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Address given by

Tim Leader - Barrister

at Eastbourne

Type 1. Estoppel by representation or "can I go back on what I said'? Planners are always being asked questions by land owners and developers about whether planning permission is needed for a certain activity, or about what the consequences will be if they take a particular course of action. Advice may be given in good faith. The officer, or his line manager may later wish to change his mind. Or the Council may make a decision which is inconsistent with the advice he has given. The person who asked for and received the advice may then turn round and say that the Council cannot change its mind, and that enforcement action cannot be taken.

The general rule

"An estoppel cannot be raised to prevent the exercise of a statutory power, or to prevent the performance of a statutory duty"

In other words, officers cannot do what only members (ie the Council) can do; and if officers do or say anything which purports to determine in advance what only the Council may determine the Council itself will not be bound to take the same tack as officers. They can do something else.

Example In local authority X all planning applications are determined by Committee. Pete the planning officer tells Bert the builder that he doesn't need planning permission to build an extension to a house even though Bert shows Pete plans that illustrate the extension is far too big to benefit from PD rights. Bert begins to build the extension. Eric the enforcement officer sees what is going on and tells Bert he needs planning permission and should make a retrospective planning application. Bert makes the application. Committee refuse planning permission. Are the Committee estopped by Pete's representation from refusing permission? - No. Planning permission was required. A planning application was made. It had to be determined. Pete's representation could not stop the Committee from determining the application, or from doing so as it saw fit.

Exceptions to the General rule The general rule is subject to 2 exceptions:-

Exception 1 'If an officer, acting within the ostensible scope of his authority, makes a representation on which another acts, then a public authority may be bound by it. Thus if an officer appears to have the power to decide a question, does so, and the other person acts on it, a Council may be bound by what the officer said. Points to note:-

• 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 authority. Holding an office, however senior, is not enough in itself. But, for example, if an applicant's architect had knowledge of a scheme of delegation, and an officer approved minor amendments to a plan, that would probably be binding. If the scheme was then built as amended, no enforcement action could be taken against it. The same would not be true of a plan to redevelop Piccadilly Circus.

• The person who received the information must have acted on it. Thus in the earlier example of Bert the Builder, if Pete had acted within his ostensible authority the Council would have been estopped from taking enforcement action because Bert actually acted on Pete's representation.

Exception 2 "If a planning authority waives a procedural requirement relating to any application made to it for the exercise of its statutory powers, it may be estopped from relying on that lack of formality". In other words, if a certain procedure is laid out for making a particular kind of application, this is not followed, officers say "don't worry, that's OK", and permission is granted, the Council cannot go back on that decision later because the correct procedures were not followed.

How estoppel by representation is likely to affect enforcement officers in practice This defence to enforcement action is essentially one of, "You told me 1 could do this and you can't stop me". It will therefore usually have its origins in a meeting or piece of correspondence. Thus make sure you tell everyone you meet or write to what the limits of your authority are to determine the question they have asked you. Do not encourage people to act on your advice (unless you are sure you have the power to determine a question and bind the Council). And if you are going to dispense with formalities be certain it will not hinder proper decision making; you will not be able to go back on it later. You may experience estoppel by representation being argued as a ground (c) appeal. Or it may be presented as something outside section 174 of the Act, Either way, seek legal advice. You must always tell your lawyer:- * Precisely what was said (including any caveats). * When. * To whom. * Why. * What the recipient of your advice did/ has done (if anything). * Whether he/she has relied on your advice.

Type 2 Estoppel per rem judicatam or 'that point has been decided previously The purpose of this kind of estoppel in a planning context is to prevent Council's and Appellant's arguing about questions that have already been determined at enforcement appeals. There are 2 limbs to this kind ("species") of estoppel.

"Cause of action estoppel". This applies to appeals under section 174(2) grounds (b), (c) and (d). Basically. where an enforcement notice has been issued, and an appeal made, and a decision made on any of these grounds then if the appeal is allowed the Council cannot seek to reopen the question of whether the use is lawful by serving another enforcement notice that challenges the lawfulness of that use. Example In 1982 "Bliss House", a house within a terrace of large Victorian houses is used as a hostel. An enforcement appeal was heard. The appellant proved that the hostel use was an established use and the enforcement notice was quashed. Since then 2 other houses have been converted to hostels without planning permission. They are run as separate entities. There has been no other change of circumstances. Eric serves enforcement notices in respect of all 3 hostels. Can he do this? Answer. "No" so far as Bliss House is concerned. The question of whether the hostel use is lawful has been decided before and may not be "re-litigated". But Always cheek the question to be limited is in fact the same as the one that was decided previously.

Example If after the last appeal the use of Bliss House changed to say a private dwelling house (thus displacing the old "established use" and then reverted back to a hostel the questions to be determined by the inquiry (had there been a change of use, did it displace the established use, what was the legal effect of this displacement) would be quite different from those determined at the previous enforcement appeal. There would be no estoppel in these circumstances.

Issue estoppel Proving the facts that are necessary to prove a breach of planning control will require certain issues to be decided. Once these have been established in enforcement proceedings the same issues cannot be re-opened in later proceedings.

Example An enforcement notice alleges operational development comprising works to a stable (to convert it to a house). An appeal ensues. The Appellant argues that the works were carried out pursuant to a planning permission that was granted in 1950 and commenced before the end of 1973. The Council says the permission was not commenced. The Inspector agrees. The appeal is dismissed. The Council is later persuaded to grant planning permission for a different kind of barn conversion. The enforcement notice is withdrawn. The Appellant then builds out his original scheme. Another enforcement notice is served. The Appellant tries to argue the 1950 permission was commenced. He can't. In every case:-

1. Identify the question determined in the previous proceedings.

2. Identify the findings of fact and law that provide the essential foundation for that determination.

3. Consider whether those findings would be contradicted by the contentions advanced in support of the later proceedings.