Wandsworth Borough Council, R (on the application of) v Secretary of State for Transportation Local Government and the Regions & Anor

In planning law, private-law estoppel cannot prevent a local planning authority from exercising statutory enforcement powers. Appeals against enforcement notices must proceed within the statutory code and cannot be allowed under ground (c) where the inspector has found a breach of planning control. Relevant considerations may inform a planning-merits appeal under ground (a), or a properly analysed legitimate-expectation case, but they cannot create an extra-statutory estoppel jurisdiction. Where a challenge has been brought under the wrong statutory route, the court may extend time and permit amendment if the delay is short, causes no prejudice, the substantive challenge is strong, and the public interest favours correcting an error of law.

Wandsworth Borough Council challenged an inspector’s decision allowing an appeal by 02 UK Ltd and quashing an enforcement notice concerning a telecommunications mast. The inspector found that the mast and headframe exceeded the permitted-development height limit under Part 24 of Schedule 2 to the Town and Country (General Permitted Development) Order 1995, but held that the council was estopped from enforcing because its prior determination had been acted upon.

The council brought its challenge under section 288 of the Town and Country Planning Act 1990. The court considered whether the challenge should instead have been brought under section 289, whether time should be extended, and whether the inspector’s reliance on estoppel could stand following R v East Sussex County Council, ex parte Reprotech (Pebsham) and Another [2002] 4 All ER 58.

1. Procedural route. The inspector had allowed the enforcement appeal on ground (c) alone. He had not determined ground (a) or the deemed application for planning permission. The proper challenge was therefore an appeal under section 289, not a claim under section 288. The court nevertheless extended time, permitted formal amendment and granted permission to appeal. The delay was approximately two weeks, there was no prejudice, and the public interest favoured correction of an apparently unlawful decision.
2. Estoppel. Following Reprotech [2002] 4 All ER 58, estoppel has no place in planning law as a means of preventing a public authority from performing its statutory duties. The inspector’s reliance on estoppel by representation, estoppel by convention and the general principle that a representation acted upon cannot later be denied was legally unsustainable. The approach applied equally to the alleged first exception in Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204, said to be akin to res judicata.
3. Ground (c). A ground (c) appeal succeeds only where there has been no breach of planning control. Since the inspector expressly found that the apparatus exceeded the 15-metre limit, he could not lawfully quash the enforcement notice on that ground by invoking estoppel.
4. Legitimate expectation and remittal. Legitimate-expectation principles are distinct from private-law estoppel. The circumstances in which legitimate expectation is appropriate in planning are limited, as explained in Henry Boot Homes v Bassetlaw District Council [2002] EWCA Civ 983. The inspector had made no findings under that public-law approach, and the court was not the primary fact-finder. The decision was quashed and the matter remitted to the Secretary of State for reconsideration, including the ground (a) appeal and planning merits.

The judgment itself describes no earlier court decision in the same litigation. It records the inspector’s decision dated 1 February 2002, which allowed the enforcement appeal on ground (c) and quashed the enforcement notice. The High Court granted an extension of time, permitted amendment to proceed under section 289, granted permission to appeal, allowed the appeal, quashed the inspector’s decision and remitted the matter for reconsideration.