Regina v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd and One Other Action

The House of Lords allowed the appeal and dismissed the declarations and judicial review sought by Reprotech. The court held that the Development Control Sub-Committee's conditional resolution and the County Planning Officer's informal opinion did not amount to a statutory determination under section 64 of the Town and Country Planning Act 1990 (the provision then in force) because the statutory scheme required a determination to arise from a formal application and to follow prescribed procedural steps, including registration, consultation with the district authority and the Secretary of State's call-in rights, and written notification to the applicant. The court rejected private law estoppel as a basis for binding the planning authority in this public-law context and emphasised that public law remedies and exclusive statutory procedures (including the replacement statutory routes in sections 191 and 192) displace such private-law remedies in planning enforcement matters.

Background and parties

Reprotech purchased a waste treatment plant previously operated by a council-owned company. Potential purchasers had queried whether generating electricity from treated waste would be a material change of use requiring planning permission. No formal section 64 application was made. Instead, the company's application sought variation of condition 10 of the original permission to except turbines from restrictions on use of power-driven machinery at certain times; the county development committee resolved to allow the variation subject to conditions and a satisfactory noise scheme, but no formal decision notice was issued.

Procedural history

• Reprotech sought declarations and judicial review in the High Court (Tucker J) that the planning officer's opinion or the committee resolution amounted to a section 64 determination, that electricity generation required no further permission, and sought a mandatory order to implement the committee resolution. Tucker J granted declarations and a mandamus. The Court of Appeal, by majority, affirmed parts of Tucker J's decision. The County Council appealed to the House of Lords.

Issues framed

• Whether the committee resolution or the planning officer's statements amounted to a statutory determination under section 64 of the Town and Country Planning Act 1990 (and thus had the statutory consequences attaching to determinations).
• Whether the council was estopped or otherwise bound by its informal statements or resolution from insisting on the formal statutory process.
• Whether the High Court had jurisdiction to grant the declaratory relief sought as an alternative to the statutory appeal and enforcement procedures.

Court's reasoning

• The House analysed the statutory nature of a "determination" and concluded it was a juridical act generated by the statutory procedure. The statute and subordinate legislation required an application containing specified information, entry on the planning register, opportunity for district authority representations, and the Secretary of State's call-in right, and required written notification to the applicant. A conditional committee resolution authorising an officer to issue a permission did not meet these statutory requirements and had no legal effect as a determination.
• The court distinguished earlier authorities relied upon (including Wells) and concluded that those decisions did not justify treating the committee resolution as a binding statutory determination in the absence of the required statutory procedure.
• The court rejected an estoppel argument founded on the planning officer's view or the committee resolution, emphasising the public law character of planning decisions and the need to protect wider public interests; private-law estoppel is not an appropriate mechanism to bind public planning authorities in this context. The possibility of legitimate expectation was noted as an analogy but insufficient to override the statutory scheme.
• Finally, relying on authorities including Pyx Granite and Thrasyvoulou, the court held that declaratory relief of the kind sought would, if effective against enforcement, in substance interfere with the exclusive statutory routes; the judge therefore should not have granted the declaration.

Relief sought: declarations that a section 64 determination had been made, a declaration that electricity generation did not require further permission, and a mandamus to issue written planning permission in accordance with the committee resolution. The House refused these remedies and dismissed the originating summons and judicial review application.

Appeal allowed. The conditional committee resolution and the planning officer's informal opinion did not constitute a statutory determination under section 64 of the Town and Country Planning Act 1990; the statutory procedure (including application, registration, district consultation, Secretary of State call-in and written notification) was required for a determination to arise. There was no estoppel or binding representation sufficient to oblige the council to treat electricity generation as lawful without the statutory process. The High Court should not have granted the declaratory relief which would circumvent exclusive statutory procedures. Accordingly the originating summons and the application for judicial review were dismissed.

Tucker J (High Court) made declarations and ordered mandamus ([2000] En LR 381). Court of Appeal affirmed parts of that decision by majority (Henry and Aldous LJJ majority; Schiemann LJ dissenting). Appeal to the House of Lords ([2002] UKHL 8) allowed and the earlier orders set aside.