R v Richmond London Borough Council ex parte McCarthy & Stone
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE |
| Judgment Date | 28 February 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0228-5 |
| Docket Number | 90/0181 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 February 1990 |
In The Matter Of An Application For Judicial Review
[1990] EWCA Civ J0228-5
Lord Justice Slade
Lord Justice Mann
and
Sir David Croom-Johnson
90/0181
CO71 1988
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR. JUSTICE POPPLEWELL)
Royal Courts of Justice
MR. ANTHONY SCRIVENER Q.C. and MR. RICHARD RUNDELL (instructed by Messrs. Metson Cross & Co., Solicitors, London, WC2 1HP) appeared on behalf of the Applicant (Appellant).
MISS ELIZABETH APPLEBY Q.C. and MR. DAVID MOLE (instructed by The Head of Legal Services, London Borough of Richmond upon Thames) appeared on behalf of the Respondent (Respondent).
This is the judgment of the court on an appeal by McCarthy & Stone (Developments) Ltd. ("the Developers") from an order of Popplewell J. made on 30th January 1989 whereby he refused their application for judicial review. The delay in delivering this judgment, which has been aggravated by a series of mischances, is regretted.
The appeal concerns the legality of the policy of the respondent London Borough of Richmond Upon Thames ("the Council") in seeking to levy a charge for consultations between developers and the Council's planning officers preliminary to formal applications for planning permission.
The Council is a local planning authority within the provision of s.l of the Town and Country Planning Act 1971, as amended. By virtue of s.29 of that Act it is charged with the duty of determining applications for planning permission properly submitted to it.
It is common practice for persons who are contemplating proposals for development or redevelopment to seek the informal views of the officers of the planning authority concerned so as to discover whether the proposals are likely to be acceptable. The advantages of this process are well described in an affidavit sworn by Mr. R.D.F. Bagley, a solicitor-employed by the Developers, as follows:
"Such enquiries are of a routine nature when considering either development or re-development proposals. They are of great assistance to both the potential developer and the planning authority. By such means a developer can be guided towards the type of proposal that is likely to be thought desirable or acceptable by the planning authority and tends to reduce the number of refusals of planning applications in respect of matters that might nave been identified and remedied before an application is submitted."
Pre-application consultation process of this kind has been encouraged by the Secretary of State in paragraph 6 of Circular No.22/80 in giving advice to planning authorities on the policy and practice of development control. Furthermore, in paragraph 16 of Circular No.2/87 planning authorities were warned that if they
"…have refused a request from the appellant to discuss the planning application, or the possibility of granting planning permission……or have refused to provide information which they could be reasonably expected to provide, an award of costs may be made if the appeal might otherwise have been avoided".
The desirability of and need for facilities for pre-application consultation, in the interests of all parties concerned, are common ground. The process, however, inevitably absorbs time on the part of the Council's officers concerned.
On 2nd July 1985 the Council, by its Planning Committee, passed a resolution that a charge of £25 be made for enquiries relating to speculative re-development or development proposals made by prospective purchasers of land or property. In making this decision, the Committee had before it a report, the following paragraph of which explains the thinking behind it:
"Enquiries relating to speculative re-development or development proposals, again made usually by a prospective purchaser of land or property. This sort of enquiry often arises where land or property is placed on the market and several developers or prospective purchasers make enquiries of the Planning Office as to future proposals, in order that a bid can be made for purchase. This type of case involves the staff in a considerable amount of time and research and a fee would seem to be appropriate. Enquiries are often received from owners of land who wish to establish a value for future sale of their property and again, as this is a speculative matter, a fee would seem to be reasonable. Where informal proposals are submitted prior to the making of a planning application the information given often results in a more realistic planning application being submitted and permission being subsequently granted, thereby avoiding refusal of permission. In these cases it is considered necessary to have a system which is simple and easy to operate and therefore a flat fee of £20.00 (sic) is considered reasonable. As regards casual enquiries made at the enquiry desk information would still be given provided it did not involve considerable search and staff time. In those cases which could not be dealt with at the time requested then the enquirer would be asked to put their enquiry in writing and enclose the appropriate fee."
The Council, in its evidence before the court, has explained that the fee is intended to be in reimbursement of the cost of officers' time taken up during such consultations, rather than to produce a profit, and that it was considered administratively convenient to introduce a flat fee. It is not contended that the amount of the fee is either excessive or unreasonable, and indeed the Council's evidence suggests that the charges made on average relate only to a modest proportion of the total time spent in giving the relevant advice.
Pursuant to its decision of July 2nd 1985, the Council, in August 1986, charged the Developers a fee of £25 by way of a planning consultation fee for a meeting to be arranged with the planning officer to discuss proposals to develop sheltered housing for the elderly at Mortlake Bus Garage, Avondale Road, Richmond. The Developers immediately questioned the legality of the charge. On 12th January 1987, the Developers paid under protest a similar fee for another planning consultation.
In a number of letters, the Developers contended that the Council had no statutory authority to levy such charges, and asked it to reconsider its policy of levying fees for consultations. However, on 27th October 1987, the Council's solicitor wrote to the Developers informing them that it did not propose to revoke the current policy.
On 19th February 1988, pursuant to leave given by Webster J. on 11th February 1988, the Developers applied for judicial review of the Council's decision given by its letter to the Developers of 27th October 1987. The form of relief sought was an order of certiorari, a declaration that the Council has no power to charge the fees in question and damages in the sum of £50. Popplewell J. refused this relief, and the Developers now appeal to this court.
It is common ground (as it was in the court below) that the Council can only do what statute requires it to do or permits it to do and that it is for the Council to identify the statutory power which enables it to levy the fees in question: (see for example A.G. v. Fulham Corporation, [1921] 1 Ch. 440 at p.450 per Sargant J.).
S.87(l) of the Local Government, Planning and Land Act 1980 empowers the Secretary of State to provide by regulations
"for the payment of a fee of the prescribed amount to a local planning authority in England or Wales….. in respect of an application made to them under the planning enactments for any permission, consent, approval, determination or certificate."
However, regulations made under this section will enable a planning authority to charge fees only for dealing with the application itself, not for dealing with pre-application inquiries.
The statutory provision relied on by the Council in the present case is s.111(1) of the Local Government Act 1972. That section, which is headed "Subsidiary powers of local authorities", provides by subsection (1):
"Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions."
Subsection (3) provides:
"A local authority shall not by virtue of this section raise money, whether by means of rates, precepts or borrowing, or lend money except in accordance with the enactments relating to those matters respectively."
Even though no statutory provision explicitly confers this power, it is common ground that s.111(1) is wide enough to empower the Council to take part in pre-application consultations, since any such activity is "calculated to facilitate or is conducive or incidental to the discharge of" their planning functions under s.29 of the 1971 Act.
The Developers' case, however, is that the subsidiary powers conferred by s.lll(l) are not wide enough to authorise the Council to charge potential applicants who wish to avail themselves of these facilities, however reasonable the charges themselves may be. Mr. Anthony Scrivener Q.C., on their behalf, has submitted that a local authority has no power to levy money from Her Majesty's...
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