Belfields Ltd v Sefton Metropolitan Borough Council

Belfietds objected to the inclusion of the site within the scope of the CPO on the basis that it wanted to develop the site itself, As a result of this objection as well as others, there was a public enquiry which took place between July and November 2006 following which the Secretary of State adopted the recommendations contained in the inspector's report and confirmed the CPO. Notice of the confirmed CPO was published on 1 4^th June 2007. A statutory appeal was commenced by Belfields which was dismissed on 21 ^st December 2007. On 28^th March 2008, Sefton purported to make a General Vesting Declaration giving effect to the CPO in relation to the site. An application for permission to appeal from the dismissal of the statutory appeal was made to the Court of Appeal and rejected following an oral hearing on 30^th April 2008,

On 22^nd April 2008, the Chancery claim I am concerned with was commenced (the chancery proceedings). In the chancery proceedings Belfields claim that Sefton is estopped from vesting the site in itself pursuant to the CPO and seek in consequence an order setting aside a General Vesting Declaration. The chancery proceedings are defended on a number of different grounds but the overarching defence is that estoppel is not available in private proceedings brought against a public authority exercising statutory powers duties or discretions at any rate where they arise in planning law following the decision of the House of Lords in R Re rotech Persham Limited v. East Sussex Count Council [2002] UKHL 8 [2003] 1 WLR 348 and the subsequent Court of Appeal decision in South Bucks District Council v. Flanagan [2002] EWCA Civ 690 and that the only basis upon which Belfields can claim the relief it claims is by reference to the public law doctrine of legitimate expectation, Belfields deny that this is so, contending that the code under which the General Vesting Declaration (GVD) was made does not form part of planning law as that phrase is to be understood where and when it is used in the cases relied on by Sefton and that the respective rights and obligations of the parties affected by a GVD are to be determined exclusively by reference to the private law concepts of contract estoppel and allied doctrines.

On 26^th June 2008, Belfietds commenced the judicial review proceedings now before me (the JR proceedings) seeking a quashing order based in essence upon the same factual allegations as are made in the chancery proceedings but advanced as giving rise to a legitimate expectation that the GVD would not be made in the circumstances that have arisen. These proceedings were commenced in case it was concluded that Sefton's over arching defence to the chancery proceedings succeeded. It was recognised as obviously appropriate that the JR and Chancery proceedings should be heard together and arrangements were made for the application for permission to bring the JR proceedings and the JR proceedings themselves if permission was granted to be heard by me concurrently with the trial of the chancery proceedings because I am authorised to sit in the Administrative Court as well as in the Chancery Division.

As will be apparent from what I have said so far, if Sefton is correct in its overarching defence then the chancery proceedings ought to be struck out or dismissed without

Very unfortunately, Mr John Costello, the sole director and principal shareholder of Belfieldst was admitted to hospital shortly before the commencement of the trial. This caused Mr Elleray QC to apply on behalf of Belfields at the commencement of the trial for an order vacating the trial date. In making that application he submitted that the overarching defence to the chancery proceedings was something that could and should be determined in any event as a preliminary issue and he also accepted that the JR proceedings could and should be determined in the event I concluded that the overarching defence to the chancery proceedings succeeded. Ms Patterson QC for Sefton opposed the application and maintained the position that there should be a single trial of all issues and that the trial should proceed in the absence of Mr Costello. Ms Patterson submitted that if I concluded that the trial could not proceed, then she too wished the overarching defence to the chancery proceedings to be determined as a preliminary issue and the JR proceedings determined as well in the event that I concluded that Sefton's over arching defence to the chancery proceedings should succeed.

acceded to Mr Elleray's application because I could not see how a trial could fairly proceed in the absence of Mr Costello when he was the sole source of instructions on behalf of Belfields, that this was likely to be of more than usual importance where as here the trial had come on with extreme expedition and also because Sefton could not agree his witness statement. However, I directed that the over arching defence to the chancery proceedings should be determined as a preliminary issue and that the judicial review proceedings should also be determined in the event that I concluded that the over arching defence to the chancery proceedings succeeded. Mr Elleray asked for some time in which to prepare on the revised basis since he had not anticipated having to address these issues so early in the trial window. Ms Patterson was content for this approach to be adopted and in the end the hearing of preliminary issue in the chancery proceedings and the judicial review proceedings took place between the dates referred to above.

I am thus concerned with three matters only:

It is common ground that the success or otherwise of the over arching defence to the chancery proceedings is to be determined on the assumption that Belfietds' case on the facts as pleaded is correct. I set out those facts below. Nothing I say should be construed as a finding that what is alleged by Belfields is correct factually. Whether that is so or not can only be determined following a trial.

Belfietds' case on the facts is pleaded at paragraphs 6-18 of the Particulars of Claim. In summary, Belfields' case is that it was aware of the development potential of the site and with that in mind it appointed a firm of architects, CRL, to act on its behalf to design a redevelopment scheme for the site. Given its interest, Belfields say that it by its architects sought and received an assurance that Sefton would not compulsorily purchase the site if Belfields embarked upon a redevelopment scheme on the site for which it had obtained relevant planning consents, The assurance relied on is contained in an e mail from Mr Alan Lunt, a senior official employed by Sefton, to Mr Apollo Leong of CRL dated 6 July 2005. In so far as is material, that e mail was to the following effect:

Having set out the factual basis of Belfields' claim in the chancery proceedings, I now turn to the statutory background.

Section 226 and Section 227 of the Town and Country Planning Act 1990 provide that:

As is apparent from Section 226(7) of the 1990 Act, the Acquisition of Land Act 1981 applies to the compulsory purchase of land pursuant to Section 226. By Section 1(1 )(a) of that Act:

Once the procedures set out in the 1990 and 1981 Acts have been exhausted, and assuming that the CPO has been confirmed and any appeals dismissed (as was the position here), then the council must next proceed (if it wishes to proceed at all) by reference to the powers conferred by the Compulsory Purchase (Vesting Declarations) Act 1981 (VDA). It is Mr Elleray's argument that public law ceases to be relevant once the procedures set out in the 1990 and 1981 acts have been exhausted and that the rights and obligations of the parties are thereafter exclusively the subject of private civil law. He says that such is the position in relation to purchases being undertaken pursuant to Section 227 of the 1990 Act and that is exactly the same position that applies in relation to a compulsory purchase order that is being given effect to pursuant to the VDA.

The scheme of the VDA involves the publication of preliminary notices (Section 3), the execution of a GVD (Section 4) and the service of post GVD execution notices (Section 6). Section 4(1) of the VDA provides that

Mr Elleray identified Section 4 of the VDA as conferring a discretion on the acquiring authority whether to proceed with the execution of a GVD or not. In my judgment this is plainly correct and not disputed. Mr Elleray submitted that it was this discretion that entitled an acquiring authority to waive the right to execute a GVD or limit the circumstances in which a GVD would be executed. Ms Patterson accepted that there was a power to act as Mr Elleray suggested although her submission was that the discretion resulting from the use of the word "may" in Section 4 (which if read in isolation might be thought to create an unqualified discretion) but was to be read subject to Section 1 11(1) of the Local Government Act 1972 which provides:

Against that statutory background I now turn to the submissions of the parties.

In support of its case Sefton relies principally on R (Reprotech (Pebsham) Limited) v. East Sussex County Council [2002] UKHL 8 [2003] 1 WLR 348 (Reprotech). That case was concerned with the degree to which if at all Reprotech was entitled to rely on assurances given by a local authority official that a particular proposed change of use did not require an application to be made under the then applicable provisions of the 1990 Act. The House of Lords held (overturning the Judge and the Court of Appeal) that there was no material on which it could be said that the local authority were estopped from asserting that a change of use application had to be made. It follows as was common ground between the parties before me that the comments made in the speeches in the House of Lords concerning the rote of estoppel in public law contexts was strictly speaking obiter. It was but it is obiter of the highest authority and worthy of the most serious respect. The leading opinion was that of Lord Hoffmann with whom the other members of the House present agreed. In the course of his speech Lord Hoffmann said at paragraphs 28-29:

In my judgment Ms Patterson is correct in these submissions. In Flanagan v. South Bucks QC [2002] EWCA Civ. 690, the Court of Appeal was concerned with a decision of HH Judge Parry sitting at Slough County Court in which he had held that the local authority were estopped from enforcing certain planning notices that purported to restrict the use of some land at Farnham Royal for the storage of vehicles, scrap metal building materials and other similar items. It is submitted that this was not a case that was concerned with "the public law of planning control, which binds everyone" but rather with the enforcement of planning control. Before the Court of Appeal, counsel for the Appellants did not seek to uphold the decision of the county court judge on the basis of estoppel because it was conceded that . estoppel by representation really no longer has any part to play in planning law ... One is here in the realm of public law. That has now been emphasised by the House of Lords' decision in [Reprotech] where Lord Hoffmann, with whom the other members of the house agreed, said that . it is unhelpful to introduce private law concepts of estoppel into planning law" — see Keene LJ at Paragraph 16. Keene LJ continued:

Whilst I accept that the public have an interest in planning authorities enforcing planning controls, do not see that the public interest identified by Lord Hoffmann in paragraph 29 of his speech in Reprotech arises in the same way in a case such as Flanagan. This suggests that Lord Hoffmann's approach is not to be applied restrictively and that the Court of Appeal did not do so in Flanagan .ln my view this approach is also supported by the decision of Sullivan J in R (Wandsworth BC) v. SSTLGR [2003] EWHC 622 (Admin), a case which concerned a challenge by a local authority to an inspector's decision to quash an enforcement notice by which it was alleged that a telecoms mast had been erected in breach of planning control. The inspector had concluded that the council was estopped from asserting the breach by reason of the terms of a prior approval notice. 'n quashing the decision, Sullivan J referred extensively to Reprotech and then said at Paragraph 21 of his judgment " In my judgment the House of Lords could not have made it more plain that estoppel no longer has any place in planning law". In my judgment it is plain that Sullivan J was using the phrase "planning law" in a much wider way that Mr Elleray would wish me to adopt. The implication of Sullivan J's judgment is clearly that if a party wishes to assert that a planning authority is to be precluded from relying on its statutory powers, then it must do so by relying on an asserted legitimate expectation and not by attempting to set up an estoppel when faced with enforcement proceedings.

Notwithstanding the points so far considered, Mr Elleray points to a wide selection of other Acts which incorporate the 1981 Act which he submits cannot be said to relate to planning law. It therefore follows, he submits, that the VDA cannot be regarded as part of planning law as that phrase is used in the cases to which I have so far referred. Ms Patterson submits that it is simply not open to Mr Elleray to argue that steps taken pursuant to the VDA do not come within the scope of planning law. In my judgment, Ms Patterson is correct in her submissions on this point. It is artificial to attempt to divorce the carrying into effect of a CPO made pursuant to what is unquestionably planning law (the application of Section 226 of the 1990 Act as amended) from the making and subsequent confirmation of the CPO. In my view Ms Patterson is correct when she says that her submission on this point is amply supported by the long title to the 1981 Act namely "an act to consolidate the provisions of the Town and Country Planning Act 1968 concerning general vesting declarations and related enactments". The procedure contained in the 1981 Act was first introduced by Section 30 of the Town and Country Planning Act 1968 and was extended and re-enacted by the 1981 Act. Mr Elleray's point might be arguable if advanced by reference to a CPO made pursuant to legislation other than the 1990 Act but that issue does not arise in this case and I do not have to decide that point. In my judgment it is not arguable by reference to a CPO made pursuant to the Town and County Planning Act 1990 .

Ms Patterson's submission based on this triumvirate of cases to which I have so far referred is that it is simply no longer possible for it to be said that estoppel is available to private land owners as an answer where as here a local authority is exercising its statutory powers for statutory purposes. I agree. In my view the public interest in the making and confirming of CPOs made under those provisions is as much engaged by an attempt by a local authority to give effect to a confirmed CPO (which it has to do using the machinery provided by the VDA) as it is by the decision to make, and the attempt to obtain statutory confirmation of, the CPO. The limits that Mr Elleray seeks to impose are in my judgment artificial, unjustified by principle and in any event fly in the face of the relevant case law being that which I have so far referred to. A rule to the effect contended for by Mr Elleray would be uncertain in its scope in an area in which certainty is important and delay unacceptable and is likely to increase litigation, and the cost of litigation. In my view the phrase "planning law" at it is used in the authorities to which I have referred is to be understood in a wide and inclusive way and certainly as being wide and inclusive enough to apply to a decision by a local authority to give effect to a confirmed CPO, In my judgment this inclusive approach to the use of the expression "planning law" in the cases to which I have so far referred was emphasised by Keene LJ in Henry Boot Homes limited v. Bassetlaw DC [2002] EWCA Civ 983 where at paragraph 52, following a citation of paragraph 29 of Lord Hoffmann's speech in Reprotech he said:" That is very much the nature of town and country planning law. Even more than many areas of public law which concern the individual and a public body, planning law is likely to have to reflect the fact

In the course of his submissions, Mr Elleray suggested that because a local authority could contract under Section 227 it could therefore estop itself in a way which made it amenable to a proprietary estoppel claim. I do not accept this as correct. If a contract is entered into it may well be that the parties rights are to be resolved by reference to the contract but if there is no relevant contract it does not follow that whatever rights the parties have is to be resolved by estoppel as opposed to legitimate expectation. This case is concerned exclusively with the enforcement of a CPO made pursuant to Section 226.

The further submission made by Mr Elferay was that because it was accepted that the local authority could restrict, suspend or prevent the subsequent enforcement of a CPO made pursuant to Section 226 by agreement, it therefore followed that it could do so by estoppel. do not accept this submission either. There is no logical link between one and the other for the reasons I have set out in Paragraph 24 above. At one point Mr Elleray suggested that if this approach was correct then it would follow in an appropriate case that a land owner that contracted with a local authority would not be able to enforce its contractual rights otherwise than in judicial review proceedings. In my view this point is clearly wrong as is the corollary namely that because a landowner in the position of Belfields must be in a position to enforce its contractual rights by seeking specific performance it follows that a land owner must also be able to seek to vindicate its rights by reference to estoppel in ordinary civil proceedings. 'n my judgment this confuses the substantive with the procedural. A contract with a local authority js enforceable as is any other form of contract. Where a private land owner is sued by a local authority in the civil courts for a remedy relating to a planning law issue (as happened in Flanagan) it is open to the land owner to defend himself by reference to the legitimate expectation doctrine but not (as would otherwise be the case) by reference to any of the various types of estoppel — see Flanagan per Keene LJ at Paragraph 17 of his judgment. Where a land owner seeks redress against a locat authority otherwise than by defending a claim of this son, then it is probably more appropriate for such relief to be sought in judicial review proceedings. However, that issue does not arise for consideration in this case because no relief is claimed in the chancery proceedings by reference to legitimate expectation and the only proceedings in which a remedy is sought by reference to that doctrine is in the judicial review proceedings. Nonetheless, Flanagan shows that the availability of estoppel does not depend upon the type of proceedings in which the issue arises,

Aside from the points that I have so far considered and rejected, Mr Elleray maintains that there is authority which pre dates Reprotech and the other cases to which I have referred above which were not either cited to or overruled by the House of Lords. It is submitted that these cases are binding on me and that I should follow them notwithstanding what is said in the three cases to which I have so far referred and even if I come to the conclusion that Ms Patterson is otherwise correct in her submission as to the wide effect of what is said in them.

The first of the cases relied on by Mr Elleray was Simpsons Motor Sales (London) Limited v, Hendon Corporation [1964] AC 1088.This case was concerned with an attempt by a local authority to enforce in October 1958 a CPO made in March 1952. The landowner sought and obtained at first instance an injunction to restrain the local authority from proceedings on the basis of an increase in land values between the two dates I have mentioned. The Court of Appeal reversed the first instance decision and that was upheld by the House of Lords. In reaching that conclusion, Lord Evershed accepted that there might be circumstances where a court could interfere. Those circumstances were defined as being where to permit the local authority to enforce its rights under the CPO would : 'be against good conscience. In order to achieve such a result it seems to me that it would be necessary to show one or both of the following: that there had been on the part of the Corporation, something in the nature of bad faith, some misconduct, some abuse of their powers: that there had been on the part of Simpsons some alteration of their position — something must have been done or not have been done by them on the faith and in the belief that there would be a speedy acquisition of the North road site: in other words, that they had in some sense been put into an unfair position because of the long period which had elapsed since the service of the notice to treat". Mr Elleray submitted that this was House of Lords authority for the proposition that a land owner could on proper facts rely on estoppel in support of an application for an injunction to restrain a local authority from relying on a CPO.

I reject Mr ElleraVs submission. In R v. Carmarthen DC ex parte Blewin Trust Limited (1990) 59 P&CR 379, a decision of Nolan J, the land owner sought a judicial review of a decision by the local authority and in those proceedings sought prohibition. The application was dismissed. That case was decided in 1989. It is worthy of note that whilst Nolan J followed the Simpsons case he did so in the context of an application for judicial review. It is also worthy of note that the case was not argued as a claim framed in estoppel but as a claim framed in what is now the familiar administrative law concept of legitimate expectation - see the summary of the application at 379. This is significant. When the Simpsons case was decided, judicial review as it is now known was unheard of. The concept of legitimate expectation was equally unheard of. Reprotech demonstrates the important role that the common law doctrine of estoppel has had on the development of the law of legitimate expectation. However there is nothing in the speech of Lord Evershed that requires a court in effect to ignore the existence the development of the doctrine of legitimate expectation that has occurred since that case was decided. In my judgment that much is apparent from the approach adopted in the Blewin Trust case.

Two other authorities are relied on as supporting the proposition that a land owner can seek a remedy against a local authority against a local authority exercising statutory powers in reliance upon an estoppel. The first in time is limited v. West Yorkshire MCC (1981) 41 P&CR 179, a decision of Woolf J as he then was. In summary the Salvation Army (SA) owned a hall — the old site — and the 'ocal authority wished to compulsorily purchase the site as part of a road widening scheme. SA entered into negotiation and then let a contract for the development of a new hall in reliance upon these indications. Following a local government reorganisation, the successor authority no longer wished to purchase the old hall. Woolf J held that SA was entitled to maintain a claim against the successor authority and that applying the proprietary estoppel doctrine, the local authority was obliged to buy the old hall. In considering this authority, it is important to note that Woolf J applied Crabb v. Arun DC [1 976] Ch 179 and considered the later case of Western Fish Products limited v. Penwith DC (1978) 38 P&CR 7. On analysis Crabb is a case which was brought against the local authority in its capacity as a private owner of 'and and not in its capacity as a planning authority exercising statutory powers in relation to town and country planning. Western Fish was a land mark decision of the Court of Appeal in which the scope of estoppel in a planning law context was circumscribed. It was that authority which led the House of Lords in Reprotech to decide that estoppel no longer had any role to play in planning law. It is also important to note that Woolf J said that if the case had involved only the old site, he would not have regarded it as appropriate to extend the principles of proprietary estoppel so as to enforce the purchase of the old site. In my view this case does not assist on the issues that I have to decide because it does not relate to a public authority exercising a statutory power in town and country planning context but rather relates to a private arrangement made prior to the exercise of such a power, If and to the extent that this is wrong then in my judgment the case has to be read subject to and treated as impliedly overruled by Reprotech to the extent that it suggests an estoppel may be raised in private law proceedings in relation to the exercise of a planning law statutory discretion. Crabbe provides no support for Belfields case because that case had nothing to do with a local authority exercising its statutory planning law powers in the public interest.

The final case relied on is a decision of Lewison J in LB of Bexlev v. Maison Maurice Limited [2006] EWHC 3192 (Ch). I do not propose to burden this judgment with a lengthy summary of this case because in my judgment it does not assist with the issues that I am now addressing. I say this because as Lewison J said at Paragraph 63 of his judgment.' In my judgment, section 184 did not confer on the council as highway authority the power to construct a crossover over the ransom strip. In its capacity as a land owner, however, it was entitled to authorise the construction of the crossover on its own land". It was on this basis that the Judge went on told hold that the council was estopped. 'n my judgment this case clearly illustrates the existence of the distinction identifiable by comparing and contrasting Reprotech and the cases that followed that decision on the one hand — all of

The opinions of the House of Lords in Yoemans Row Mana ement Limited v. Cobbe [2008] UKHL 55 were handed down on 30^t July 2008. In light of the conclusions that I have reached concerning the estoppel issue, it is not necessary that I comment on those opinions although both parties submitted short supplemental submissions referring to them. It is worth noting that Lord Scott's opinion appears to confirm the view that proprietary estoppel can arise only in relation to land other than that in which the party alleged to have acted detrimentally has an interest* As such it is consistent with what Woolf J said in the (ante) where he said that if the case had involved only the old site, he would not have regarded it as appropriate to extend the principles of proprietary estoppel so as to enforce the purchase of that site. This would provide a reason for concluding that proprietary estoppel is not available to Belfields in the circumstances of this case independently of the reasons identified above. However that point would not apply to the other variants of estoppel relied on and so I remain of the view that the over arching defence to the chancery proceedings succeeds for the reasons set out in the previous paragraphs of this judgment.

It follows from the conclusions I have so far reached that if any relief is to be obtained by Belfields it will have to be obtained by judicial review relying on the doctrine of legitimate expectation. In relation to that application, Ms Patterson submits however that I ought to refuse permission to Belfields to bring the JR proceedings or, if I give permission then the relief sought (a quashing order) ought to be refused.

In relation to the permission issue, it is submitted that permission ought to be refused because (a) the JR proceedings were not started promptly and (b) in any event judicial review based upon alleged legitimate expectation is not available in town and country planning cases or at any rate is not available where a CPO has been confirmed and the statutory appeal process has been exhausted or is available only rarely. In the event that permission is granted then it is submitted that I ought to refuse the relief claimed either because on the facts of this case the conditions applicable to the existence of a legitimate expectation are not satisfied or because the legitimate expectation claimed could not survive the conclusions reached by the Inspector and/or the terms of the confirmation on behalf of the Secretary of State and/or because the council was entitled to conclude that the conditions that applied to the assurance have not been satisfied by Belfields. I turn first to the issues relied on in relation to the contention that I should refuse permission.

Promptness

All these points are valid. However, no specific prejudice or other detriment has been identified by Sefton as resulting from the fact that proceedings were started on 26^th June as opposed to either the 22^nd April or slightly after 12^th May. In those circumstances, and because the proceedings were started within the default limit of 3 months, I am satisfied that the proceedings were started sufficiently promptly in the circumstances.

Availability Of Judicial Review

The basis upon which this submission is advanced is first by reference to a submission that the clear policy of the law is that once the statutory challenges to the CPO have been completed, the law requires that there be finality. In support of this proposition, Sefton relies on R v. Carmarthen DC ex Q. Blewin Trust Limited (ante) where Nolan J at 387 drew attention to this point. However, it seems to me that this submission misses the real point to be derived from Nolan J's judgment which in my judgment is that notwithstanding the policy identified by Nolan J, following the Simpsons case there could be circumstances where a challenge could be mounted by reference to what occurred after the completion of the statutory appeal process. As Nolan J said at 388 I conclude that the applicant's case in law is well founded to the extent that the proposed action of the council can be reviewed on grounds of conscience... Thus I do not accept that there is a legislative policy which bars the application of legitimate expectation in atl cases where a local authority seeks to enforce a confirmed CPO following the exhaustion of the statutory appeal process in breach of an assurance that it would not or would not providing certain conditions were satisfied (whether such assurance was given before or after confirmation of the CPO) providing that otherwise the requirements of the law relating to legitimate expectation are satisfied. If Sefton's submission was correct that would mean that even though a authority had given an assurance not to activate a CPO or not to do so providing certain conditions were met, the authority could change its mind arbitrarily or capriciously in circumstances where the recipient of the assurance had acted irretrievably in reliance upon the assurance and the recipient of the assurance would have no remedy of any sort. In my judgment, that is a wholly unsustainable proposition and is one which did not represent the law even at the time when the Simpsons case was decided. In my judgment this point is emphasised by the limited scope of Section 25 of the 1981 Act which bars the questioning in court proceedings of a confirmed CPO once the statutory appeal process has been exhausted. Here the CPO is not being challenged. It is the decision to enforce it that is being challenged,

It is then submitted that the circumstances in which legitimate expectation could be relied on in a town and country planning case are severely restricted. In support of this proposition, reliance is placed on the statement of Keene LJ in Henry Boot Homes v. Bassetlaw DC (ante) at Paragraph 56, where he said:

The context of what Keene LJ was saying in Henru Boot Homes needs to be noted — his point, which he expands upon at paragraphs 48 and following of his judgment, is that the area of planning law he was concerned with in that case was covered by statute. The issue in that case concerned the degree to which a developer could rely on work done in apparent breach of a planning condition as evidence that a development had been started. Legitimate expectation was relied on as the basis for an entitlement to rely on such activity. However, Section 73 of the TCPA provided a procedure by which a variation or discharge of a planning condition could be applied for. Indeed, Keene LJ makes that point in the two sentences that precede the part of Paragraph 56 of his judgment relied on by Sefton quoted above, where he says: "Mr Lowe invited us to say that legitimate expectation could never operate so as to enable the developer to begin development validly and effectively in breach of condition. I am not prepared to adopt so absolute a proposition". That is not this case. Here, Belfields claim to rely upon an assurance which by its nature could become relevant only once the CPO had become enforceable and Sefton acted in a way that is alleged to be contrary to what is alleged to be Belfields' legitimate expectation, As Nolan J emphasised in Carmarthen DC (ante), once the statutory procedure for challenging a CPO has been exhausted there is no other statutory machinery available to a dissatisfied land owner. In that event, once it is accepted that estoppel is not available the only available route to redress is via reliance upon the doctrine of legitimate expectation.

This conclusion is not as radical and wide ranging a proposition as it might appear. The occasions and circumstances in which a local authority will provide an assurance that can be relied on by a landowner as creating a legitimate expectation but not enter into a development agreement of the sort Sefton sought to persuade Belfields to enter into immediately prior to the start of the Enquiry are likely to be very rare. Where an authority intends that the developer enter into such a development agreement it is likely that any assurance will be expressly made subject to the making of such an agreement in terms satisfactory to the authority. Aside from that, in many, perhaps most, cases, the alleged assurances are unlikely to be sufficiently clear and unambiguous or to have been made by someone with sufficient relevant authority to give rise to an assurance capable of founding a claim based on legitimate expectation in this area.

In this case, having reached the conclusions I have so far expressed, it seems to me that permission to seek a judicial review is bound to be granted so that the fact sensitive issues identified by Laws LJ in which I have referred to above can be resolved.

The first point on which Sefton reties is what it contends to be a requirement that before a party can rely on a legitimate expectation that party must be able to identify a clear and unqualified representation which it was reasonable for the recipient to rely on and which is said to be the source of the legitimate expectation. In this case as I have already mentioned, the assurance is said to be contained jn the e mail from Mr Lunt which in so far as is material for present purposes was to the following effect:

Ms Patterson next suggested that whatever legitimate expectation might have been created by the assurance referred to above, it could not survive the enquiry, the report of the Inspector and the confirmation of the CPO on behalf of the Secretary of State. In my view this point is misplaced as well. It is not possible for a CPO to be made subject to conditions at any rate of the sort the subject of the assurance. In any event, the assurance contemplated the making of a CPO that would not be given effect to unless the conditions set out in the assurance were not satisfied. It did not contemplate that no CPO would be made. Thus, it was not open to Belfields to object to the making of the CPO by reference to the assurance for that reason. That is why it had to contend before the inspector that it was not necessary for a CPO to be made at al' because it was ready willing and able to develop the site. Sefton argued that the asserted legitimate expectation could not survive the commencement of the enquiry process because the statement of case filed by Sefton was inconsistent with the terms of the Assurance. I am not able to accept that submission. In paragraphs 7.124-7.126 of the statement of case, Sefton stated that the compulsory acquisition of the site was necessary to enable the comprehensive redevelopment of the area to proceed. That was entirely consistent with the terms of the assurance because the terms of the assurance contemplated that a CPO would be made but not enforced unless the conditions contained in the assurance were not satisfied. This fact alone explains the limited nature of what was said in the Statement of case.

It is then argued that effectiveness of the assurance cannot survive the conclusions reached at the public enquiry and the decision letter issued by the Secretary of State. It is submitted that a fair reading of those materials shows that whatever the position was prior to the enquiry, confirmation of the CPO was sought and granted on the basis that Sefton was not satisfied that Belfields could make or had made satisfactory progress. It is submitted that on a fair reading of the inspector's report and the decision letter the Inspector had accepted Sefton's submissions on that issue and so did the Secretary of State. Sefton's case is that the execution of the GVD is entirely consistent with the conclusions reached by the inspector and the reasoning set out the Secretary of State's decision letter.

I reject this submission essentially for the reasons I have already given. The issue that was the subject of the Enquiry and the Secretary of State's confirmation letter was whether the CPO should be confirmed not whether the conditions to which the assurance had been made subject had been satisfied or not or even whether a relevant assurance capable of giving rise to a legitimate expectation had been given. It was simply not an issue that concerned or which could concern either the inspector or the secretary of state, It would not have been possible to complain that the CPO did not give express effect to the assurance because it is not suggested that the estoppel or legitimate expectation relied on had the effect of preventing Sefton from making or seeking confirmation of a CPO at all but only that Sefton was precluded from giving effect to the CPO (if otherwise confirmed) save in the circumstances set out in the assurance. This being so, it seems to me that the issue I am now considering was not and could not be considered either by the Inspector or the Secretary of State or, for that matter, the Administrative Court when hearing the statutory appeal. Indeed, it seems to me that the issue that I am concerned with could only become justicjable if and when it was alleged that Sefton was seeking to give effect to the CPO otherwise than in accordance with the alleged assurance. I thus reject the suggestion that either the inspector's report or the Secretary of State's letter is to be read as justifying the activation of the confirmed CPO notwithstanding the terms of the assurance.

I am satisfied for the reasons set out above that the e mail from Mr Lunt constituted a clear and unambiguous representation which it was reasonable for Belfields to rely upon. There is not I think any serious dispute that Beifields has demonstrated detrimental reliance upon the representation. It is not contended that there is an overriding public

The first formal assertion of the point now under consideration came in a letter from the solicitors acting for Belfields dated 30^th January 2008. The reason the letter was sent was a telephone conversation that had apparently taken place between those solicitors and the solicitors acting for Sefton (Eversheds) in which Belfietds' solicitors had been informed that Eversheds had been instructed to proceed with a GVD. This resulted in the letter from Eversheds dated 27^th March 2008. In so far as is material, that letter reads as follows:

Of these, I reject the second for the reasons that I have already given. As to the first and third, in my judgment they could only justify a departure from the previous assurance if

I now turn to the two conditions which Sefton say Belfields have not complied or are incapable of complying with - that is the deliverability condition (being able to progress the development of the site) and the timeliness condition ("in a timely fashion'). I preface my conclusions in relation to these issues by noting that at no stage prior to the taking of the decision did Sefton seek information from Belfields as to its ability to comply with the conditions, nor did it seek evidence from Belfields of its ability to comply with the conditions (notwithstanding that the conditionality of the assurance is framed by reference to there being "evidence of' the conditions being satisfied). Indeed no notice of any sort was given by Sefton to Belfields prior to the letter from Eversheds to Belfields' solicitors by which time the decision had been taken. The consequence of this is that the explanations that have been put forward on behalf of Belfields in these proceedings have not been investigated or tested. It is questionable whether it could be said to be reasonable for a local authority to act in this fashion. It also provides further support for the implication that in reality Sefton considered that following confirmation of the CPO by the Secretary of State, it was able to proceed without regard to the assurance. In my judgment that alone would justify quashing the decision.

I turn first to deliverability. The point made here by the local authority in the letter refers to delays to the regeneration scheme. No attempt has been made in the letter to attribute the delay it is alleged has occurred to Belfields not being able to progress the development of the site. In my view if that was what was alleged then Eversheds letter should have said so as to give Belfields a proper opportunity to provide evidence relevant to that allegation.

At the hearing before me, Sefton placed great reliance on the fact that no developer had been signed up as it was put as a joint venturer with Belfields for the development of the site. Sefton relies on the fact that the Inspector identified this as a source of uncertainty at paragraph 348 of his report and Sefton assert that the position has not altered materially since then. In answer to this point, Belfields make four points — the absence of a final agreement with a house builder has not prevented the claimant from pursuing its development to date, will not prevent its development in the future and extensive interest has been shown by developers in the project. This last point is demonstrated on the material before me as it was at the Enquiry. Even if all of that is wrong, it is asserted that Belfields could develop the site itself. The main point that is made however is that all this is premature — it is only if the stage has been reached where Belfields cannot get the support of a developer or the funding to develop that it can be said that it cannot progress the development of the site and it is only if the point is reached at which it becomes apparent that the development cannot for these reasons be completed within the timing for Sefton's scheme taken as a whole that it can be said that Belfields cannot develop the site timeously. I agree.

Although Sefton express scepticism about the ability of Belfields to develop the site itself, It is to be noted that Belfields have produced a letter from Yorkshire Bank dated 1 0^th June 2008 in which the Bank confirms that "whilst no formal development appraisal has been submitted by Belfields Limited, I confirm that the Bank has an appetite to assist with the finance requirement to allow the development of the site". The letter goes on that "prior to any formal agreement to development finance being advanced, the Bank has already confirmed a loan facility of E 125 million to Belfields...". The Bank commissioned a valuation report by Savills who reported in September 2007, That report valued the site at that stage and in the state it was then in at in excess of 24 million and that the gross development value of the site if development was completed in accordance with Belfields planning permissions would be just short of 224 million. That being so, it cannot be said that Belfields point that if no developer can be found, it could develop the site itself is plainly wrong. The local authority suggests that the company has no track record. That is so, but that point fails to take account of the fact that the company has retained the services of very experienced architects and also will be able to retain contractors to build out the project.

Sefton complained in the course of their submissions that the Savills report was not made available to Sefton in March 2008. Even assuming that the relevant decision was taken then, in my judgment Sefton has no basis for making such a complaint — this would be a point available to them only if they had written to Belfields before taking the decision to proceed with the execution of a GVD indicating their concern in relation to the point now under consideration. Similar considerations apply to Sefton's point that the Yorkshire bank letter came into existence after March 2008 — so it might have but there is no evidence that it would not have been forthcoming then if Sefton had made enquiries of the sort I refer to above by reference to this issue. The fact that the Savills report is dated in September 2007 suggests that the position would have been the same in March 2008 as it was in June when the Yorkshire Bank letter was written. The assertions by Sefton that it was not under an obligation to make enquiries and that Glassbrooks (Belfields' solicitors) did not set out the position in a letter to the authority are not points available to Sefton in my view. It is true that this particular point was not addressed in Glassbrooks' letter of 30^th January. What Mr Glassbrook did do was to refer to the assurance and then say "You are aware that our clients have well developed plans for the site and have continued to make progress to date". It was at that stage, if Sefton had been concerned about compliance with the conditions that they should have set out in a letter what their concerns were in a way that gave Belfields a fair opportunity to respond before a decision was taken.

The next point made is that there are not sufficient funds available to Belfieids to carry out what is referred to as "remediation" by which is meant the decontamination of the site. There is a major dispute between the parties concerning what is required concerning decontamination. There is no doubt that if Belfields and their decontamination experts are correct then they have the funds available to carry out the work required. If and to the extent that the scheme required is that which Sefton considers is necessary, then more funding will be required but the correspondence from Yorkshire Bank when read with the Savills report does not enable me to conclude that the necessary funding will not be made available. It is not open to Sefton to say as was submitted at the hearing before me that it did not know if funding would be available — for the relevant question was not asked. In any event the dispute between Sefton and Belfields concerning the scope of the decontamination scheme required has yet to be resolved and it is not for the court in the context of judicial review proceedings to resolve that dispute. There are statutory processes by which that dispute can be resolved. Nor it is open to Sefton to rely on delay caused by this dispute. Much of the delay attributable to this element is the result of a failure by Sefton to take a decision in relation to Belfields ^l proposed scheme. The proposed strategy was delivered to Sefton in September 2007. If there was a dispute then Sefton had to serve a decision notice refusing reserved matters approval. This did not happen for a period of 6 months until April 2008. do not consider that it is open to Sefton to say that the failure by Belfields to accede to its demands concerning the remediation scheme evidences either a failure or inability to progress or do so jn a timely way. Belfields position is one that has apparently been adopted on the advice of consultants (Amec) of the highest repute. It cannot be said that what Belfields contend would be reasonable is not at least arguably so. It may be that some delay will occur as a result of having to resolve this dispute. However, that is implicit and arises from the nature of the assurance that was given.

The other factor which Sefton rely upon as evidence of a failure to progress or progress in a timely fashion concerns a failure on the part of Belfields to hold relevant discussions with Sefton's preferred registered social landlord provider. This issue is I suspect the real issue between the parties. The outline planning permission by reference to which Belfields desire to develop the site contained a condition to the effect that 30% of the dwellings would be made available as rented accommodation in the first instance. The reserved matters approval was issued on 1 8^th April 2006. It requires that the development must be begun by no later than April 2009. Condition 17 went further than condition 14 of the outline planning permission by requiring the 30% of dwellings there referred to be made available for re-housing residents from the Klondike estate. On 7^th February 2007, an application for the removal of Condition 17 from the approval of reserved matters was made and by an approval notice dated 2^nd April 2007 it removed condition 17 from the approval of reserved matters. It will be recalled that the Inspector's report was issued in February 2007 and confirmation was given on behalf of the Secretary of State in May 2007. Belfields claim the reason why they rejected the development agreement and issued a unilateral S. 106 undertaking was because Sefton attempted to include with the development agreement a requirement which gave effect to Condition 17.

Sefton's case is that even with the removal of Condition 17, Belfields' development is still subject to a requirement that 30% of the accommodation must be made available for rented accommodation. This is not in dispute. There is no evidence that Belfields intend to proceed on any other basis. This was no doubt what led Ms Patterson to assert that either or both of the conditions of the assurance now under consideration had not been or were not capable of being complied with because of a failure on the part of Belfields to consult with Sefton's preferred social landlord. Ms Patterson sought to develop this theme by asserting that the condition in the planning permission on proper construction could only mean what it would have said had the missing words that Sefton tried to reintroduced had appeared therein. There are a number of difficulties about this approach. For present purposes however, it seems to me that this allegation had not been put to Belfields prior to the decision being taken to execute the GVD so that Sefton had no idea what if any answer there was to the point. In any event it seems to me that if such an argument was to be made it could not be advanced on the material before me by reference to the two conditions relied on by Sefton. If the point is to be deployed at all, it seems to me that it would have to be deployed by reference to the SPG condition which

The Article 1 Point

In the end in my judgment Sefton were bound by fairness to act in accordance with the assurance contained in the e mail from Mr Lunt of 6^th July 2005. In my judgment that document contained a clear and unambiguous statement that was intended to be and was in fact acted upon by Belfields to its detriment. Fairness required that Sefton continue to give effect to that assurance and in my judgment Sefton have failed to do so. In my judgment the decision to proceed with the GVD in relation to the site was driven by a belief that following the completion of the statutory appeal process, Sefton could proceed to enforce without further ado. My reasons for reaching this view are set out above. At best that view was in my judgment mistaken and by forming that view and acting upon it, Sefton failed to act fairly towards Belfields by failing to give effect to the assurance that had been given. In any event, even if this conclusion is wrong and Sefton re-decided the question or decided the question with the terms of the assurance in mind, in my view Sefton failed to give proper effect to the assurance that it had given because it did not draw to Belfields' attention that it was considering making a GVD because it did not believe the conditions to the assurance relied on by Sefton had been or were capable of being complied with and giving Belfields a reasonable opportunity to respond and supply evidence and other material or otherwise answer that allegation. Further, I do not consider that the facts and matters relied on by Sefton as showing that the conditions had been or were not capable of being complied with demonstrate that to be so either individually or collectively at any rate on the material currently available. No overriding justification has been advanced for departing from the promise previously made. Having

This decision is no bar to Sefton continuing to monitor Belfields ^l performance, and if it concludes, having given Belfields a fair opportunity to respond, that any of the conditions to which the assurance was made subject are not being or cannot be satisfied then nothing that I have said in this judgment constitutes a bar to the local authority proceeding to execute new GVDs. I would add that Mr Elleray fairly accepted this to be so in the course of his submissions as he also accepted, correctly in my judgment, that Belfields could not expect a better outcome in relation to its estoppel claim that could be obtained from its judicial review claim. The basis for these concessions was Mr Elleray's acceptance, again correctly made in my judgment, that in deciding to proceed on the basis of the assurance, Belfields did so taking the risk that in the future Sefton would decide that one or other of the conditions would not be or could not be complied with on grounds that were not assailable and that in consequence Sefton would exercise what in the end I have concluded it intended should be its reserve power to compulsorily purchase the site.