Rastrum Ltd & Anor v Secretary of State for Communities & Local Government & Anor [2009] EWHC 160 (Admin)

Case No CO/11019/2007

Case No CO/11067/2007

[2009] EWHC 160 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 4 th February 2009

Before

SIR GEORGE NEWMAN

(sitting as a Deputy Judge of the Queen’s Bench Division)

Between

RASTRUM LIMITED (1)Claimants

MR R A BENGE (2)Claimant

SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT (1)Defendants

ROTHER DISTRICT COUNCIL (2)Defendant

Anthony Porten QC and Geoffrey Stephenson (instructed by DMH Stallard LLP) appeared for First Claimant

Mr R A Benge, the Second Claimant, appeared in person for in person

Paul Brown (instructed by The Treasury Solicitor) appeared for First Defendant

Hearing Hearing dates: 24 th and 25 th November 2008

Judgment

Sir George Newman :

[1]These consolidated claims brought under section 288 of the Town and Country Planning Act 1990 raise important questions in connection with a proposed development which is said to be designated as an SSSI. It is not necessary for me to decide whether or not that designation still applies.

[2]Rastrum Limited (“Rastrum”) appealed to an Inspector in respect of a decision of Rother District Council (“the District Council”) to refuse a certificate of lawful use relating to land at the Saltings, Harbour Road, Rye, East Sussex. The application for a certificate was made in respect of operations proposed to be carried out over land on the north side of Harbour Road, approximately 2 kilometres to the south east of the historic Town of Rye, and one kilometre to the north west of the settlement of Rye Harbour. The site has a frontage to the River Rother and extends to some 8.09 hectares. The planning history in connection with the site is extensive, dating back to 1979 and including a number of applications between that date and February 2004, being the date of the application for a certificate of lawful use which is the subject of these proceedings. The application was refused by the District Council on 15th July 2004 on the grounds that a permission to develop the site granted in 1981 and the approval in connection with reserved matters, granted in 1985, had lapsed. The District Council rejected the contention that the development had been lawfully implemented, holding that various matters reserved for approval had not been approved in accordance with the conditions attached to the two consents. The appeal was heard at an inquiry on 31st July 2007.

Planning History

[3]In February 1979 an application was made to the County Council for outline planning permission for industry/warehousing/wharfage, marina and waterside housing, yacht club and public facilities at The Saltings, Rye Harbour Road, Rye Harbour.

[4]On 18th March 1981 outline planning permission was granted for the development as described, subject to conditions:

“1. The development hereby permitted must be begun either before the expiration of the period of five years beginning on the date hereof, or the expiration of two years beginning on the date of the notice of final approval of the reserved matters set out in condition 2 below or, in the case of approval on different dates, on the date of the notice of final approval of the last such matter to be approved, whichever is the later date. 2.

(d) Foul and surface water drainage;”

These conditions and other conditions in connection with engineering and harbour works, finished ground levels and the amount of industrial floorspace were imposed to enable the County Planning Authority to regulate and control the proposed development.

(d) Foul and surface water drainage;”

[5]According to the terms of the outline planning permission which had been granted, the development had to be begun either before 18th March 1986 or on the expiration of 2 years beginning on the date of any notice of final approval of the reserved matters set out in condition 2. The application in respect of reserved matters had to be made within the period of 3 years beginning on 18th March 1981.

[6]An application for the approval of the reserved matters was made within the three year period and it resulted in a measure of approval being given, on 31st January 1985 (RR/84/0498), in connection with some, but not all, of the matters reserved by the planning permission RR/79/0400 (the March 1981 permission). Final approval on all matters reserved was not given. Had it been given the developers would have had two years from 31st January 1985 to commence the development. As we shall see, a significant start to the development took place before 31st January 1987.

[7]Although some argument was directed to the detail of the terms of the approval of reserved matters, principally by Mr Benge, who acted in person, as a director of Rastrum, in an endeavour to persuade me that “the start” was not commenced in breach of condition, I do not consider it necessary to lengthen the judgment by reciting the argument. Mr Benge’s central contention was that the work which had been commenced before 31st January 1987 had not been commenced in breach of the conditions of the permission because all the relevant design detail and information had been provided to the District Council. I reject the submission and, in this regard, agree with the Inspector.

[8]Mr Porten QC, leading counsel for Rastrum, advanced Rastrum’s case accepting that the work had been done in breach of condition, namely that one or more of the conditions of the approval, which required more details to be submitted before work commenced had not been complied with, but nevertheless he submitted that a certificate of lawful use in respect of the proposed development should have been granted.

The Commencement of Work and Events in the Ensuring Period to February 2004

[9]On 11th December 1986, about 6 weeks before the expiry of the planning permission, an application was made to the District Council to renew the permission on the same terms as the existing grant. It was followed by a letter dated 7th January 1987 from Chartered Architects, acting for the developer, who wrote to the Chief Planning Officer referring to the two permissions, namely RR/79/0400 CM and RR/84/0498, stating:

“As you are aware the above mentioned planning permission expires on 31 January 1987. As you are also aware our Client has already submitted an application to renew such permission on the same terms. We now understand that the application will not be considered until the meeting on 26th February 1987, though we had been informed that it was to have gone before the meeting on 22nd January 1987. In these circumstances therefore and in order to comply with the requirement of the above mentioned consent, it has been decided to begin the development already approved. Our clients shall therefore, within the next 14 days commence to construct one or more of the road entrances into the site. Unless we hear from you to the contrary, in our opinion (and we have so advised our Client) such work will, if commenced prior to 31st January 1987, preserve the validity of the above mentioned permission. We have informed the East Sussex Council concerning the commencement of these road entrance works. Please let us know as a matter of urgency if you require any further information or other matters to be attended to.”

That letter, as far as the court is aware, received no reply but there was ensuing correspondence. 1987

[10]On 20th February 1987 the Planning Officer wrote to the architects as follows:- “It is noted that work has commenced to the industrial part of the above mentioned site. In the recent past, considerable difficulty has been encountered with gipsies squatting on the land, also considerable dumping of rubbish. This was overcome by the erection of boundary fencing along the road frontage with a locked field gate at the access point. Without prejudice to any future scheme of landscaping or fencing which the Council may require, I would suggest that, as a temporary measure, the site is adequately fenced and secured to prevent any recurrence of the above mentioned difficulties. I should be pleased to receive your comments and indication of any action you are able to take.”

[11]The architects did reply by a letter dated 26th February 1987 stating that they were putting up a boundary fence, that they saw that as a temporary measure and would be making field gates secure so that trespassers could not get on to the site.

[12]Correspondence thereafter ensued in connection with the application to renew. On 6th March 1987 the Planning Officer wrote to Needham & James, solicitors for the developer, as follows:- “I refer to your letter of 8 December 1986 and various telephone conversations about this matter. In the event no application has been registered and the prospective applicants have ceased to seek to make an application. It is understood this follows from commencement of work upon the site prior to the expiry of the previous planning permission.” This prompted a letter dated 18th March 1987 from Needham & James:

“Would you please let us know whether or not you have accepted the works carried out as a specified operation pursuant to section 43 Town and Country Planning Act 1971.”

To that letter the Planning Officer responded on 30th March 1987:

“I should point out that I have no delegated power to “accept” or to not accept the works on behalf of the Council as a specified operation pursuant to section 43 of the Town and Country Planning Act 1971. However, I am prepared to say that in my opinion the work undertaken appears to be an “operation in the course of laying out or constructing a road or part of a road” which is one of the specified operations.”

[13]The status and processing of the renewal application plainly engendered some comment in the local press because on 18th March 1987 the District Council issued a press release in the following terms:

“In the Rye edition of the Sussex Express dated 13 March 1987 allegations were made about Rother Council’s handling of an application to renew a planning permission for a marina development at Rye Harbour Road, Rye Harbour, Icklesham. The Council wishes to make it absolutely clear that there has been no attempt to prevent the renewal of the planning permission previously granted and strongly refutes the suggestion that there was any connection between the problems involving the making of a new application and the independent feasibility study. The facts of the situation are: (i) documents were submitted in an attempt to renew the permission; (ii) these submissions were never registered as a valid planning application because of a series of technical and legal difficulties, none of which were the fault of the Council; (iii) In the event the prospective applicants decided to implement the existing planning permission previously granted to the extent necessary to prevent it lapsing.”

A copy was sent to the Chairman of the Planning Committee and the Chief Executive and Clerk of the Council.

The facts of the situation are:

[14]The court has not seen all the correspondence which was exchanged in the course of 1987 but, in addition to the publicity engendered by the local press, a need arose for the Planning Officer to communicate information to the Director of Administration and Secretary to the Harbour of Rye Advisory Committee. In a letter dated 6th April 1987 it was stated:

“The restrictions on the sequence of the proposed development are contained in a legal agreement between Cornus Properties Limited (the original applicants) and the East Sussex County Council (which granted consent)”

. Thereafter details were set out but the letter only purported to be a summary of part of a fairly complicated document. The letter concluded: “Planning legislation does not require the Council to formally acknowledge or otherwise that a planning permission has been implemented. Therefore at this point the Council has not expressed a formal opinion. The site has been visited and photographs taken. It is my personal view that the work undertaken amounts to a “specified operation” for the purposes of section 43 of the Town and Country Planning Act 1971 (an operation marking the beginning of a development)”.

[15]Amongst the correspondence which is in the bundle, in particular a letter dated 8th May 1987 from the Planning Officer to the developer, more light is shed on the “technical and legal difficulties” which led to the non-registration of the renewal application. There had been confusion as to who were the present owners and there was a need for clarification. The Planning Officer stated:

“Since some work has been undertaken at the site pursuant to planning permission RR/84/0498, it is assumed that you do not now wish to proceed with your application dated 11th December 1986, and therefore in accordance with departmental practice I herewith return your forms and plans, whilst retaining one set for my records. If however you do wish to have this application determined please return the documents together with your cheque for £5,300 in respect of the requisite fee, together with either a reiterated statement that you are the owners of the land together with some evidence thereof, or alternatively amended application forms advising that proper notice has been served”

. This invitation to continue with an application for renewal was not taken up by the owner. In my judgment, the failure to take up the invitation presents well nigh insuperable difficulties in treating the District Council’s conduct to this date as providing a basis for the creation of a legitimate expectation. 1989

[16]In August 1989 development of the site, referred to as application number RR/89/1392, was the subject of consultation with the East Sussex County Council. In a document dated 25th August 1989, headed “East Sussex County Council Strategic Planning Representations”, the County Planning Officer set out a history in connection with the development. By this date it is plain the County Council was concerned to have discussions with the District Council about the development of the site, because the “potential economic benefits and the ecological disbenefits of a marina on the site had changed”. The County Council’s view was that the proposal was in conflict with policies to protect the wildlife interest to the area and, in particular, to protect sites of special scientific interest. The general position being taken up was that “it should not be permitted in advance of the conclusions of the study of the wider area”. Under the heading “Proposed Development” the County Planning Officer summarised the position as follows:

“As a result of a determination by the County Council under previous legislation, valid planning permission exists for the development of the site with a marina, associated housing, industry and public facilities (Ref. RR/79/400(CM)). Legal agreements commit the developer of this proposal to provide a footway along Harbour Road and to phase the construction of the development. In particular it requires a substantial completion of the marina basin and associated engineering work before construction of housing commences. The permission was granted on the basis that the potential economic benefits of the scheme were likely to outweigh the identified environmental and ecological disadvantages.”

The reference to legal agreements echoes the contents of the letter dated 6th April 1987 to the Director of Administration and Secretary to the Harbour of Rye Advisory Committee wherein a summary was given of a legal agreement between Cornus Properties Limited and the East Sussex County Council. The agreement or the agreements were not before the Inspector and are not before the court.

[17]Application RR/89/1392 was for the construction of a marina/lock gates with flood protection works. The application was made by Montrose Holdings who, shortly thereafter, sold the site to J. Alsford Limited. Montrose Holdings, by an application in 1987 numbered RR/87/0749, had made an application for outline planning application for the erection of 97 houses and flats with a marina and shop units, industrial warehousing and wharfage. Delegated approval had been given subject to a legal agreement, but the legal agreement was not completed. The 1989 application was not determined but the conclusion of the County Planning Officer was: “Consideration of the 1987 proposal indicated that the decision, as to whether the proposal was acceptable was fairly balanced. Consideration of this similar marina scheme leads to the same conclusion. With the increased importance attached to ecological matters further outweighing any likely economic benefits arising from the proposed scheme, added to doubts about the quality and location, the balance has tipped the other way. However, it is not satisfactory to reject completely the use of the site for a marina in the absence of conclusions on potential sites in the area which may fulfil the strategic planning policies to provide a marina and/or moorings”. 1990-1992

[18]By 1990 it appears that at least the following applications had been made in connection with development at the site:(i) RR/79/0400 – outline planning permission. Approved in 1981 with Section 52 Agreement covering (1) highway improvement, (2) phasing of development and (3) limits on industrial floorspace and various other obligations;

(ii) RR/84/0498 (sometimes erroneously referred to as “… 0489) – approval of reserved matters;

(iii) RR/87/0749 – outline permission for houses/flats and other development. Delegated approval given subject to a legal agreement which was not completed;

(iv) RR/89/1392 – application not determined.

[19]In December 1990 J. Alsford Limited, having recently acquired the site, applied for outline permission (application number RR/90/2641/P). On 7th December 1990 the Planning Officer reported to the Committee. When referring to RR/84/0498 he observed: “Work commenced on the formation of a vehicular access to this site in order to “implement” the permission and keep it alive”.

[20]Alsfords’ application was “predominantly” the same as RR/79/0400 and the proposals in RR/87/0749. The County Planning Officer is recorded as being against the 1990 application as he had been against the 1987 application (RR/87/0749).

[21]Having reviewed the effect of the representations from third parties, the Planning Officer stated in his section, headed “Summary”, as follows: “There is a valid consent on the site for marina/housing and the industrial/warehousing and the current application seeks variation of the scheme….. In February 1988 you were prepared to agree to the increase of residential units …”.

[22]The recommendation to the Committee was to grant outline planning permission with a Section 106 Agreement and “discussion with ESCC”. A Section 106 Agreement dated 25th August 1992 was signed, the parties being J. Alsford Limited, Rother District Council and East Sussex County Council and Barclays Bank plc (as mortgagee). Rastrum and Mr Benge submit that it would be an abuse of power for the District Council and the County Council to support enforcement action against the proposed development because to do so would flatly contradict the terms of the Section 106 Agreement to which each was a party.

[23]The following provisions are particularly relevant. The recitals:(1) Clause 10 “On the 18 March 1981 the County Council granted outline planning permission in respect of the said application RR 79 0400 (“the 1981 permission”) and on 31 January 1985 the District Council approved the matters reserved from the 1981 permission under reference RR 84 0498 (“the 1984 approval”)”;

(2) Clause 11 “The 1981 permission and the 1984 approval were implemented to the extent only that works were carried out to an access which for the purposes of identification only …..”.

(3) The agreement, clause 3 “The District Council agrees to grant the application upon the execution of the Agreement by the other Parties hereto and this Agreement shall come into effect upon the grant of the application Provided that in the event that the Company does not implement the permission so granted by the carrying out of a material operation … nothing in this Agreement shall oblige the Company to carry out any works or (save as mentioned in clause 2) pay any monies to the County Council”. Clause 2 obliged the Company to pay reasonable administrative costs.

(4) Clause 11 “The 1981 Agreement and the Section 278 Agreement are hereby revoked and shall be of no effect ….”.

(5) Clause 12 “The covenants obligations and other stipulations on the part of the Company shall be enforceable … against all persons deriving title to the land …”.

(6) Clause 15 “In the event of the District Council or the County Council resolving to make an order under section 97 of the 1990 Act revoking or notifying the 1981 permission and the 1984 approval the Company will not oppose the order and no claim whatsoever shall be made against the District Council or the County Council by the Company … and the Company hereby indemnifies the District Council and the County Council against all claims …”.

(7) Clause (h) of Schedule 2: “Save for so much of the development as has been previously carried out [recital 11] no development whatsoever of the land shall be carried out in pursuance of the 1981 permission and the 1984 approval”.

[24]Rastrum purchased the site in 1996. The 1992 permission expired and the Councils took no steps to revoke the 1981 permission or the 1985 approval.

[25]For completeness, I should refer to a part of the Rother District Local Plan (Initial Deposit) January 2001. At paragraph 6.65 the following is recorded:

“The planning permission that had expired on that site for a marine and employment development was thought to have lapsed but the legal opinion appears to indicate that the permission is still valid …”

The Inspector’s Decision Letter (“the DL”)

[26]At paragraph 4 of the DL the Inspector stated that the main issue was encapsulated in paragraph 8 of the Statement of Common Ground submitted for the appeal. It stated:

“8. Area of disagreement. It is not agreed that the said access works did, as a matter of law, implement the planning permission”

. This broad expression of the issue shed no light on the several issues of law which would be raised by the disagreement. Having adopted it as the correct formulation of the main issue, the Inspector added:

“… The onus is upon the appellants to demonstrate, on the balance of probabilities, that the access on to the highway was lawful at the time those works were carried out”

. It has to be said that this was only part of the case. The application for a certificate of lawful use had not been made in relation to the access works carried out in 1987, but in relation to the proposed development of the site. Further, the issue as to whether the works were lawful at the time they were completed was not determinative of the appeal. Even if the works were unlawful when they were completed, if enforcement action in connection with the works was no longer possible, it was necessary to consider whether the works had to be regarded as lawful. Yet further, the application raised an issue as to whether Rastrum enjoyed the benefit of a substantive legitimate expectation that the proposed development had to be regarded as lawful and/or that for the District Council to act otherwise would amount to an abuse of power. “… The onus is upon the appellants to demonstrate, on the balance of probabilities, that the access on to the highway was lawful at the time those works were carried out”.

[27]At paragraph 12 of the DL the Inspector, rightly in my judgment, criticised the form of approval of the reserved matters, on the ground that they had the effect of preventing the development of any matter which had been approved before a long list of further conditions had also been satisfied. The terms of the approval on the reserved matters have, in my judgment, contributed to the uncertainty surrounding the opinions which have been expressed and have contributed to the complexity to which the history has given rise.

[28]The Inspector summarised his conclusion on the main issue as follows (DL paragraph 18):

“I am of the opinion that on the narrow point before me, set out at paragraph 4 above, my reasoning does not need to go any further. However, much of the inquiry’s time was spent on determining whether, based on the local planning authority’s and other public bodies’ actions and decisions over a long period after 31 January 1987, the appellants enjoyed a legitimate expectation that a lawful start had been made on the development, such that it could still be completed today without breaching planning control. This matter cannot be ignored and I address it below”

. The Inspector concluded that he did not “need to go any further” because, having examined the conditions of the 1984 approval, he had concluded the works had been commenced unlawfully.

[29]The Inspector referred to the history. It will be sufficient for this judgment if I pay particular attention to paragraphs 22 and 23 of the DL.

[30]The history discloses there had been changes of mind by and differences of opinion between the District Council and the County Council. As to this, the Inspector observed (paragraph 22):

“… it should not be overlooked that several of these administrative decisions were taking place against a background of shifting judicial authority. The section 106 obligation, based on the earlier committee report, is almost contemporaneous with Whitley and some time would need to elapse before the full implications of this important Court of Appeal decision could be absorbed at local level. The Hart Aggregates judgment may have reined in some of the more extreme interpretations placed on Whitley by some planning authorities, but it post dates the local planning authority’s apparent change of heart after its statement on what was in any event only an early version of an emerging unadopted Local Plan. I remain convinced that the Council’s current interpretation of the legislation of when a start has been made, as interpreted through case law, is the correct one, for the reasons I have set out in paragraphs 5-17 inclusive above. In these circumstances, it would have been wrong for the Council to continue to argue that there was still a valid planning permission on the appeal site … if it thought that notion was fundamentally unsound”

. I would not question the broad proposition that the planning authority was entitled to review its position where the law changed or developed but, in my judgment, a real issue arose as to whether, after it had entered into a section 106 Agreement on one basis, it was open to the District Council to change its view on the lawfulness of the commencement operations and to exercise its powers so as to refuse a certificate on a contradictory basis.

[31]When turning to the issue of whether or not enforcement action would amount to an abuse of process, the Inspector stated (paragraph 23) and concluded (paragraph 24):

“23. The other matter on which I was addressed at considerable length was, on the authorities of R ex p Hammerton & London Underground Ltd v English Heritage, The Prince’s Foundation, LB Tower Hamlets, LB Hackney & Railtrack plc (in administration) (Document 14), R ex p Prokopp v London Underground Ltd (Document 17) and Norris v First Secretary of State & Stoke-on-Trent City Council (Document 19), that it would be an abuse of power if the local planning authority took enforcement action at this juncture against development that was implemented as closely as possible to planning permissions RR/79/0400 and RR/84/0498. With the greatest respect to the submissions made on this point, there seems to me to be considerable confusion between the Council taking enforcement action, if development were to proceed with the form of operational development so far approved on this site, and whether going down that road would, in itself, constitute a breach of planning control, which is, in effect, all that I am being asked to consider that this juncture. It seems to me to be worth emphasising that my decision in this instance simply means that, were the local planning authority to invoke its discretionary enforcement powers at this time, the appellants would not be able to rely on the defence in any subsequent appeal that the resultant operational development, carried out in any attempt to implement these planning permissions, would be immune from enforcement action because it was lawful. Conclusions 24. For the reasons given above, and having regard to all other matters raised, I conclude that the Council’s refusal to grant a certificate of lawful use or development in respect of erection of industry/warehousing/wharfage, marine and waterside housing, yacht club and public facilities, in accordance with planning permissions RR/79/0400 and RR/84/0498, on land at The Saltings, Harbour Road, Rye Harbour, Icklesham, East Sussex, TN31 7TE, was well-founded and that the appeal should fail. Accordingly, I shall exercise the powers transferred to me in section 195(3) of the 1990 Act as amended.”

Conclusions

[32]I have found paragraph 23 difficult to understand, but I believe it demonstrates that the Inspector did not regard the “abuse of power” issue as extending beyond or giving rise to any issue other than the lawfulness of the commencement works. I take the last sentence of paragraph 23 to mean that since the commencement was not lawful it would be open to the local authority to take effective enforcement action against any further operational development. In my judgment, the argument plainly went further and the Inspector should have considered whether the agreement of the District Council and the County Council to the terms of the section 106 Agreement prevented future enforcement against further operational development because such action would contradict the basis of its lawful exercise of power in entering into the section 106 Agreement.

[33]I am bound to say that, from the terms of paragraphs 22 and 23, it looks as though the argument on abuse of power had, at least in part, depended upon the operation of the Whitley principle and that it had been suggested that if future operations were “implemented as closely as possible to the planning permissions” no enforcement action could be taken against them (see paragraph 23, in particular). If that was the argument the Inspector was correct to reject it. Sections 191 and 192 Town and Country Planning Act 1990 (substituted with effect from July 27th 1992 by the Planning and Compensation Act 1991)

[34]Section 191 enables an application for a certificate of lawfulness to be made in respect of any existing use of land and any operational development that has been carried out on it, and any past breach of a condition or limitation in connection with the land. Section 192 applies in similar respects to a proposed development.

[35]Rastrum made an application under section 192 in relation to a proposed development “in relation to the implementation of a planning permission” which it claimed was extant (see letter dated 12th February 2004). Rastrum purchased the site from J. Alsford Limited in 1996 and supported its section 192 application on the ground that the planning history and documents emanating from Rother District Council gave rise to a legitimate expectation that planning permission existed in connection with the proposed development of the site. The letter dated 12th February 2004 also submitted:

“On the other hand if you feel that Counsel’s 2nd Opinion should prevail, then it follows that his view that … “the works were undoubtedly carried out” but they were in breach of conditions is correct. Then it follows that your Council is clearly out of time in which to enforce against these breaches, thus they are lawful and have implemented the consent”

. I can see no reflection of this argument in the DL.

[36]I am satisfied that Rastrum clearly raised the contention that the works which had been carried out prior to 31st January 1987, even if done in breach of condition, had now to be regarded as lawful because enforcement action could not now be taken against the works. It is not clear how the argument was put at the appeal, but, as I have said, it is clear the Inspector did not deal with it.

[37]I have said enough to illustrate how the issues to be decided under sections 191 and 192 can overlap. Having considered the initial application from Rastrum, the appeal documents, the DL and the grounds before this court (as amended at the hearing) I am satisfied that the case gives rise to a need for one or more of the following issues to be determined:(1) Whether the proposed development can be lawfully implemented under the planning permission and approval RR/79/0400 and RR/84/0498 because the construction of the access road to the site commenced before 31st January 1987 amounted to a lawful operational development pursuant to the permission and approval because either: (a) the access road was not commenced in breach of condition; or (b) if it was commenced in breach of condition the operations are to be regarded as lawful because they are now immune from enforcement.

(2) Whether the proposed development can be lawfully implemented because the District Council or the County Council have created a legitimate expectation that the said permission and approval are extant;

(3) Whether the proposed development can be lawfully implemented because the District Council or the County Council have created a legitimate expectation that the said permission and approval had been validly implemented and was therefore extant (see Skeleton Argument of the First Defendant at paragraph 2);

(4) Whether it would be an abuse of power for the District Council to take enforcement action against the proposed development on the ground that there was no extant permission or approval.

The Law

[38]The Inspector’s consideration of Whitley & Sons v Secretary of State for Wales

(1992) 64 P & CR 296

and R (Hart Aggregates Ltd) v Hartlepool Borough Council

[2005] EWHC 840 (Admin)

was very much in point on the issue as to whether the operations for the construction of the access road had been carried out in breach of condition. The “rule in Whitley” allows for exceptions to the general rule that operations commenced in breach of condition do not operate so as to keep a permission alive. The cases would have required consideration by local authorities and I have no doubt the District and County Council gave them consideration. Whether it was the cases which caused the “changes of mind” or not is not so clear and, if I am wrong on the short basis upon which I have concluded the applications should succeed, further consideration of the facts will be required.

[39]The judgment of Ouseley J. in R (Hammerton) v London Underground Ltd

[2002] EWHC 2307 (Admin)

appears to me to contain the most helpful summary of the true position. On facts not dissimilar to those presently under consideration, the judge had to consider whether a material operation had been carried out, whether any conditions had not been complied with when the works were carried out and what significance flowed, on the facts, from a commencement in breach of planning control. He also gave consideration to the cases on legitimate expectation.

[40]The judgment is particularly helpful at paragraph 98 onwards. At paragraph 112 the judge noted that in Leisure Great Britain plc v Isle of Wight CC

(1999) 80 P & CR 370

, Keene J (as he then was) had rejected a suggestion that the Whitley principle was akin to an equitable jurisdiction operating in accordance with what was fair and reasonable. Rather it is to be regarded as recognition that, in particular circumstances, there can be exceptions to the general rule.

[41]At paragraphs 123-134 Ouseley J. distilled a number of points from the cases. I respectfully adopt his summary.

[42]As to the issue identified by me at paragraph 37(1)(b) above, he observed:

“130.(8) However, if after the expiry of the five year period, it is possible to conclude that enforcement action is not lawfully possible, I see no reason why the development which cannot be enforced against should not be regarded as effective to commence development.”

[43]As to the issues identified by me at paragraph 37(2) and (3) above, the following principles, having a special bearing in planning cases, can be extracted from Ouseley J’s judgment and the cases to which he refers:(1) Legitimate expectation is an established public law principle but: “The court should in my view be very slow to find that the principle of legitimate expectation operates so as to keep alive a planning permission that has on the face of it expired because there was no lawful commencement of the development within the time laid down; or, to pursue the matter to the conclusion sought by the claimant in this case, to find that it operates so as to require the grant of a certificate of lawful development in circumstances where on a proper analysis the development would be unlawful.” (Richards J in Coghurst Wood Leisure Park Ltd. v Secretary of State for Transport, LocalGovernment and the Regions [2003] JPL 206).

(2) The proper application of planning law is not something which should be side stepped by means of a “bilateral agreement between the developer and the local planning authority” (Henry Boot Homes Ltd v Bassetlaw DC

[2003] 1 P&CR 372

(3) “The interests of third parties and the public in such matters also greatly reduce the potential for a legitimate expectation … to arise…. It is possible that circumstances might arise where it was clear that there was no third party or public interest in the matter and a court might take the view that a legitimate expectation could then arise from the local planning authority's conduct or representations…”. (Henry Boot paragraphs 55-56).

The application of the law to the facts of this case

[44]Although Rastrum raised the contention that the commencement works must by reason of the passage of time be immune from enforcement and therefore regarded as lawful, it is not clear the point was raised before the Inspector. It was only raised in these applications by an amendment after the court had drawn attention to the point. Permission to amend was granted because the point had been raised at the outset and response to it involved legal argument only.

[45]Counsel for the Secretary of State, Mr Paul Brown, prepared clear and impressive written submissions which included reference to Rastrum’s reliance upon the case of Hammerton. In response to the submissions advanced by reference to the amended ground, Mr Brown submitted that the Inspector had been correct to focus on the question of enforcement in relation to the proposed development. In his Skeleton Argument (paragraph 57) he had accepted the Inspector should have considered it as going beyond the arguments on the Whitley principle and as involving Wednesbury considerations and an abuse of power. That said, Mr Brown maintained that the question whether enforcement action could be taken was relevant not to the works carried out but the development to be carried out.

[46]In my judgment the position is clear. When the period allowed for taking enforcement action against the operations carried out in 1987 expired, the operations, which had been carried out in breach of condition became lawful. That being so, the development was lawfully commenced and the 1981 permission and 1984 approval are extant. It follows that the District Council should have granted a certificate of lawfulness in connection with the proposed development. The Inspector erred in not allowing the appeal on this ground.

[47]The above conclusion is sufficient to dispose of these applications. Nevertheless I shall state my conclusions on the other issues.

Legitimate Expectation and Abuse of Power

[48]I do not propose to carry out an extensive review of the law in this area. The following principles appear to me to be well established (see R v North East Devon Health Authority ex parte Coughlan

[2001] QB 213

; R v Leicester City Council ex parte Powergen

[1999] 4 PLR 91

):(1) Legitimate expectation is based on the concept of fairness expected from public bodies in the exercise of their statutory functions. The concept of abuse of power is a related principle of fairness which governs a public authority in its dealing with citizens.

(2) There can be no legitimate expectation that a public body will confer a substantive benefit or extinguish an obligation when it has no power to do so.

(3) The courts should not, in the field of public law, introduce and apply principles derived from private law, unless expressly authorised by Parliament to do so, or if it is necessary to give effect to the purposes of the legislation.

(4) “The court should in my view be very slow to find that the principle of legitimate expectation operates so as to keep alive a planning permission that has on the face of it expired because there was no lawful commencement of the development within the time laid down; or, to pursue the matter to the conclusion sought by the claimant in this case to find that it operates so as to require the grant of a certificate of lawful development in circumstances where on a proper analysis the development would be unlawful” (Richards J (as he then was) in Coghurst).

(5) Statutory procedures and powers cannot be sidestepped or bypassed by private agreements between a developer and planning authority or by mere inaction on the part of a local authority. Planning law, controlling development in the public interest, cannot be implemented so as to exclude the public from being involved in decision making (see Henry Boot Homes v Bassetlaw DC

[2003] 1 P & CR 23

(6) In an area of law where the applicable principles are being developed and changed it must be open to a public authority to take account of changes in the law and where it would not be unfair and an abuse of power to do so, to “change its mind”.

Application to the Facts

[49]I have concluded that the conduct and statements of the local authority up to the date of the section 106 Agreement dated 25th August 1992 are insufficient to have created a legitimate expectation upon which Rastrum can rely that the 1981 permission and 1985 approval are to be regarded as being extant and to entitle Rastrum to the requested certificate of lawfulness:(1) The developer elected not to take up the invitation of the local authority to have the 1987 renewal application determined.

(2) Views expressed prior to the above invitation were the views of the planning officer, not the Council. They were explicitly qualified.

(3) The views subsequently expressed which led up to the section 106 Agreement in 1992 reflect differing opinions against a changing legal context.

The 1992 Section 106 Agreement

[50]This conduct on the part of the District Council and the County Council requires closer analysis.(1) By entering into the section 106 Agreement the authorities were discharging a statutory function. It has to be said a statutory function in connection with an application for the same site and a similar but not identical development. Clearly the interests of the public had been adequately represented in connection with the application.

(2) The local authorities intended to and did enter into fully binding legal obligations in connection with the development. The agreement imposed obligations on the developer and successors in title to the land, the subject of the development. The issue is whether the express basis upon which the parties to that agreement accepted their obligations can, notwithstanding that the Agreement was not implemented, be read as having given rise to any benefit or right upon which Rastrum can rely.

(3) Clause 11 of the Agreement refers to the implementation of the 1981 permission and the 1984 approval by works being carried out. The acts of “implementation” are not qualified as “purported” or “unlawful”. Implementation could not have occurred unless the works had amounted to lawful “commencement”. The clause constitutes a clear representation that the 1981 permission and 1984 approval had been lawfully commenced.

(4) Clause 15 constitutes a clear statement that the 1981 permission and the 1984 approval were capable of being the subject of a section 97 application revoking or modifying the same. The developer (and successors in title, see clause 12) agreed not to oppose such an application. The effect of the section 106 Agreement was that the developer agreed not to proceed on the 1981 permission and 1984 approval if the 1992 permission was implemented or if the 1981/84 permission was revoked.

(5) In my judgment, the local authorities clearly accepted legal obligations and conducted themselves upon the basis that the 1981/84 permission was extant. A third party coming to the Agreement, like Rastrum, would not have been left in doubt that in 1992, at the date of the section 106 Agreement, the Agreement constituted the authorities’ publicly stated position in connection with the 1981/84 permission.

[51]Mr Brown did not press any argument in an attempt to qualify the unambiguous character of the section 106 Agreement. His principal submission, on the facts, was that by 1992 the 1981/84 permission had lapsed. That being so, the District Council could not act outside its statutory powers and confer a substantive benefit by the Agreement. It could not, as he put it, breathe life back into the lapsed permission.

[52]It seems to me that it is critical to examine the impact of the local authority’s conduct not only by reference to the power it had when it signed the 1992 section 106 Agreement, but by reference to the powers it had when considering the section 192 application. One can take Rastrum’s case to be that it acquired the land having notice of the terms of the 1992 Agreement and as the successor in title to J. Alsford Limited and that it is entitled to rely upon the public statements made by the local authority duly made when it was acting pursuant to its statutory authority. That said, this is an inference because there are no facts found by the Inspector on the question.

[53]Section 192(2) provides: “(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or 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”.

[54]Mr Brown submitted that, since approval had not been sought for all the reserved matters, it was inevitable that if Rastrum could rely upon a legitimate expectation or abuse of power to resist enforcement in the future:(i) the development would take place unlawfully and there would be no means of enforcing the terms of the 1981/84 permission;

(ii) consequently the public interest would not be adequately protected.

[55]It seems to me that this argument may assert too much. If the legitimate expectation created by the 1992 Agreement is that, as between a developer of the site and the local authority, the works/operations done in 1987 commenced the development, then Rastrum cannot avoid the conditions imposed by the 1981/84 permission; they must be complied with and they can be enforced. Mr Brown’s submission may, however, have more force in connection with planning and environmental issues which have arisen in more recent years. Against the submission, it must be noted that an application for planning permission for substantially the same type of development was granted in 1992. The countervailing factors have not been considered and determined.

[56]It seems to me that this case is, potentially, like no other. The considerations which weigh most persuasively upon me are that:(1) a case can be made for a local authority to be held to public statements made by it in the course of the discharge of its statutory functions;

(2) whilst a statement may be made upon the basis of a view of the prevailing law, which subsequently the local authority may have cause to doubt was the correct view, a citizen is entitled to some certainty being attached to a public statement which is made in the exercise of a statutory function;

(3) where the balance of fairness in favour of the claimant is overwhelming, a local authority may be held to its previous position.

[57]The cases in which a legitimate expectation can arise are rare but, in my judgment, this may be a rare case. Close and careful consideration needs to be given, with the benefit of all the facts, in circumstances such as this, where a local authority seeks to go back on a public statement lawfully made which has given rise to legal obligations. It seems arguable that to permit departure from the terms of a section 106 agreement for no other reason than a “change of mind” or opinion about the law could give rise to a degree of arbitrariness in decision-making which could amount to an abuse of power. I have concluded that an arguable case has been disclosed justifying further investigation into whether a legitimate expectation was created that the District Council would not, when considering the section 192 application, dismiss it on a ground which contradicted its own lawfully stated position in 1992. Further investigation of the facts is required before a court could conclude that on this occasion the decision to refuse a certificate constituted such a variation from the District Council’s stated position as to make it an abuse of power.

[58]In order to weigh the balance of fairness and the public interest, more evidence is required which is directly adduced to the issues I have identified. I have concluded that, contrary to Rastrum’s submission, the court is not in a position to reach a conclusion on the issue of legitimate expectation and/or abuse of power. The evidence before the Inspector was too scant. For example, on my view of the law, in order for Rastrum to succeed it seems clear to me that reliance by it and the consequences of reliance would have to be in evidence so as to establish an overwhelming case of unfairness. Whether the company had legal advice available is not clear. The reasons for the change of position by the District Council have not been sufficiently explained. Indeed, it is not clear what evidence there was on this issue. Nor has the possible prejudice to third party interests been properly explored. Further, I should add that I have concluded that the Inspector’s narrow approach to the issues before him prevented him from properly considering and weighing the material which was before him.

[59]It follows that if I am wrong to have concluded that because the commencement operations cannot be enforced against, they must be regarded as lawful, then I have concluded that the applications nevertheless succeed to the extent that the other issues need to be remitted in order to be properly considered.