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

A statutory planning determination is a juridical act. Its existence and legal effect depend on the governing legislation, including procedures protecting participation by other authorities, the Secretary of State and the public. An informal opinion or conditional, non-binding resolution cannot acquire statutory effect merely because its meaning appears clear.

Private-law estoppel should not be imported into planning control. A public authority’s representation may instead create a legitimate expectation, but public-law remedies must account for the wider public interest. Informal advice is not reasonably understood as binding where legislation provides a formal determination procedure.

A court should not grant a declaration about the lawfulness of land use where its only purpose would be to answer future enforcement proceedings and the statutory appeal procedure is exclusive.

East Sussex County Council sold a waste-treatment plant to Reprotech. Before the sale, a council planning officer expressed the view that generating electricity from treated waste would not require further planning permission. A committee later conditionally authorised variation of an operating-hours condition, subject to agreement of a noise-attenuation scheme. No formal determination under section 64 of the Town and Country Planning Act 1990 was requested or issued.

Reprotech sought declarations that the officer’s statements and committee resolution constituted a binding section 64 determination. It also sought judicial review and an order requiring the council to issue the varied permission. Tucker J granted relief in proceedings reported at [2000] En LR 381. The Court of Appeal affirmed the principal declarations by a majority, Schiemann LJ dissenting.

The central issues were whether the conditional resolution had the statutory effect of a section 64 determination, whether the council was estopped from denying that effect, and whether the court should declare that generating electricity required no additional planning permission.

1. Appeal allowed unanimously. Lord Hoffmann delivered the leading speech. Lord Nicholls, Lord Mackay, Lord Hope and Lord Scott agreed with his reasons. The originating summons and application for judicial review were dismissed.
2. Per Lord Hoffmann, a determination under section 64 of the Town and Country Planning Act 1990 was a juridical act whose nature had to be ascertained from the Act and subordinate legislation. Its statutory context required an application describing the proposed and existing uses, registration for public inspection, an opportunity for the district authority to make recommendations, an opportunity for the Secretary of State to call in the matter, and written communication of the decision. These requirements reflected interests extending beyond the applicant and planning authority.
3. The committee’s conditional resolution was not a section 64 determination. It merely authorised the planning officer to issue a new permission after agreement of a noise-attenuation scheme. Reprotech accepted that the resolution itself was not planning permission and did not bind the authority. A resolution intended to have no immediate legal effect could not impliedly constitute a binding statutory determination. Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 was distinguishable because the communication there was intended to be a decision having immediate legal consequences. Lord Hoffmann left its correctness open while expressing doubt about its majority reasoning.
4. Per Lord Hoffmann, the council was not estopped from denying that electricity generation required further permission. A planning officer’s informal opinion could not reasonably be understood as binding when a formal statutory determination was available. Nor did the committee resolution represent that it possessed a legal effect which it did not have. There was no relevant agreed assumption.
5. Private-law estoppel should not be extended into planning control. Public law had absorbed the useful values underlying estoppel through abuse of power and legitimate expectation. Its remedies also accommodated the interests of the public whom the authority served. Earlier attempts to analyse planning decisions through private-law estoppel should no longer govern.
6. The declaration that no further planning permission was required was merely a consequence of the erroneous finding that a binding section 64 determination existed. Lord Hoffmann also concluded that a declaration intended only to answer future enforcement proceedings should not be made. Following Thrasyvoulou v Secretary of State for the Environment [1990] AC 273, the relevant statutory appeal procedure conferred exclusive jurisdiction for that issue.
7. Lord Mackay added that, when considering an application under section 73(2), an authority could have regard to the scope of the existing permission when deciding what conditions to impose. Doing so did not amount to a determination under section 64 or section 192.

1. House of Lords: The council’s appeal in Regina v East Sussex County Council, Ex Parte Reprotech (Pebsham) Ltd and One Other Action [2002] UKHL 8 was allowed unanimously. The originating summons and application for judicial review were dismissed.
2. Court of Appeal: By a majority, Henry and Aldous LJJ affirmed the second and third declarations made below. Schiemann LJ dissented. No citation for this stage is stated in the judgment.
3. High Court: Tucker J, in proceedings reported at [2000] En LR 381, declared that the planning officer’s statements and committee resolution constituted a section 64 determination. He also declared that electricity generation required no additional permission and ordered the council to issue permission after submission of a satisfactory noise-attenuation scheme.