In what seems to be the never ending battle in obtaining the requisite notices to show a successful discharge of planning permission conditions, it seemed appropriate given the recent ruling of Food Convertors Ltd v Wiltshire Council [2016] [1]to review the position between estoppel and planning law to see if the production of documentation other than a formal planning notice would be a suitable and reliable way to proceed.

Estoppel – what does this mean?

Estoppel is an equitable doctrine in the common law and is defined as a bar raised by the law that impedes someone from alleging and/or denying a certain statement of fact that is contradictory to their prior position or allegation.

The reason this could be relevant to planning law is that on numerous occasions in lieu of a formal notices, developers are providing schedules or simply letters from planning officers or architects/specialists to show that they are recommending discharge.  The question is can these documents to be relied upon ie would the Local Authority be prevented from taking enforcement action in light of comments and documents provided by planning officers.

Food Convertors Ltd v Wiltshire Council (2016)

In the abovementioned case, the claimant was granted planning permission in 1997 for a sports pitch, children’s play area, car park and access with Grampian conditions attached regarding landscaping (condition 4) which is the focal point in this case.  A further planning permission was entered into in 1999 for repositioning the access road again with Grampian conditions attached. The claimant later entered into a section 106 Agreement in 1999 which the defendant then claimed revoked the 1997 planning permission in so far as the access road.

When the claimant went to apply to discharge the conditions, the defendant refused the application on the basis that the development which commenced under the 1997 planning permission had been carried out in breach of condition 4 which related to details of parking, service area and means of access and as such, this permission was never implement and has now expired.  The claimant’s argument was that a Council planning officer had written to a third party on the 29 October 2001 advising that “the landowner [the claimant] has a valid planning permission that has been implemented and therefore entitled to carry out the works”.  In short, the claimant was trying to use the estoppel principle to prevent the Local Authority from taking action on the basis of contrary information being provided by the Council planning implementation officer.

Despite the obvious fact that the claimant had never actually made the appropriate application to discharge of planning permission condition, it was held that notwithstanding whatever was said by the Council’s planning officer, there is no concept of estoppel that can be relied upon.

This supports the earlier ruling of R v East Sussex County Council, ex parte Reprotech (Pebsham) Ltd [2002] [2] where it was held that the claimant could not rely on the planning officers comments that planning permission was not required as this was not a bind representation; if a binding determination was required, then a formal application for planning permission needed to be applied for.  The House of Lords went further in this matter to advise that it is unhelpful to introduce private law concepts of estoppel into planning law as public authorities should not be estopped from exercising their statutory discretion and carrying out their public duties. In short, preventing an individual from going back on representations previously made be stopped due to moral grounds but this should not be applied to the public as the authorities already have to account for acting in the best interests of the public.

Conclusion

Notwithstanding the above, the case of Lever Finance Ltd v. Westminster Council [1971] [3] (although possibly a distinct case) shows estoppel playing a part in the planning law context as the Court of Appeal held that a decision by the planning officer that no further planning permission was necessary for minor alteration to developmental work was binding on the Council. The above earlier mentioned cases however make the position very clear that there is no room for estoppel in planning law context.

Although developers may deem this position to be unfair, there still remains the question of whether there is an alterative route for them to look at should they have relied on statements made by planning officers.   The doctrine of legitimate expectations is a principle based on natural justice and seeks to prevent public authorities in abusing their power.  However, it is doubtful that this would assist the developer in the planning context as the local authorities are deemed to take into account the interests of the general public which means that the public interest may override the unfairness caused to the individual who relies on representations made by planning officers.

Therefore, it is imperative that all developers are advised to go through the formal planning application procedures for applying for planning permission and discharging the planning conditions set out in the Town and Country Planning Act 1990 to ensure that they have a formal and binding determination on the planning permissions.  This in turn will assist when the developers are trying to obtain development finance or sell on the plots to purchasers in the future as the legal representatives acting on the other side will not accept anything other than formal notices regarding planning matters. Providing statements from the planning officers and schedules of discharge simply will not be sufficient.

[1] (2016) EWHC 136

[2] [2002] UKHL 8

[3] [1971] 1 QB 222.

Please note that the information in this article is not designed to provide legal or other advice or create a solicitor - client relationship. No liability is accepted for any loss caused in reliance upon its content and you should not take or refrain from taking action based upon the same.