Lever Finance Ltd v Westminster (City) London Borough Council

A detailed planning permission covers the approved work and any variation which is immaterial. An established and sensible practice may authorise a planning officer to decide whether a proposed variation is material.

Where an officer acts within that ostensible authority and the developer reasonably acts on the decision in good faith, the planning authority may be bound. It cannot subsequently treat the variation as unauthorised merely because the officer made a mistake. This principle concerns the waiver of procedural requirements or irregularities. It does not permit an authority to abandon a statutory duty imposed in the public interest.

The developers obtained detailed planning permission for 14 houses. Their architect later submitted a revised plan which moved one house substantially nearer neighbouring properties. A council planning officer stated that the alteration was immaterial and required no further consent. The developers relied on that statement and constructed the house to an advanced stage.

The council subsequently refused applications intended to regularise or modify the development and resolved to serve an enforcement notice. Bridge J granted the developers declaratory and injunctive relief. The council appealed.

The central question was whether the council was bound by its officer’s statement, made under an established administrative practice, that the variation was immaterial.

1. The appeal was dismissed unanimously. The council was bound by its planning officer’s decision that the variation was immaterial. It could not serve an enforcement notice against the developers in respect of work undertaken in good-faith reliance upon that decision.

2. Per Lord Denning MR, a detailed planning permission covers both the work specified in the approved plans and any immaterial variation. Development commonly requires minor changes, and a fresh application to the planning committee is unnecessary for every such change. The established practice under which a planning officer decided whether a variation was material was sensible and should be affirmed.

3. The officer had ostensible authority to decide whether the variation required further permission. Once the officer stated that it was immaterial and the developers acted upon that statement, the council could not repudiate what its officer had done. Although public authorities cannot be estopped from performing statutory duties, broad statements denying any binding effect to their officers’ representations must be treated with considerable reserve. Procedural defects and irregularities may be cured or waived by a public authority.

4. Section 64 of the Town and Country Planning Act 1968 permitted substantial delegation to local authority officers. A person dealing with the authority could ordinarily assume that the necessary internal resolutions had been passed. Lord Denning MR nevertheless did not decide the appeal under that provision because section 64(5) referred to written notice and no such notice existed.

5. Per Sachs LJ, the court had to preserve the authority’s ability to protect the planning system while ensuring that persons dealing reasonably with its officers were not trapped by procedural requirements which established practice treated as unnecessary. The continuation of the established practice after statutory delegation became possible amounted in this instance to implied delegation. The conversation operated as though the formalities associated with an application under section 43 of the Town and Country Planning Act 1962 had been observed.

6. Megaw LJ agreed that the appeal should be dismissed. The council was ordered to pay the costs, and leave to appeal to the House of Lords was refused.

1. Court of Appeal: The council’s appeal was dismissed unanimously with costs. Leave to appeal to the House of Lords was refused.

2. High Court: Bridge J decided in favour of the developers after an expedited trial on 18 and 19 June 1970, granting relief against the proposed enforcement action.