South Bucks District Council v Flanagan & Anor

Permission to bring a second appeal may be granted where a serious point of principle concerns a solicitor’s ostensible authority to bind a public planning authority.

The issue may depend on specific instructions to withdraw statutory enforcement notices, rather than merely on a general retainer to prosecute breaches. The court may also consider whether the facts independently justify an adverse exercise of discretion, without deciding the merits at the permission stage.

The defendants had occupied land subject to enforcement notices. After criminal proceedings were withdrawn following an agreement between solicitors, the local planning authority brought injunction proceedings under section 187B of the Town and Country Planning Act 1990. The defendants relied on estoppel by agreement.

Judge Parry upheld their position in the Guildford County Court. Harrison J allowed the authority’s appeal, holding that the authority’s solicitor lacked ostensible authority to withdraw the enforcement notices. The central issue on the application for a second appeal was whether the solicitor might have received specific instructions to withdraw the notices, and whether the facts supported the court’s discretion.

Application allowed. Sedley LJ granted permission to appeal and ordered that enforcement of the costs order be stayed, with liberty to the local authority to apply. The costs of the application were ordered to be costs in the appeal.

1. Second-appeal threshold. Permission required an important point of principle or practice, or some other compelling reason. The threshold was stringent, but its application was moderated because the applicant was not a party who had already lost twice.
2. Point of principle. The proposed appeal raised a serious question about whether the solicitor had ostensible authority to undertake that enforcement notices would be withdrawn. The question was whether authority arose not from the solicitor’s general retainer, which was plainly limited to prosecution, but from specific instructions given on the day.
3. Underlying reasoning. The county court judge had treated the matter principally as an exercise of discretion, depending on the solicitor’s actual or ostensible authority. Harrison J regarded withdrawal of an enforcement notice as materially different from withdrawal of a prosecution and required clear and compelling evidence of ostensible authority. Sedley LJ considered Harrison J’s reasoning cogent and persuasive but thought the legal conclusion might be wrong.
4. Merits reserved. The court expressed no view on the strength of the authority argument. It also left open the possibility that the facts found below independently justified exercising the injunction discretion adversely to the local planning authority.

1. Court of Appeal (Civil Division) — On 19 December 2001, Sedley LJ allowed the application for permission to bring a second appeal. The costs order was stayed, and the application costs were made costs in the appeal.
2. High Court, Queen’s Bench Division (Administrative Court) — Harrison J allowed the local authority’s appeal and held that its solicitor had no ostensible authority to withdraw the enforcement notices.
3. Guildford County Court — On 17 November 2000, Judge Parry upheld the defendants’ plea based on the agreement between the solicitors.