Downderry Construction Ltd v Secretary of State for Transport, Local Government & the Regions & Anor [2002] EWHC 2 (Admin)

EWHC-Admin
Downderry Construction Ltd v Secretary of State for Transport, Local Government & the Regions & Anor
[2002] EWHC 2 (Admin) · 2002-01-11
[1]Mr Justice Richards: The claimant owns some 2.64 hectares of land at St Anne’s Chapel, Gunnislake, Cornwall. During the 1970s separate planning permissions were granted for the phased development of the land for housing. In 1973 full planning permission was granted for the construction of 31 dwellings on Phase 1. That permission was renewed in 1978. Later in 1978 full planning permission was granted for the construction of 37 dwellings and 38 garages on Phase 2. In 1986 planning permission was granted on appeal for the development of Phase 1 at a higher density of dwellings. By May 2001 Phase 1 had been substantially completed and the estate road laid in up to the boundary of Phase 2.[2]On 4 February 2000 the claimant applied to Caradon District Council as local planning authority for a certificate of lawfulness of proposed development on Phase 2. The claimant proposed to construct a dwelling on the area of land for which the Phase 2 planning permission had been granted in 1978. The dwelling was to be the first of the 37 dwellings and 38 garages authorised by that grant of planning permission.[3]The application for a certificate of lawfulness was made under s.192 of the Town and Country Planning Act 1990, which provides:
“(1) If any person wishes to ascertain whether - … (b) any operations proposed to be carried out … on … land would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the … operations in question. (2) If, on an application under this section, the local planning authority are provided with information satisfying them that the … operations described in the application would be lawful if … begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.”
[4]By virtue of s.191(2), operations are lawful at any time if:
“(a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force.”
[5]By s.192(4), the effect of a certificate of lawfulness is conclusively to presume to be lawful the operations it describes on the land that it specifies.[6]On 5 May 2000 the council refused to grant the claimant the certificate requested. The claimant appealed under s.195 of the 1990 Act to the Secretary of State, who appointed an inspector to determine the appeal. There were two issues before the inspector:(1) whether the development authorised by the permission granted for Phase 2 in 1978 had been implemented by carrying out a material operation within the requisite period, and(2) whether the claimant had established on the balance of probabilities that the council was estopped from taking enforcement action in respect of the construction of the dwelling. The council had found against the claimant on both issues. In a decision letter dated 14 June 2001 the inspector dismissed the appeal on both issues.[7]The claimant now applies under s.288 of the 1990 Act to quash the inspector’s decision. It does not challenge the inspector’s conclusion on the first issue. The challenge relates only to his conclusion on the second issue. The question for this court is whether the inspector erred in law in finding that the council was not estopped from denying the lawfulness of the development proposed by the claimant on the Phase 2 land. Factual background[8]I have referred already to the grant of planning permission for Phase 1 in 1973 and for Phase 2 in 1978.[9]The grant of planning permission on appeal in 1986 for a higher density of dwellings on Phase 1 is relevant to the arguments on estoppel. The inspector’s decision, dated 21 March 1986, identified as the main issues “the acceptability or otherwise, of the proposed development, having regard firstly, to the available mains water supply and secondly, to the proposed access on to the Class I highway”. Having described the site, the inspector went on:
“4. There is no dispute that, by reason of previous planning consents in 1973 and 1978, and the start of construction work, there is an extant planning permission covering the whole of the 2.64 ha in your clients’ ownership, for 68 dwellings (31 on Phase I – appeal site, and 37 on Phase II). Due to a change in policy following the introduction of the approved Cornwall Structure Plan, and the non-statutory District Settlement Policies and Plan, which, contrary to the former County Development Plan, seek to restrict housing development to fewer locations, any new permission for residential development here would conflict with that policy. I note however, that the council have taken into account the planning history of the site and in addition, recognises that the present application, for small 2-storey development, at a higher density than the earlier proposal, but with only a limited increase in persons accommodated, is in step with the general need to produce more small dwellings, including starter homes, as encouraged by government policy, set out in Circular 22/80. Furthermore, as pointed out in Circular 14/85, Development Plans are one, but only one of the material considerations that must be taken into account in dealing with planning applications. 5. Notwithstanding this, the fact that your clients already have permission to carry out development on this site, does not give them any legal or moral right to expect the grant of permission for the present development, as each application must be considered on its merits, but the existence of this permission is itself a material consideration, and having regard to the planning history of the site, the nature of the present proposals, and the general acceptance of the council of the principle of the development, apart from the access, I am of the opinion that, insofar as the principle of the development is concerned, such harm as the proposal may generate is insufficient to overcome the presumption in favour of allowing the appeal, as provided for in Circular 14/85.”
[10]Having rejected the council’s reasons for refusal in relation to water supply and access, the inspector stated:
“9. The council have suggested that, in the event of this appeal being allowed there should be a Section 52 agreement between your clients and the council, limiting the number of dwelling units on Phases I and II, to the 68 originally permitted, but this is unacceptable to your clients. I am unable to make it a condition of planning consent that such an agreement be entered into, and consider that such a condition imposed by me would be unreasonable, bearing in mind the planning history. It is however a matter of importance, and is one for consideration by the council, and the appellants in the light of current planing policies, the development already approved, including this development, and any future proposals.”
[11]The inspector went on to allow the appeal and to grant planning permission for the erection of 52 dwellings and alterations to access on the Phase 1 land.[12]In 1993 the consultation draft of the Caradon Local Plan was produced. It was followed by the deposit version in September 1994 and the plan was finally adopted in December 1999. All versions of the plan identified the Phase 2 land as benefiting from planning permission, both on a map and in the accompanying text. Paragraph 13.02 stated that “2.62 ha of land to the west of Old Mine Lane has permission for 89 dwellings” (which is plainly the total of the 52 authorised by the 1986 planning permission for Phase 1 and the 37 authorised by the 1978 planning permission for Phase 2).[13]On 9 June 1994 Black Horse Agencies wrote to Mr P Oakley of the council’s planning department in relation to the proposed sale of the Phase 1 and Phase 2 land. The letter stated:
“We act for the vendors of the above mentioned land and we attach herewith an ordinance [ sic ] survey plan showing the extent of the land edged red, together with a copy plan showing the approved layout on phase 1 for 52 units. It is proposed that this land will be disposed of in the near future and it is anticipated that it is likely that the development will take place under a joint venture type arrangement, where the vendor acts as sponsor and a separate development company carries out the construction. Our understanding of the situation is as follows: 1. By reason of previous consent in 1973 and 1978 and the start of construction works there is an extant planning permission covering the whole of the 6.5 acres for 68 dwellings (31 on phase 1 – 37 on phase 2). 2. There is a detailed planning consent for 52 units on phase 1, granted on appeal in 1986, and extant by virtue of a material start ….”
The letter went on to refer to a number of possible forms of development and to invite comments on them.[14]In a reply dated 22 June 1994, signed by Mr Oakley on behalf of the Director of Planning Services, it was stated:
“I refer to your letter of June the 9 th concerning the residential land at St Anne’s Chapel, which has had a number of planning consents granted for development between 1973 and 1986. I have answered your points in the order in which you have raised them. 1. I can confirm that an extant planning permission exists on this site for 68 dwellings by reason on [ sic ] 2 planning consents granted in 1973 and 1978. Building Regulation commencement in 1975 has been deemed to keep these consent [ sic ] ‘alive’. 2. The subsequent approval on phase one was for 52 dwellings, granted on appeal in 1986. Our records show that commencement of development did take place in respect of plot 20 and 21 within 5 years of the decision letter and this permission is also extant ….”
The letter also provided comments on the various forms of development referred to in the letter from Black Horse Agencies of 9 June.[15]Mr Brian Richardson, a director of the claimant company, stated in his witness statement before the inspector that the company’s core business is the construction of residential and industrial buildings in Cornwall and that his own principal role in purchases of land by the company is to organise and supervise the transaction and financial arrangements. His statement goes on:
“5. I am familiar with the form and content of sales particulars, pre-contract enquiries and associated conveyancing documentation. I would normally satisfy myself as to the planning status of land that the Company proposed to purchase by reference to documentation produced by the vendor and/or its agents, any further relevant investigation with the local planning authority concerned and through discussion with the solicitor who has advised the Company on land transactions for 20 years or more. 6. For a number of years prior to 1995 I had what I would describe as a general awareness of the planning position on the land called Phase I and Phase II for the purposes of the above Appeal (‘The Land’) …. 7. … In the early part of 1995 I judged that the Land might be acquired at a price that reflected more realistically its market value. 8. Having regard to the amount of development the Company has carried and does carry out in South East Cornwall, when the Caradon local plan went on deposit in 1994, I had looked at land allocations in the Callington and Gunnislake area and had specifically noted that the draft local plan showed planning permission for 89 dwellings on the Land. 9. I then contacted the selling agents, Black Horse Agencies, and arranged for a copy of the sales pack to be sent to me …. I read the contents of this sales pack carefully .… 12. I looked with particular care at the contents of appendices 2(a), 2(b) and 2(c) in the sales pack [i.e. exchange of letters in 1994, inspector’s decision in 1986 and confirmation that the 1986 planning permission had been implemented]. I considered that the letter dated 22 nd June 1994 to Black Horse Agencies in appendix 2(a) contained unqualified statements made by a senior officer of the Council on behalf of the Council as to the exact nature of the planning permissions on Phases I and II. 13. I regarded the letter of the 22 nd June 1994 as an unambiguous statement by the Council about the planning permission. Point 1 of that letter coincided almost exactly with the Inspector’s decision letter of 21 st March 1986 at appendix 2(b) of the sales pack. In the context of what I knew of the local plan, I formed the view here that no further investigation was necessary to clarify the planning permission. 14. After discussion with Mr Marshall and the Company’s solicitor, including reviewing the documents from the Council in respect of the planning position, I decided to make an offer to purchase the Land. 15. Following negotiations a purchase price of £305,000 was agreed …. Contracts were exchanged on 25 th October 1995 followed by completion in due course. 16. I had no reason to doubt the accuracy of the statements in the Council’s letter of 22 nd June 1994 and did not in fact doubt the accuracy of those statements. I did not feel it was necessary to make any further enquiries of Caradon or indeed to anybody else in order to test the accuracy of those statements. I did not make any further enquiries to test the accuracy of those statements nor instruct anyone else to do so on behalf of the Company.”
[16]It was not until about November 1999 that the council first questioned the continued existence of planning permission for the Phase 2 development. In a letter dated 10 November 1999 the council expressed the opinion that the planning permission granted in September 1978 had lapsed. It was that which prompted the application for the certificate of lawfulness. Estoppel by representation[17]The arguments before the inspector and the inspector’s conclusions on them dealt with estoppel under three headings: issue estoppel, estoppel by representation and estoppel by convention. In the submissions to this court, estoppel by representation was taken first. I think it convenient to adopt that order.[18]It is necessary to set out in full the inspector’s reasoning in support of his conclusion that estoppel by representation did not operate:
“26. The appellants’ case on this issue hinges on the evidence of Mr Brian Richardson and his reliance on the Council’s reply to the enquiry by the Black Horse Agency concerning the planning status of the whole 2.64 hectares of development land and other matters relevant to its future sale. In their letter to the Council dated 9 June 1994, Black Horse Agency make it abundantly clear that the land would be disposed of in the near future and were clearly seeking the Council’s confirmation of the planning situation, presumably to ensure that the sales particulars were accurate in that respect. 27. Firstly, they reiterated Council’s evidence in the Inspector’s decision letter in 1986 that there was an extant planning permission for 68 dwellings on the whole site. In their reply dated 22 June 1994, the Council confirmed that ‘an extant planning permission exists on this site for 68 dwellings by reason of two planning consents granted in 1973 and 1978. Building Regulations commencement in 1975 has been deemed to keep these consent (sic) ‘alive’.’ Secondly, the agents referred to the permission granted on appeal for 52 dwellings on Phase 1 which was also extant by virtue of a material start. In their reply the Council confirmed that ‘The subsequent approval on phase one was for 52 dwellings, granted on appeal in 1986. Our records show that commencement of development did take place in respect of plots 20 and 21 within 5 years of the decision letter and this permission is also extant.’ The letter was signed by Mr Oakley for the Director of Planning Services. 28. Although both parties acknowledge that the Western Fish judgement found that the Courts are reluctant to apply estoppel by representation to development control matters, the appellants argue that an exception to that general rule applies in this case. However, the same judgement also found that ‘there must be some evidence for justifying the person dealing with the planning officer for thinking that what the officer said would bind the planning authority.’ In this case, the Black Horse Agency wrote specifically to Mr Oakley seeking confirmation of facts as they understood them from the planning history of the land in readiness for its sale for development. In my view, Mr Oakley cannot have been in any doubt about the serious nature of such an enquiry and, indeed, his reply was not couched in the more familiar tone of the enquiry, but was a formal reply on behalf of the Director of Planning Services which clearly led the agents and the appellants to understand that this was the Council’s position. 29. However, while I acknowledge the appellants’ view that the Council’s reply of 22 June 1994 appeared to be an unambiguous statement of fact that there was an extant permission on the land, paragraph 1 in that letter is clearly in error. By any informed evaluation of the permissions on the land, any reasonable person would have found that the officer’s reply was a mistake and appears to have stemmed from similar inaccurate evidence put to the Inspector in 1986. Clearly, a Building Regulations commencement in 1975 could not, as the Council rightly point out, have been a material commencement on a permission not granted until 1978. Bearing in mind the age of the Phase 2 permission, the Council’s error and the absence of any apparent commencement on the site, I would not have expected an experienced developer, such as the appellants, to have relied totally upon the officer’s reply. This is particularly relevant in this case because, when the Council’s letter was written in 1994, statutory procedures were in place for potential purchasers of land to determine the lawfulness of development, by means of application for a LDC, which was not in place when most of the judgements referred to were made. I therefore conclude that the case for estoppel by representation has not been proven.”
[19]It was common ground before the inspector and is common ground before me that estoppel is available in principle in the present context, by way of exception to the normal rule that a public authority cannot be estopped in the exercise of its statutory functions: see Western Fish Products Ltd. v. Penwith District Council [1981] 2 All ER 204 . The debate has focused on whether the inspector erred in concluding that the conditions for the exceptional operation of an estoppel were not shown to be met on the particular facts of the case.[20]Mr Fookes, for the claimant, submits that on the inspector's findings all the elements of estoppel identified in Western Fish were met and the inspector erred in failing so to find. Further or alternatively, the inspector erred in applying an additional test as to the reasonableness of the claimant's reliance on the representation. He also failed to have regard to material considerations and took into account immaterial considerations in determining the reasonableness of the claimant's reliance on the representation.[21]Mr Mould, for the Secretary of State, submits that the inspector's approach was correct and that he was entitled to reach the conclusion he did on the facts. In particular, the letter of 22 June 1994 was not capable of being taken as reliable confirmation that planning permission was extant and it was not reasonable for the claimant to rely on the letter in the way it did.[22]The elements of estoppel by representation are summarised as follows in Wilken & Villiers, Waiver, Variation and Estoppel , paragraph 8.015:
"First, A makes a false representation of fact to B or to a group of which B was a member. Secondly, in making the representation, A intended or knew that it was likely to be acted upon. Thirdly, B, believing the representation, acts to its detriment in reliance on the representation. Fourthly, A subsequently seeks to deny the truth of the representation. Fifthly, no defence to the estoppel can be raised by A."
[23]In Western Fish the court found against the plaintiffs on the first and third elements. It was alleged in that case that the plaintiffs had acted in reliance on a letter from the council containing a representation that the plaintiffs enjoyed relevant established use rights in respect of certain premises. The court held first that the letter did not contain the representation alleged and that in any event the plaintiffs did not rely on it to their detriment: “We are unable to accept that a person familiar with the relevant facts known to both the writer and the recipient of the letter, reading the letter with reasonable care, could reasonably have read it as giving the plaintiffs confirmation that there was an existing use right which would cover the uses contemplated by the plaintiffs' scheme without the necessity for planning permission in respect of use …. It follows that no relevant estoppel, 'proprietary' or otherwise, can be founded on any representation contained in that letter. Even if it were to be construed as having the meaning which the plaintiffs placed on it, it would still, in our judgment, not avail the plaintiffs as an estoppel. They did not act on it to their detriment …" (216g-217b).[24]The court went on to state that even if those elements had been satisfied the claim would still have failed. One reason was that the case did not come within the exceptions to the general principle that a statutory body could not be estopped from performing its statutory duties. In considering whether the case fell within the exceptions, the court referred to the dictum of Lord Denning MR in Lever (Finance) Ltd. v. Westminster Corporation [1971] 1 QB 222 at 230 that "[i]f an officer, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may be bound by it, just as much as private concern would be." The court qualified the generality of that proposition: “In our judgment [ Lever ] is not an authority for the proposition that every representation made by a planning officer within his ostensible authority binds the planning authority which employs him. For an estoppel to arise there must be some evidence justifying the person dealing with the planning officer for thinking that what the officer said would bind the planning authority. Holding an office, however senior, cannot, in our judgment, be enough by itself …. Whether anyone dealing with a planning officer can safely assume that the officer can bind his authority by anything he says must depend on all the circumstances …. In this case there was no evidence of any relevant delegations of authority save in relation to applications under ss.53 and 94 …” (220g-221b). In order to found an estoppel by representation on the statement of a planning officer, it is therefore necessary to establish not only that the officer was acting within the scope of his ostensible authority but also that the person dealing with him was justified in thinking that what he said would bind the planning authority. This requirement of delegated authority is, of course, additional to the basic elements of estoppel by representation.[25]In the present case the inspector addressed this additional requirement in paragraph 28 of his decision. He plainly directed himself by reference to the principles laid down in Western Fish . He had already referred in paragraph 26 to the fact that Black Horse Agencies were "clearly seeking the Council's confirmation of the planning situation". He found in paragraph 28 that "Mr Oakley cannot have been in doubt about the serious nature of such an inquiry" and that the reply "was a formal reply on behalf of the Director of Planning Services which clearly led the agents and the appellants to understand that this was the Council's position". That amounted in my view to a finding that the requirement of delegated authority was met: the circumstances were such that the claimant could safely assume that the officer could bind the authority by what was said. That the position adopted in the planning officer's letter could properly be taken as representing the formal view of the council is reinforced by the consideration that it reflected the position adopted in the consultation draft of the local plan issued by the council.[26]Once the question of delegated authority is dealt with, one comes back to the basic elements of estoppel by representation. The first question is whether the planning officer's letter of 22 June 1994 contained a false representation of fact (it being common ground that such a representation must be clear and unequivocal). At the beginning of paragraph 29 of the decision the inspector "acknowledges" the claimant's view that the council's letter "appeared to be an unambiguous statement of fact that there was an extant permission on the land", but goes on to state that the letter was clearly in error and that he would not have expected an experienced developer such as the claimant to rely totally upon it. In my judgment the inspector thereby accepts the existence of a sufficient representation that there was an extant planning permission, but explains why in his view it was not reasonable for the claimant to rely upon it.[27]Mr Mould submits that the statement in the council's letter must be read as a whole and that if there is an internal nonsense in it then it is not capable of amounting to a representation upon which reliance can be placed; and that what the inspector says in paragraph 29 about a clear error reflects that line of reasoning and amounts to a finding that no clear and unequivocal representation was made. In my view, however, that is not how the inspector approaches the matter. The general thrust of what he says in paragraph 29 and indeed in paragraphs 26-29 as a whole is to the effect that reliance on the representation was unreasonable rather than to the effect that no sufficient representation was made; and I note that in his summary in paragraph 33 he points to the existence of the statutory procedures for determining the lawfulness of development on Phase 2 (a point going to reasonableness of reliance) and says nothing about the absence of a sufficient representation.[28]If, contrary to my view, the inspector did find there to be no sufficient representation for the purposes of an estoppel, then in my judgment he erred in so doing. Paragraph 1 of the letter of 22 June 1994 letter contained an unequivocal representation in the clearest of terms that an extant planning permission existed for 68 dwellings (which plainly included the Phase 2 development). If the reason given for the view expressed was a bad one, that did not effect the status of the representation itself. In any event, for reasons given later in the context of reliance, I do not accept that the reason given was so obviously bad as to undermine the effect of the representation made or to render the statement incapable of being relied on as a representation by the council as to the planning status of the land.[29]Although the representation was made directly to Black Horse Agencies, it was clear from the context that it would be communicated to prospective purchasers of the land, and no point was or is taken in relation to the status of the claimant as a person to whom the representation was made. It is also clear from the context that the council knew that the representation was likely to be acted upon. All this is implicit in the inspector's reasoning.[30]It is also clear that the claimant believed the representation and acted to its detriment in reliance on the representation. That was the unchallenged evidence of Mr Richardson and is again implicit in the inspector's reasoning. But the inspector took the view, for the reasons given in paragraph 29, that such reliance was unreasonable. That, as it seems to me, lies at the heart of his reasoning and is the key to this case: his decision can be upheld only if he was entitled both as a matter of law and on the particular facts to hold that estoppel by representation was precluded on the basis that it was unreasonable to rely on the representation made.[31]I have been shown nothing in the textbook or authorities to support the proposition that reliance on a representation must be reasonable for an estoppel to arise. The summary of principles in Wilken & Villiers goes no further than a requirement that the recipient of the representation believes the representation and relies on it to his detriment. Mr Mould submits that there is also an objective element and relies in that connection on paragraphs 8.074-8.075, where it is stated, in relation to the requirement that the representation is intended to be acted upon, that "[a]n objective approach is taken to the issue and therefore it will suffice to show that the representor has so conducted itself that a reasonable person would believe that the representor held the requisite intention" and that "[i]t is probably also sufficient to demonstrate that the representor knew that a reasonable person would be likely to act in reliance on the representation or had reasonable grounds to believe that the representee would so act". Intention or knowledge that a representation is likely to be acted upon is, however, a separate issue and the inspector did not find and could not properly have found against an estoppel on the basis of the absence of such an intention or knowledge. Mr Mould also relies on the passage in Western Fish where the court held that the letter in question did not contain the representation alleged by the plaintiffs. But whether there was a representation at all is again a separate question from whether reliance on the representation, if made, must be reasonable; and the passage in Western Fish does not touch on the latter question. Apart from the absence of authority to support the proposition, it would in my view be surprising if, when a representor had made a false representation intending or knowing that it was likely to be acted upon and the representee, believing the representation, had in fact acted on it to his detriment, the representor could then defeat an estoppel on the basis that the representee's reliance on it was not reasonable.[32]For those reasons I take the view that if a recipient of a representation relies in fact on that representation and the other elements of estoppel are satisfied, the estoppel cannot be defeated on the basis that the reliance was unreasonable. In holding that the estoppel was so defeated in this case, the inspector erred in law. The error was central to his reasoning.[33]Even if it were possible in principle to defeat an estoppel by reference to the unreasonableness of reliance on the representation, the inspector's conclusion could not in my view be supported on the facts. The inspector considered the letter to be clearly in error, in that a Building Regulations commencement in 1975 could clearly not have been a material commencement on a planning permission granted only in 1978. That the letter was in error is not now disputed. But in holding the error to have been so clear that any reasonable person in the position of the claimant would have noticed it and would not have relied on the representation, the inspector was in my view going too far. This was plainly no mere slip but a considered statement by the planning department. Moreover it represented the position consistently adopted by the department since at least 1986. It was the position agreed at that time between the parties on the appeal to the inspector. It was also the position reflected in all versions of the local plan, from the consultation draft in September 1994 to the adopted plan in December 1999. Further, the letter referred to the 1975 commencement as having been "deemed" to keep the 1973 and 1978 consents alive, rather than containing a categoric statement as to the legal effect of a commencement in 1975 on a permission granted in 1978; and it must be borne in mind that Phases 1 and 2 were closely related, sharing drainage and access. In all the circumstances I do not think that the claimant's reliance on the representation that planning permission for Phase 2 was extant could properly be castigated as unreasonable.[34]Nor was the inspector correct to treat the claimant as relying "totally" on the letter. It was clear from Mr Richardson's witness statement that reliance was also placed on the local plan showing planning permission for Phase 2 and that the 1986 inspector's decision had been carefully considered. I accept that the letter of 22 June 1994 was the decisive factor, but in considering the reasonableness of treating it as such it is important to have regard to the wider context. The representation contained in it reiterated the position consistently adopted since at least 1986. When that was reiterated in this way in a formal letter from the planning department, it was not unreasonable even for an experienced developer to rely on it.[35]The inspector also placed emphasis on the existence of the statutory procedures in place in 1994 for potential purchasers of land to determine the lawfulness of development by means of an application for a certificate under s.192 of the 1990 Act. As I have mentioned, this was the one point picked out in his summary in paragraph 33 of the decision letter. Mr Fookes submits, and I accept, that it would be wrong in law for the inspector to treat the availability of the s.192 procedures as precluding the possibility of an estoppel by representation in the present context. But that is not what the inspector does. His approach is less categoric than that. He treats the availability of the statutory procedures as going to the reasonableness of reliance on the representation in the circumstances of the case. Even in that respect, however, he seems to me to attach undue significance to them. Where there has been a serious inquiry and a formal reply and it is otherwise reasonable for a developer to rely on the reply, I do not see how the possibility of an application under s.192 can make it unreasonable to rely on the reply. If the council felt unable to give a formal reply, or the reply given were not satisfactory, then s.192 could be used; but it is not necessary to use it where the council feels able to give a formal reply the terms of which are satisfactory to the developer.[36]The inspector seems to have regarded the availability of the s.192 procedure as undermining earlier judgments, apparently including Western Fish itself. It is not clear why he took that view. Mr Fookes may be correct in suggesting that he misunderstood the effect of a note in the Planning Encyclopaedia about s.192. In any event, however, I do not think that the changes introduced by s.192 had the significance that the inspector attached to them. The s.192 procedure is much more comprehensive, but even before the 1990 Act it was possible to make a formal application to the local planning authority for a determination as to whether a proposed development needed planning permission. Further, it has not been submitted, and does not appear to have formed part of the inspector's reasoning, that a request for a binding statement outside s.192 as to the existence of planning permission is precluded by the availability of the s.192 procedure. For those various reasons the availability of the s.192 procedure does not have any obvious effect on the position. At any rate in my view it is not capable of rendering the claimant's reliance on the council's representation unreasonable in the circumstances of this case.[37]I have dealt specifically with the first three requirements of estoppel by representation. As to the remaining requirements, it is not in dispute that the council subsequently sought to deny the truth of the representation contained in the letter of 22 June 1994, and no other defence to the estoppel was raised. Accordingly, the inspector's decision in this case turned on his erroneous view that estoppel was precluded by unreasonable reliance by the claimant on the council's representation. His error on that point is fatal to his reasoning and there is no basis for withholding relief in the exercise of the court's discretion. The claimant's challenge on this ground succeeds and the decision must be quashed.[38]It may nevertheless be helpful for me to deal briefly with the further issues raised before me. Issue estoppel[39]The Inspector’s reasoning in relation to issue estoppel was as follows:
“24. The appellants' case on this subject relies on the decision of the Inspector on 21 March 1986 … to grant planning permission for 52 dwellings on Phase 1, the main issues in which were water supply and access. In paragraph 4 of his letter he noted in that ‘there was no dispute that, by reason of previous planning consents in 1973 and 1978, and the start of construction work, there is an extant planning permission covering the whole of the 2.64 hectares.’ In paragraph 5 he refers to the extant permission but only in the context of a material consideration, because he warns that it would not give the appellants any ‘legal or moral right to expect the grant of permission on the present development.’ In the judgement in the Watts case it was found that 4 conditions had to be satisfied before issue estoppel could be applied. Firstly, the whole matter must be fairly and squarely before the Tribunal but, in my opinion, the Inspector was considering a new application on Phase 1 and not whether the old permissions were extant, and it is clear from the Inspector’s letter that the had simply recorded the agreement of the parties on the matter. Secondly, he did not fully address whether or not the permissions were extant. Thirdly, he made no unequivocal decision on the matter and, as these conditions were not fulfilled, the fourth also did not apply. 25. I accept that it was found in the Knott case that issue estoppel could arise upon evidence or an admission made by a party but, in my view, this would only apply if the status of the previous permissions were fairly and squarely before the Inspector in 1986. In that appeal, he was not required to make a decision on this matter and simply accepted the submitted evidence as a material consideration. In addition, as he was only considering an application for a new scheme on Phase 1, it seems to me highly unlikely that the planning status of the Phase 2 land would have affected his decision. I therefore conclude that there is nothing in the Inspector’s decision to justify a claim of issue estoppel.”
[40]The inspector referred in that passage to Watts v. Secretary of State for the Environment [1991] 1 PLR 61, where Sir Graham Eyre QC, sitting as a Deputy Judge of the Queen's Bench Division, examined the authorities and then summarised the relevant principles as follows: “In my judgment, in order that an earlier decision upon the evidence or admission by a party can operate as an 'issue estoppel' in relation to a subsequent issue in subsequent proceedings, certain conditions should be fulfilled: 1. where the issue involves a mixture of fact and law the whole matter must be fairly and squarely before the tribunal; 2. the tribunal must fully address that matter; 3. the tribunal must make an unequivocal decision on that matter; and 4. the fact that the first three conditions are fulfilled should be clear on the face of the decision” (77D-E). In applying those principles the deputy judge also drew a distinction (at 77G-H) between a finding that was "the essential foundation" for an inspector's conclusion on a principal issue and a finding that was "merely incidental or ancillary to the inspector's decision when dealing with a matter relating to a subsidiary issue".[41]That an issue estoppel could be founded on an admission was expressly stated in Watts . An illustration of the application of the principles to an admission is given by R v. Caradon District Council, ex p. Knott (2000) 80 P&CR 154, to which the inspector also refers. The point is covered in the following passage from the judgment of Sullivan J: “Mr Mynors is able to argue that the issue whether planning permission had in fact been implemented was not 'fairly and squarely' before the judge, only because it had been assumed by all parties, the applicant, the Secretary of State and the local planning authority that the planning permission had in fact been implemented and was valid. In those circumstances it is not surprising that the judge dealt shortly with the matter. As Mr Fookes submits, issue estoppel may be based either on evidence or on the admissions of a party. It would be surprising if the applicants were to find themselves in a worse position precisely because all of the parties were so sure that planning permission had been implemented that they felt it unnecessary to argue about that point in front of the judge. The validity of the planning permission does not go to a peripheral issue in that litigation. If the planning permission was not still valid, there could have been no valid application under section 73; no valid appeal to the Secretary of State, and no valid application to the High Court. Thus the matter was fairly and squarely before the Court. Since the point was common ground, it was not necessary to deal with the matter in any detail. The judge addressed the issue as fully as was necessary in the circumstances. He reached a clear conclusion that the planning permission was still alive and could be implemented by the applicants. In my judgment, the council as a party to that litigation is bound by that decision” (173-174).[42]Mr Fookes submits in the present case that the issue of the planning status of the Phase 2 land was fairly and squarely before the inspector in 1986 and was addressed by him as fully as was necessary in the circumstances. The agreed position was stated unequivocally and it was not necessary for the inspector to make a "decision" on it. The inspector erred in distinguishing Knott on the basis that the inspector "was not required to make a decision on this matter and simply accepted the submitted evidence as a material consideration". Moreover he was required to make a decision on whether to permit development taking into account certain material considerations to which the admission was fundamental. The fall-back position with regard to Phase 2 was a most material consideration in determining whether to grant permission for Phase 1, a site in open countryside. The fact that built development was permitted and would adjoin the site to the north and west would have been vital to a visual appraisal and to an assessment of the relationship of the proposed dense development to the layout and density of Phase 2. It was also material to consider the total number of houses to be serviced by the access and water supply, which were common to Phases 1 and 2.[43]Mr Mould's submissions in response are, in essence, that the inspector directed himself correctly by reference to the principles stated in Watts and applied in Knott and that the decision he reached was reasonably open to him on the facts.[44]I accept Mr Mould's submissions on this issue. In my judgment the inspector was entitled to conclude that the existence of planning permission for Phase 2 was not fairly and squarely before the 1986 inspector, was not fully addressed by him and was not the subject of an unequivocal decision by him. The 1986 inspector's concern was with the grant of planning permission for a more intensive development on Phase 1. In that connection the fall-back position in terms of an existing planning permission for Phase 1 was important, but the existence of planning permission for Phase 2 was not. The essential reasoning in the 1986 decision does not touch on the Phase 2 land and there is no reason to believe that the decision would have been any different if the agreement as to an existing planning permission had related only to Phase 1 and the position with regard to Phase 2 had been left open. Although reference was made in paragraph 9 of the 1986 decision to the importance of a s.52 agreement limiting the number of dwellings on Phases 1 and 2, it was expressed as something that the inspector could not deal with and that was for consideration by the council and the appellants. It was plainly not central to the decision, which rested on the planning merits of the proposed development on Phase 1 and in particular on a rejection of the council's objections concerning water supply and access. The agreed existence of planning permission for Phase 2 was no more than a material consideration going to a peripheral issue rather than constituting the essential foundation of the decision. Thus the present inspector was entitled to distinguish Knott as he did. More generally, his application of the principles in Watts and Knott involved no error of law and was reasonably open to him on the facts.[45]In relation to this ground, therefore, the claimant's challenge fails. Estoppel by convention[46]The inspector’s reasoning in relation to estoppel by convention was as follows:
“30. Although this form of estoppel is not normally considered to be relevant in planning matters, the Council state in paragraph 3.3.2 of their statement that the appellants have to show that there was an agreed assumption that the land had the benefit of planning permission, that the assumption formed the basis of a transaction between the Council and the appellants and that the appellants acted on that transaction. 31. In support of their case, the appellants refer to the negotiations between the previous owners and the Council over a period of 25 years, the consequent planning history of the land and their dealings with the Council since they purchased the land. As the Council point out, apart from the original grant of planning permission on Phase 2 in September 1978, all the transactions that took place between G H Webber Limited and the Council concerned the development of Phase 1. The original 1973 permission, its renewal in June 1978, the grant of planning permission on appeal, the subsequent approval of roads and sewers and the later LDC covering the same works were all related to Phase 1. The Building Regulations commencement that saved planning permission 73/28855 could not have implemented the Phase 2 permission 5/76/0287 because it had not been granted at that time. Although Phase 1, in all its forms, has always made provision for extension into Phase 2, it was a separate permission and, as I have found in paragraph 23, the material operations that saved that permission could not be regarded as a commencement of Phase 2. 32. It therefore seems to me that, while there are records of assumptions and transactions between the Council and the previous landowners on Phase 1, apart from the incorrect admission in their evidence to the Inspector in 1986 and in the letter to Black Horse Agency in 1994 that the 1975 Building Regulations commencement saved the 1978 permission, there is no evidence of a similar assumptions or transactions on Phase 2. I therefore conclude that, while the appellants correctly acted on the transactions with the Council on Phase 1, this did not apply to Phase 2 and that the argument for estoppel by convention is thereby not proven.”
[47]Again it is common ground that estoppel by convention can operate in an appropriate case in the planning context. It requires that the parties have a shared assumption of fact or law on the basis of which they have regulated their dealings and that it would be unjust or unconscionable to allow one of the parties to resile from the shared assumption. In considering the dealings of "the parties", it is accepted that the claimant and previous owners of the land can be treated together: no point is taken on the fact that the claimant acquired the land only in 1994.[48]On this issue the claimant does not contend that the inspector directed himself incorrectly on the law. The submission made by Mr Fookes is that he failed to take into account relevant considerations, namely the very facts which the claimant submits established the relevant course of dealings. There was a course of dealings between 1986 and 1994, encompassing the admission before the 1986 inspector, the position adopted in the draft local plan and the statement made in the letter of 22 June 1994. The inspector did not have proper regard to this in reaching his conclusion that there was no evidence of relevant assumptions or transactions on Phase 2. In particular, he made no reference to the local plan process.[49]I accept that examination of the various stages of the local plan might be considered to evidence a wider course of dealing than emerges from the 1986 decision and the 1994 letter alone and to indicate that over a lengthy period the council consistently treated the Phase 2 land as subject to an existing planning permission. Mr Mould points out, however, that the material before the inspector included very little about the local plan. No extracts from the plan itself were before him. The claimant had not relied on the plan in its written representations to the council and it is rightly not mentioned in the summary of the claimant's case at paragraph 11 of the decision letter. Only brief references were made to it in Mr Richardson's witness statement. Mr Mould submits that in those circumstances it was not necessary for the inspector to make specific reference to the plan in his reasoning on estoppel by convention; that he should not be criticised for failing to mention it, but equally it should not be inferred that he failed to take it into account; and that on the material on before him, taken as a whole, it was reasonably open to him to reach the conclusion that he did.[50]So far as concerns the absence of reference by the inspector to the local plan, I accept Mr Mould's submissions. I have a residual concern that the inspector's overall assessment of the evidence relating to estoppel by convention may have been coloured by his view as to the obviousness of the error upon which the statement in the council's letter of 22 June 1994 was based. The fact that the council's assumption was mistaken and the nature of that mistake should not militate against the existence of estoppel by convention. The concern I have expressed cannot, however, be substantiated by reference to the text of the decision and does not provide an adequate basis for finding against the inspector's decision on this issue. More importantly, if I were wrong in relation to estoppel by representation and the inspector was entitled to reach the decision he did on that issue, then I do not think that there is anything in relation to estoppel by convention that would provide a sufficient ground for quashing the decision.[51]Mr Mould makes the further submission, which he describes as an overarching submission, that if the inspector was right to reject the claimant's case on estoppel by representation based on the letter of 22 June 1994, then it would be neither unjust nor unconscionable to require the claimant to pursue its proposal for development of Phase 2 through the normal planning process and the inspector was entitled to reject the claimant's case on estoppel by convention. In the light of the foregoing nothing turns on that submission, but I should make clear that I do not accept it. Although there might be merit in the substantive point made by Mr Mould, it is not how the inspector chose to deal with the matter and could not provide an adequate basis for sustaining the inspector's decision if his conclusion on estoppel by convention were otherwise flawed.[52]Standing back and looking at the case as a whole, however, I take the view that if the claimant's case on estoppel is to succeed, the natural ground on which it should succeed is estoppel by representation rather than estoppel by convention. The crucial point is that the claimant relied on the representation contained in the letter of 22 June 1994. If that were not apt to found an estoppel, in the circumstances it would be surprising if the claimant were to succeed by reference to a different form of estoppel. In that rather different way I agree with the thrust of Mr Mould's overarching submission. Conclusions[53]That brings me back, however, to my finding that the inspector erred in law in his examination of estoppel by representation. For that reason the claimant's application to this court succeeds. The inspector's decision of 14 June 2001 is quashed and will fall to be reconsidered. * * * * * * * * MR JUSTICE RICHARDS : Judgment in this case is being handed down. For the reasons given in that judgment the challenged decision of 14th June 2001 is quashed. MR TAYLOR : My Lord, I would ask for an order that the first defendant pays the claimant's costs in the amount of £11,150, which is an amount that has been agreed between the parties. MR JUSTICE RICHARDS : £11,150? MR TAYLOR : Yes, my Lord. MR JUSTICE RICHARDS : What do you say about that? MR MOULD : My Lord, I cannot resist the order for costs and I do agree the figure. MR JUSTICE RICHARDS : In that case an order for costs will be made, assessed in that sum. Thank you. MR MOULD : My Lord, I do have an application. MR JUSTICE RICHARDS : Yes. MR MOULD : It is for permission to appeal against your Lordship's decision. MR JUSTICE RICHARDS : Yes. MR MOULD : My Lord, it is for these reasons. Your Lordship has quashed the decision essentially on two grounds. Firstly, that the inspector was not entitled in law to import an objective analysis of the reasonableness of Mr Richardson's reliance upon the Council's representation, it having been established by Mr Richardson's evidence that he had in fact relied upon the letter in question. The second ground is that even if your Lordship were wrong about that, the inspector erred in that he failed properly to take account of the overall factual background in deciding, as he did, and analysing Mr Richardson's reliance on that objective criteria, he had not been entitled to rely upon the statement as he did. My Lord, as to the first point, it is my submission that that is an issue of law which is of some general importance to the planning process. This will not be the last time in which circumstances of this sort arise in the development control process, and a planning authority, seeking, as such authorities do, to assist developers and the public at large by answering enquiries of relative degrees of formality, will make a statement which may, on analysis, be considered to meet certain of the conditions established in the Western Fish case, but where, on analysis, the statement in question may be said to be somewhat incoherent or inconsistent in the way in which the present statement, I think, by common consent, on analysis turned out to be. My Lord, it has clearly been a concern of these courts in the past that it would be wrong to place too onerous a burden in law upon planning authorities in those circumstances, because it would have the effect of inhibiting the sensible dissemination of information on a basis which at least lacks the formality of the formal procedures that are set out in the planning acts, for example, in this case the lawful development certificate procedure, and to encourage authorities to try and be helpful where they can. My Lord, that is the broad public interest in the issue. Looking at the matter on a more -- MR JUSTICE RICHARDS : As regards the broad public interest, it was not in issue before me that the context was one where in principle an estoppel could lie. MR MOULD : No, that is right, and I am not making any submissions in any way seeking to resile from that. It is because of that that I make the submission in effect. MR JUSTICE RICHARDS : It turns, first, on a fairly narrow point of law, of principle though. MR MOULD : Yes. MR JUSTICE RICHARDS : As to whether, in addition to showing reliance, a person seeking to establish an estoppel has to establish that the reliance was reasonable. MR MOULD : Yes, my Lord, that is right, but when one considers how that issue might arise and how it might effect the practice of planning, one can see that it is something that might arise in a number of cases and give rise to those who are less tutored in the law, as it were, to difficulties in perception. MR JUSTICE RICHARDS : Are you aware of cases where anything of this sort has arisen? My experience is not as extensive in the planning field, but I confess that I have not. MR MOULD : I am not aware of any particular ones in my own experience and practice, no. I am simply postulating, I hope reasonably, that it is something that might arise again, because people do make mistakes of this sort. Of course, I am not suggesting -- my learned friend Mr Fookes rightly said that often estoppel will arise precisely because there has been a mistake, but here, of course, the question is whether there was a manifest incoherence and whether that has led to the analysis. My Lord, that is the broad public point. MR JUSTICE RICHARDS : Yes. MR MOULD : As to the narrow legal question itself, as your Lordship has said in the judgment, I repeat the point that there is no authority that either Mr Fookes or I were able to bring before your Lordship directly on the point. Your Lordship has not felt greatly troubled by that because your Lordship has seen the matter in relatively straightforward terms, and I acknowledge that. But I would submit that given the public interest in the matter that I have put forward, and the importance of clear guidance on the point, it would certainly be a matter that would merit consideration by the Court of Appeal, both in the broad terms and also on that narrow legal question as to whether there is indeed, as a matter of law, an objective element brought to bear, particularly in the context of the administrative procedures that we are concerned with here, because it may be that the inspector was right in that context, I would submit, to give some weight to the fact that there was a formal procedure available, that is the section 191, 192 procedure, in the event that obvious incoherence was manifest in the informal response of the officer. My Lord, that is essentially the basis on which I say -- and, of course, I should say that, with respect to your Lordship, I say I have at least a fair chance of persuading the Court of Appeal to take a different view on the point. MR JUSTICE RICHARDS : You have a further difficulty, of course, that even assuming the principle in your favour, I found against you on the facts. MR MOULD : I am now going to turn to the facts. What I say on that is, with respect, if the inspector were right, at least on the principle of law, then, of course, the application of that principle to the facts of the case is first and foremost a matter for him, subject to ordinary questions of Wednesbury and taking account of relevant factors. Your Lordship has said he failed properly to take account of the relevant factual context. My submission is simply that I have at least a reasonable prospect of persuading the Court of Appeal to take a different view from your Lordship on that point and that, in effect, the very representation upon which Mr Richardson essentially, in my submission, based his decision to proceed, that is Mr Oakley's response in June 1994, if that were capable of being analysed in law in the way that the inspector did, the inspector was at least entitled to take the view that he did on, if you like, the internal incoherence and manifest incoherence of that statement. MR JUSTICE RICHARDS : Yes. MR MOULD : That is the basis on which I make the application and invite your Lordship to grant permission on those grounds. MR JUSTICE RICHARDS : Thank you very much. What do you say about that? MR TAYLOR : My Lord, obviously I am coming in at the end of this case. MR JUSTICE RICHARDS : Yes. MR TAYLOR : And am therefore less tutored in the issues than either your Lordship or indeed my learned friend. As I see it, this case turns almost entirely on the application of existing law as set out in Western Fish . There is this narrow issue about objective reasonableness in the reliance, but, as your Lordship has already pointed out, your Lordship, when told to say that even if your findings were wrong on that, on the facts the inspector had erred, and it seems to me, therefore, that this case almost turns entirely on its own facts. There is no real prospect of success on the very narrow point of law, and there is certainly no compelling reason, because this case is confined to its own facts and it is not of significance more generally, as my learned friend suggested. MR JUSTICE RICHARDS : Yes. Thank you very much. I am going to refuse permission. I found against the Secretary of State both on the issue of principle and on the particular facts, even assuming that issue of principle in the Secretary of State's favour. In all the circumstances, I am not satisfied that there is a real prospect of success on appeal or that the case is one of sufficient general importance to merit consideration by the Court of Appeal in the absence of such a prospect. The Secretary of State will have to seek to persuade the Court of Appeal that there is a real prospect of success or that the case is one of sufficient general importance if he wishes to take it further. Thank you very much.