R WANDSWORTH BOROUGH COUNCIL v Secretary of State for Transport LOCAL GOVERNMENT and The REGIONS and 02 UK Ltd(formerly BT Cellnet Ltd)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE SULLIVAN
Judgment Date29 January 2003
Neutral Citation[2003] EWHC 622 (Admin)
Date29 January 2003
Docket NumberCO/1344/2002

[2003] EWHC 622 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand London WC2

Before:

Mr Justice Sullivan

CO/1344/2002

The Queen On The Application Of Wandsworth Borough Council
(Claimant)
and
Secretary Of State For Transport Local Government And The Regions
(Defendant)
and
02 Uk Ltd (formerly Bt Cellnet Ltd)
(interested Party)

DR D WOLFE (instructed by ASB Law) appeared on behalf of the CLAIMANT

MISS S J DAVIES (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT

MR G ROOTS QC and MR C BOYLE (instructed by Lawrence Graham) appeared on behalf of the INTERESTED PARTY

MR JUSTICE SULLIVAN
1

This is a challenge by the claimant local planning authority to an inspector's decision to quash an enforcement notice served by the authority upon the interested party. The enforcement notice alleged that the interested party had erected a telecommunications mast in breach of planning control because it exceeded the 15 metre height limit upon masts that can be erected as permitted development under the Town and Country (General Permitted Development) Order 1995.

2

Part 24 of Schedule 2 to the 1995 order grants planning permission for certain forms of telecommunications equipment including, subject to various conditions, masts of the kind with which this case is concerned. Condition A.1 of Part 24 states that -

"Development is not permitted by Class ….. if -

(a) ….. the ….. apparatus ….. excluding any antenna, would exceed a height of 15 metres above [the] ground ….. "

Condition A.2 (4) sets out a procedure —before beginning development the developer must apply to the local planning authority for its determination as to whether the authority's prior approval to siting and appearance will be required. The application must be accompanied by, amongst other things, a written description of the proposed development. If the authority indicates that its prior approval will be needed then prior approval must be sought. If the authority does not so indicate then after an appropriate period the developer can proceed to erect the mast. In the present case the interested party applied on 11 September 1997 under Part 24 for a determination as to whether prior approval would be required for the mast in question. The form describing the proposed structure said:

"Type of Structure (eg tower, mast etc): Tower overall height 15.00 metres."

The application was accompanied by plans and drawings which showed a "proposed 15m monopole" mast. The legend on the plan said "do not scale". In response to that the council, by notice dated 9 October 1997, determined that its prior approval would not be required for the development in question, that is to say, the -

"erection of 15 metre monopole, three dual polar antennae, two dish antennae and three radio equipment cabinets."

The determination referred to the drawings submitted with the application.

3

In due course the council brought enforcement proceedings against the development on the basis that it was not covered by the prior determination because it exceeded 15 metres high. The council issued an enforcement notice on 22 May. The enforcement notice alleged that the mast was detrimental to metropolitan open land and to land in the vicinity. The interested party appealed against the enforcement notice. An inspector was appointed to determine the appeal which was dealt with by way of written representations. The inspector determined the appeal in a decision letter dated 1 February 2002. He noted that the appeal was proceeding on grounds (a), (c) and (g) in Section 174 (2) of the Town and Country Planning Act 1990 ("the Act"). Under ground (c) it was contended that the matters alleged in the notice did not constitute a breach of planning control. The decision letter is, on its face, simply concerned with the appeal on ground (c). In paragraph 1 of the decision letter the inspector referred to paragraph 24 of schedule 2 and to the determination of 9 October 1997. In paragraph 2 he referred to the facts that the 15-metre monopole mast had been erected upon a plinth and that a headframe supported the antennae. The council contended that as a result of these two matters the 15-metre height limit was exceeded. The inspector rejected the council's contentions in respect of the plinth but accepted them in respect of the headframe.

4

In the final sentence of paragraph 11 of his decision letter the inspector said:

" ….. I am in no doubt that the apparatus installed on the appeal site, comprising a standard 15 metre pole with separate headframe over 2 metres high, exceeds the height limit in Class A.1 (a) of Part 24 of the GPDO."

He went on in paragraph 12 to say:

"12 Nevertheless, just as the drawings submitted as part of the prior notification in 1997 showed the concrete plinth and the height of the base of the mast, so too they showed the headframe. From my inspection the mast and headframe have been installed as shown on the submitted drawings. The Council states that the height measured from the rugby field to the top of the headframe is 17.64 metres. The height shown on the 1:100 scale drawing [reference given] is 17.6 metres. The difference of 0.04 metres is insignificant bearing in mind the total height and that comparison is being made with a scale drawing. The Council maintains that the apparatus installed is materially different from that considered under the prior notification procedure, but I do not agree. I am satisfied that the existing installation is the same as that subject of the Council's prior notification dated 9 October 1997.

13 I accept that further appeal decisions have examined subsequently the question of whether the headframe should be included in the Part 24 height limit. The Leeds decision in particular was not made until February 2000. Nonetheless, I do not consider it would be right to set aside a formal determination previously issued by the Council on which the appellant has acted in good faith. The fact that the headframe exceeded the 15 metre height limit, which the Council now argues is a material difference between what was notified and what has been erected, should have been obvious from [the drawing].

14 It follows that the Council is estopped from arguing now that the installation is not permitted under Part 24 of the GPDO. The basic principle of estoppel is that a person who by some statement or representation of fact causes another to act to his detriment in reliance on the truth of it is not allowed to deny it later, even though it is wrong. The courts have examined this principle in relation to the exercise by local planning authorities of their statutory enforcement powers. In Western Fish Products Ltd v Penwith District Council [1981] All ER 204 the Court of appeal held that where an officer with ostensible authority makes a formal determination on behalf of his authority, it may be bound by it. This is known as estoppel by representation. In this case the determination on 9 October 1997 in response to the appellant's prior notification under Part 24 of the GPDO was issued under the signature of the Borough Planner as a formal determination on behalf of the Council. The appellant company was entitled to take the view that he had the authority to issue that determination. It acted on it by carrying out the development in accordance with the prior notification.

15 The application of estoppel was further examined in R v Caradon District Council ex parte Knott [2000] 3 PLR 1, in which it was held that where parties have conducted dealings on one basis it would be wholly unjust for the Council to subsequently proceed in a different manner. This is known as estoppel by convention. In this case it was accepted for a considerable period that the development subject of the 1997 prior notification application ….. was permitted development under Part 24 of the GPDO. A complaint was made to the Local Government Ombudsman regarding the installation and in a letter dated 24 June 1999 in connection with this complaint the Council's Chief Executive stated that the application ….. concerned a proposal that was permitted under Part 24 of the GPDO. Further, the Council refused to grant prior approval on 4 June 1999 on a prior notification concerning a proposal to replace the existing equipment cabins and antennae on the installation subject of this appeal. In issuing that refusal the Council did not state that the mast was not permitted by the GPDO. It was not until 22 August 2000 that the Council wrote to the appellants stating that the installation was not permitted development. The Council is not at liberty now to go back on its previous opinion, which has been expressed to neighbours and other bodies and upon which both the Council and the appellant have previously proceeded."

5

The inspector set out his conclusions in paragraph 16:

"16 I therefore conclude that the apparatus installed on the appeal site exceeds 15 metres in height and hence does not come within the scope of Part 24 of the GPDO. Nonetheless, the apparatus that has been installed is that for which the Council issued a determination on 9 October 1997 stating that prior approval to the siting and appearance of the development was not required. Consequently, the Council is now estopped from pursuing enforcement action and I shall therefore quash the notice."

His formal decision was:

"17 In the exercise of the powers transferred to me, I allow the appeal and direct that the enforcement notice be quashed."

6

It will be noted that the decision letter does not purport to deal with the appeal that had been made on ground (a). That was unnecessary if the...

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