular facts it must be borne in mind that decisions on enforcement notices are not to be equated with private litigation between the local planning authority, the Secretary of State and the appellant against the enforcement notice. The public interest is engaged. It is in the public interest that if a Secretary of State's decision on an appeal is erroneous in law, that error should be corrected. That is a factor which should always be borne in mind and it may well be that it will override any conclusion that an error on the part of legal advisers should be penalised.

The delay here was of short duration. There is no suggestion that it has caused any prejudice whatsoever. No party has altered his position in reliance upon the decision. It is plain for the reasons I have given that the inspector's decision proceeded on an entirely erroneous basis in the light of the House of Lords' decision in Reprotech. I would wish to make it clear that this is not intended as any criticism of the inspector. He faithfully responded to the representations which were put to him. It is understandable the case proceeded in the way that it did prior to Reprotech, but, post-Reprotech, it simply cannot stand.

For these reasons I extend time for the council to appeal under Section 289. I permit the necessary formal amendments to the claim form so that it is an appeal under Section 289. I allow that appeal and remit the matter to the Secretary of State for reconsideration.

DR WOLFE: I am obliged. There are two points in your judgment that may need assistance. I think your Lordship inadvertently said the delay here was four weeks; I think it should be two.

MR JUSTICE SULLIVAN: It certainly should be two, yes, I am sorry. I would welcome corrections. The paper work has not been entirely easy to assemble in a coherent way. What is the other one?

DR WOLFE: The second one is a reference for Antoniades. It has a neutral citation; it is [1999] EWHC.Admin 55.

MR JUSTICE SULLIVAN: Would the shorthand writer put that in?

DR WOLFE: The next thing is that the order your Lordship contemplated allowed the appeal but omitted - I am not sure if it matters - formal granting of permission to bring the appeal. It may be your Lordship may see that as implicit.

MR JUSTICE SULLIVAN: I grant you an extension of time to make the application. I give you permission to bring the appeal and I allow the appeal.

DR WOLFE: Finally, the question of costs: we seek our costs. We invite you to conduct a summary assessment. The necessary schedules have been served on the Secretary of State. I hand up a copy, and apologise for the handwritten amendments. They fall into two categories; one is to reflect the fact that this hearing has been shorter than predicted so that reduces the bill slightly, and the second is to reflect the fact we have inadvertently claimed VAT which we are not allowed to do because we are a local authority. So that reduces the bottom line figure to £10,106.10. We invite your Lordship to assess in that figure.

MR JUSTICE SULLIVAN: Does this include all of your costs or does it include the costs after, for example, the time when you sought permission to amend?

DR WOLFE: It includes all of our costs.

MR JUSTICE SULLIVAN: What do you want to say about that, Miss Davies?

MISS DAVIES: The first point is this that so far as the substantial merits of the case are concerned, your Lordship is aware that the Secretary of State did not oppose the claim on that ground. I would say some of the costs of today's hearing and preparation for today are not attributable to the Secretary of State but attributable to the interested party. It would not be just for the Secretary of State to bear that element of costs.

PRESIDENT: The Secretary of State did not concede. Until I asked you he was adopting a neutral stance.

MISS DAVIES: That is right.

MR JUSTICE SULLIVAN: Anyway, you think Mr Roots' clients ought to pay some.

MISS DAVIES: I do. So far as the Section 288/Section 289 point is concerned, that was a matter not conceded by the claimant despite the direction to which you referred. It was a matter that was drawn to the claimant's attention by the Treasury Solicitor as long ago as April. It is a matter of some importance that these matters are brought by the correct procedure. It is an issue which formed a significant part of my skeleton argument and submissions, a significant part of the reasons why the Secretary of State was here today and it is an issue on which the Secretary of State has succeeded. I say there should be a deduction from my learned friend's costs to take into account the costs of that element and to take into account the Secretary of State's costs of arguing that point. So far as extension of time is concerned, I make this point. The claimant would have to apply for permission to extend time in any event. In terms of the actual costs of that application they must be very limited insofar as they can be attributable to the Secretary of State. I would invite your Lordship to make a deduction in respect of the amount of costs the Secretary of State should pay. There are the two elements there: first, the substantive merits which should fall more properly on the interested party and, secondly, the matters on which the Secretary of State has succeeded and should enjoy some more reduction.

MR JUSTICE SULLIVAN: Anything else?

MISS DAVIES: No.

MR JUSTICE SULLIVAN: Mr Roots, if I do not rise to the bait and order your clients to pay some part of the claimant's costs, are you lying doggo about costs?

MR ROOTS: I would say the first defendant had to appear here to prevent the quashing of something taken in his name. I realise I have contributed to some of the argument your Lordship has had to address.

MR JUSTICE SULLIVAN: I am not at the moment minded to order your clients to pay half the costs. It seems to me it is up to the Secretary of State expressly to concede rather than simply say they are neutral. On the basis that I am not ordering you to pay any costs are you lying doggo and not making any application about that, keeping your head down below the parapet?

MR ROOTS: On the subject of costs I am keeping my head below the parapet. I will deal with other matters.

MR JUSTICE SULLIVAN: I will let you keep your head below the parapet on costs. Dr Wolfe, the only thing that concerns me about the application for costs is this: I take the view that after my direction on 24 June the writing should have been on the wall for the Secretary of State. Whatever procedural shenanigans were going on prior to that about Section 288 and Section 289 and so on it should have been perfectly obvious that there should have been a consent order dealing with necessary procedural matters instead of quashing the letter and getting on with re-determining the matter. I am concerned that it is my firm view notwithstanding the propositions in your skeleton argument that it was wrong to go on Section 288 initially, it should have been Section 289. I do not see why the Secretary of State should pay for argy-bargy about that. That is why I asked whether this is the total. Subject to submissions you want to make about principle, is it possible for you to give an indication or break down of what costs were incurred up to around about 24 June?

DR WOLFE: It may be possible but it would take a few moments. Can I deal with a point of principle? We could have made an application to extend time at an earlier date but it is clear that even if we had done so it would not have changed the course of events at all. It is not a question of slicing the time period and saying "prior to this date" and "after that date". I accept that court time and other parties' costs have been incurred because we argued that we were entitled to Section 288. That is not a question of time, that is not a period of time in terms of whether it is January to June or January to anything else. It is merely a chunk of argument. In my submission when one looks at the time taken by Miss Davies dealing with that - in her skeleton and in the court - it is a very small proportion of the total effort involved in the case. It would be wrong, in principle, to say we are disentitled prior to your Lordship's order in June. It may be right in principle to say we are disentitled to the costs occasioned by that limited and, in my submission, tiny part of the argument but it is much smaller and not one that can be apportioned by looking at dates and times. Your Lordship must look at the arguments and say "It is X per cent of the Secretary of State's efforts to deal with that." In my submission the "X" would be a very small figure because the Secretary of State has simply asserted, and your Lordship accepted very quickly, that that was a bad argument. The majority of the Secretary of State's evidence went into the question of extending time and prejudice, all other matters on the case itself. In my submission, if any discount it should be tied in on that basis.

MR JUSTICE SULLIVAN: I do not think I shall ask for precise figures. I think in the light of all the submissions I have heard the sensible thing to do is to assess the costs in the round sum of £9,000; that is a relatively modest deduction to deal with the general waste of time and so forth caused by argument on Section 288 and Section 289. Subject to that very modest deduction I assess the costs in the sum of £9,000. You said you had an application, Mr Roots.

MR ROOTS: I am instructed to seek leave to appeal, not on all the grounds I argued before your Lordship but on the first two; in particular, that my clients are entitled to take the point that the Secretary of State's decision was right in effect, in that there was no breach of planning control because of the interpretation of the determination the council had made. That is simply a question of law. Your Lordship put to me, rightly, that it had not been argued that way in the written representation. But in my submission my clients are entitled to take it as a point of law at this stage. I link with that my point that the first limb of Western Fish is really a res judicata point. The two really go together, that the effect of determination is that the development carried out in compliance with it is not a breach of planning control. That is my point.

MR JUSTICE SULLIVAN: Thank you. I do not think it would be appropriate to give you permission. I do not think there is a reasonable prospect of success on those arguments. I do not think any wider principle is raised, not least of course because they can all be raised again in front of the inspector who can make factual findings in relation to them.