Rastrum Ltd & Anor v Secretary of State for Communities & Local Government & Anor

Where planning operations were carried out in breach of condition, they may nevertheless become lawful when the period for enforcement expires. The operations can then constitute a lawful commencement of the development, preserving the planning permission.

Legitimate expectation cannot confer a substantive benefit which a public authority has no power to grant. However, a clear representation in a binding planning agreement may justify close consideration of whether refusal of a certificate would be unfair or an abuse of power. Such cases are rare and require evidence of reliance, unfairness, public interest and third-party prejudice.

Rastrum Limited and Mr Benge challenged the refusal of a certificate of lawfulness for proposed development at The Saltings, Rye Harbour. The development depended on outline permission granted in 1981 and reserved-matters approval granted in 1985. Access works were carried out before the apparent expiry date, but the Inspector concluded that they had been commenced in breach of condition and that the permission had therefore lapsed.

The claim under section 288 of the Town and Country Planning Act 1990 challenged the Inspector’s decision on several grounds, including immunity from enforcement, legitimate expectation and abuse of power.

1. The claims succeeded. The Inspector had erred in law by failing to consider whether the 1987 commencement works, although initially carried out in breach of condition, had become lawful because enforcement action was time-barred.
2. Following the approach adopted in R (Hammerton) v London Underground Ltd [2002] EWHC 2307 (Admin), once enforcement action against the operations is no longer lawfully possible, the operations may be regarded as effective to commence the development. The development was therefore lawfully commenced, and the 1981 permission and 1984 approval remained extant.
3. The Inspector also adopted too narrow an approach to abuse of power. The issue was not confined to whether the commencement works were lawful. It included whether enforcement against further operational development would contradict the basis on which the authorities had entered into the 1992 section 106 agreement.
4. Legitimate expectation is founded on fairness in the exercise of public functions. It cannot require a public body to confer a benefit beyond its statutory powers, and planning controls cannot generally be bypassed by agreement or inaction. Nevertheless, the 1992 agreement clearly represented that the earlier permission and approval had been implemented and remained capable of revocation. A successor in title could potentially rely on that representation.
5. The legitimate-expectation and abuse-of-power issues required further factual investigation. Evidence was needed concerning reliance, the reasons for the authority’s change of position, the claimant’s legal advice and the possible prejudice to third parties.

The refusal was quashed in substance, and the applications succeeded. If the conclusion on immunity from enforcement was wrong, the remaining issues were to be remitted for proper consideration.

The judgment does not state a prior appellate history. It concerned a challenge under section 288 of the Town and Country Planning Act 1990 to an Inspector’s decision dismissing Rastrum’s appeal against refusal of a certificate of lawfulness.