R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8

Reprotech bought a waste treatment site and claimed a council committee resolution varying a planning condition amounted to a binding determination that generating electricity needed no fresh planning permission. The House of Lords disagreed, allowing the council's appeal and rejecting estoppel arguments in planning law.

Facts

In 1989 East Sussex County Council constructed a waste treatment plant near Bexhill, vested in its subsidiary East Sussex Enterprises Ltd (ESEL). In 1990 ESEL sought to sell the plant. Prospective purchasers raised the question of whether using the treated waste to generate electricity would constitute a material change of use requiring planning permission. Counsel’s opinion (Mr Roy Vandermeer QC) was that it would not, and the County Planning Officer informally agreed. However, no formal application for a determination under section 64 of the Town and Country Planning Act 1990 was made.

The existing planning permission contained condition 10, restricting the hours during which power-driven machinery could operate. Because electricity generation requires continuous operation, ESEL applied under section 73 of the 1990 Act to vary condition 10. On 27 February 1991 the Development Control Sub-Committee resolved, subject to an agreed noise attenuation scheme, to authorise the County Planning Officer to delete condition 10 and substitute a new condition exempting turbines and equipment for generating electricity.

Reprotech later purchased the assets for £5.7 million, knowing of the resolution. No permission was ever formally issued pursuant to the resolution, and in 1992 ESEL withdrew the application from the register. In 1998, after correspondence with the council, Reprotech sought declarations that either the planning officer’s statements or the committee resolution constituted a determination under section 64 that no further permission was needed to generate electricity, and sought mandamus to compel issue of a permission.

Issues

The principal issues were: (1) whether the committee resolution of 27 February 1991 amounted to a statutory determination under section 64 of the 1990 Act that no further planning permission was required for electricity generation; (2) whether, if not, the County Council was nonetheless estopped (by representation or convention) from denying that position; and (3) whether the court had jurisdiction to grant a declaration that electricity generation did not require planning permission.

Arguments

Reprotech argued that the resolution, read against the planning officer’s report which treated the permission question as a key issue, could only sensibly be understood as a statement by the council that no further permission was needed, and that on the authority of Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 no formal application was required for a determination. Alternatively, it was said that the council was estopped from denying the position, and separately that the judge’s third declaration rested on a factual finding that generating electricity was not a material change of use.

The County Council argued that a determination under section 64 is a statutory juridical act with specific procedural requirements (application, entry on register, consultation with district authority, opportunity for the Secretary of State to call in, written notification) none of which had been satisfied. It denied any representation capable of founding an estoppel and contended that private law estoppel had no proper place in planning control.

Judgment

The House of Lords unanimously allowed the appeal. Lord Hoffmann delivered the leading speech. On construction, he doubted that the resolution was even intended to state that no further permission was required; developers often proceed in stages, and the committee may simply have been content for ESEL to rely on informal views.

More fundamentally, a determination under section 64 is a juridical act whose legal consequences flow from compliance with the statutory scheme. Five features were identified: it follows an application giving details of proposed and existing use; it is entered on the public register; the district planning authority must have the opportunity to make representations; the Secretary of State must have the opportunity to call in; and the decision must be communicated in writing. The procedure engages the wider public interest and cannot be circumvented by informal agreement. Whatever the position in Wells, the present resolution was only a conditional authorisation to issue a permission, with no immediate legal effect, and could not impliedly constitute a binding section 64 determination.

On estoppel, Lord Hoffmann held there was no material to found one even as between private parties: the planning officer’s opinion could not reasonably be taken as a binding representation, and the resolution was not such a representation either. More importantly, private law estoppel concepts should not be imported into planning law. Drawing on Lord Scarman in Newbury District Council v Secretary of State for the Environment [1981] AC 578, and citing Dyson J in R v Leicester City Council, ex p Powergen UK Ltd [2000] JPL 629, Lord Hoffmann said there was only an analogy with the public law doctrine of legitimate expectation (as developed in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213), which must take account of the wider public interest and Convention rights. The earlier approach in cases such as Wells and Lever Finance Ltd v Westminster (City) LBC [1971] 1 QB 222 was a product of an era when public law concepts were undeveloped, and public law had now absorbed what was useful from estoppel and should stand on its own two feet.

On the third declaration, Lord Hoffmann held the judge had not made an independent factual finding that electricity generation was not a material change of use; the declaration was merely a corollary of the finding of a section 64 determination. In any event, following Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 and the statutory changes considered in Thrasyvoulou v Secretary of State for the Environment [1990] AC 273, the exclusive route for challenging whether permission is required is through the statutory procedures, and a declaration of this kind would serve no legitimate purpose.

Lord Mackay agreed, adding that under section 73(2) the authority must have regard to the scope of the existing permission when considering conditions, but doing so does not convert the exercise into a section 64 (or section 192) determination. He expressly agreed that public law in this area should stand on its own two feet.

Implications

The decision is significant for two reasons. First, it clarifies that a determination under section 64 of the Town and Country Planning Act 1990 (and, by extension, a certificate of lawful use under section 192) is a statutory act with prescribed procedural requirements engaging the wider public interest, and cannot be created by implication from a resolution dealing with different matters or by informal indications from planning officers. Developers cannot rely on committee side-statements or officers’ opinions as binding determinations; a formal application is required.

Secondly, and more broadly, the case marks an authoritative rejection of the use of private law estoppel in planning law. Lord Hoffmann’s observation that public law should stand on its own two feet signals that the proper doctrinal home for protecting those who act on statements by public authorities is the public law concept of legitimate expectation, subject to considerations of public interest and Convention rights. This does not abolish protection for those who act to their detriment on the basis of official statements, but requires such claims to be framed and evaluated within the public law framework, including judicial review principles and abuse of power analysis as in Coughlan.

The case is important for planning practitioners, local authorities and developers: informal advice from planning officers, however helpful, is not binding; statutory routes must be used; and challenges to enforcement on grounds of no permission must follow the statutory appeal procedures rather than collateral declaratory proceedings. Limits of the decision include that the House did not decide whether Wells was correctly decided, nor whether an actual grant of planning permission pursuant to the resolution would have amounted to an implied determination.

Verdict: Appeal allowed. The originating summons and the application for judicial review were dismissed. The committee resolution of 27 February 1991 did not constitute a determination under section 64 of the Town and Country Planning Act 1990, no estoppel arose, and the declarations and mandatory order made below were set aside.

Source: R (Reprotech (Pebsham) Ltd) v East Sussex County Council [2002] UKHL 8