South Bucks District Council v Flanagan

A legitimate expectation based on a representation about a public authority’s future conduct requires the representor to have actual or ostensible authority to speak for that authority. A solicitor instructed to prosecute breach of a planning enforcement notice ordinarily has no ostensible authority to agree to withdraw the underlying notice. Such a notice is an enduring public planning instrument which runs with the land, and its withdrawal is extraneous to the prosecution.

Private law estoppel has no continuing role in planning public law. Even an authorised representation does not automatically establish a legitimate expectation or make departure from it an abuse of power. Reliance, fairness and the public interest remain relevant.

The local planning authority sought an injunction under section 187B of the Town and Country Planning Act 1990 to restrain use of land in breach of two enforcement notices. A County Court judge dismissed the claim after finding that the authority’s prosecuting solicitor had agreed to withdraw the notices and that the authority was estopped from acting inconsistently with that agreement.

Harrison J allowed the authority’s appeal, in a decision reported at [2001] 4 PLR 110. He held that the solicitor had authority to withdraw the prosecutions but no ostensible authority to withdraw the underlying enforcement notices. The occupier appealed, relying in the Court of Appeal on legitimate expectation rather than estoppel. The central issue was whether the solicitor’s appointment to conduct the prosecutions gave him ostensible authority to bind the authority concerning the notices’ future validity.

1. Appeal dismissed. Keene LJ delivered the judgment, with which Sumner J agreed. The authority was not prevented by the solicitors’ agreement from pursuing its injunction claim.

2. A legitimate expectation founded on a representation about a public body’s future conduct can arise only where the representor had actual or ostensible authority to make that representation for the body. Fairness does not entitle a recipient to hold a public authority to an unauthorised representation. A subjective expectation created by such a representation is not a legitimate expectation.

3. The authority’s solicitor had no actual authority to withdraw the enforcement notices. Nor did his appointment to conduct the prosecutions give him ostensible authority to do so. A planning enforcement notice is an important public document. It runs with the land, is registrable and remains enforceable against subsequent owners or occupiers. Once effective, it endures indefinitely unless withdrawn under section 173A of the Town and Country Planning Act 1990.

4. The withdrawal of an underlying enforcement notice extends far beyond the subject matter of a prosecution for its breach. Its continuing force is extraneous to that prosecution. Applying the distinction in Waugh v H B Clifford & Sons Ltd [1982] 1 Ch 374, authority to withdraw the notices was outside the usual authority of a solicitor instructed to prosecute. The solicitor’s actual and ostensible authority extended only to withdrawing the criminal proceedings.

5. The court accepted that private law estoppel no longer has a place in planning public law, consistently with R v East Sussex County Council, Ex p Reprotech (Pebsham) Ltd [2002] UKHL 8. The appropriate public law concepts are legitimate expectation and abuse of power, applied with regard to the interests of the public.

6. Keene LJ added that authority alone would not automatically establish a legitimate expectation or make departure from an agreement an abuse of power. Reliance and the public interest could also be material. Those questions were unnecessary to decide. The court determining the injunction could consider the agreement, any resulting disadvantage and the public interest. Continued unlawful use will ordinarily justify an injunction where nothing less will prevent it.

1. Court of Appeal: The appeal in [2002] EWCA Civ 690 was dismissed. Harrison J’s decision remained effective.
2. High Court, Queen’s Bench Division: Harrison J allowed the local planning authority’s appeal, holding that the prosecuting solicitor had no ostensible authority to withdraw the enforcement notices: [2001] 4 PLR 110.
3. Slough County Court: His Honour Judge Parry determined a preliminary issue in favour of the occupier. He held that the authority was estopped by the solicitors’ agreement and dismissed the injunction claim.