Cox v First Secretary of State

In planning cases, an application must be characterised by its substance and by the way the local planning authority lawfully determined it. An application treated as seeking a fresh permission under section 73 of the Town and Country Planning Act 1990 is not retrospectively converted into a renewal application merely because the applicant intended to extend an earlier approval. A planning authority may correct an earlier legal error and is not generally required to maintain an erroneous position as a fallback consideration. Informal or ambiguous advice, particularly where independent professional advice was available and reliance was limited, will not ordinarily create a legitimate expectation requiring permission contrary to powerful planning objections.

The claimant applied under section 288 of the Town and Country Planning Act 1990 to quash an inspector’s decision dated 17 December 2002. The inspector had dismissed his appeal against Carrick District Council’s refusal of planning permission for a dwelling in the countryside at Ponsanooth, Cornwall.

The claimant relied principally on an alleged fallback position arising from earlier outline permissions, reserved-matters approval and a 1996 application seeking further time. He also relied on misleading advice from council officers and alleged legitimate expectation or abuse of power. The central issues were whether the 1996 application created a fresh section 73 permission, whether the earlier reserved-matters approval carried forward, and whether the council’s advice required the inspector to treat the alleged fallback as a material consideration.

1. Application under section 73. The 1996 application was muddled, but the council was entitled to interpret it as an application under section 73 of the Town and Country Planning Act 1990. The application did not identify itself as a renewal of the 1992 permission, and the council’s decision notice expressly granted a fresh outline permission modifying condition 3 of the earlier permission. No appeal or judicial review challenge had been brought against that characterisation.
2. Expiry of reserved-matters opportunity. The 1996 permission imposed a new condition requiring reserved matters to be submitted within three years. The claimant did not submit details under that condition. The opportunity therefore expired in 1999, and the 1994 reserved-matters approval did not carry forward as compliance with the 1996 permission.
3. Inspector’s factual assessment. The inspector was entitled, after a three-day inquiry, to find that advice given by a council officer in 1998 or 1999 was ambivalent. His interpretation of the 1996 permission and of the reference to the original decision notice was also open to him. The inspector was not required to investigate the council’s internal reasons for reimposing the condition because those reasons did not alter the legal effect of the permission.
4. Legitimate expectation. Legitimate expectation has a restricted role in planning. The ambiguous earlier advice could not establish an expectation. The council was entitled to correct its later legal error and argue that there was no fallback because the permission had lapsed. It would have been artificial and unfair to require the council to maintain an erroneous position. Reliance on the later advice was minimal because the claimant dug the trench only after refusal of his new application, to support his appeal.
5. Planning balance and outcome. The inspector was entitled to conclude that the development conflicted with development-plan policy and harmed landscape, village setting and highway safety. The alleged fallback and the claimant’s grievance about misleading informal advice did not outweigh those objections. The application to quash the decision was dismissed. The claimant was ordered to pay the First Secretary of State’s costs, summarily assessed at £5,000.

The judgment describes an inspector’s decision dismissing the claimant’s planning appeal against Carrick District Council’s refusal of permission. The Administrative Court dismissed the section 288 challenge and upheld the inspector’s decision.