Wells v Minister of Housing and Local Government
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DAVIES,LORD JUSTICE RUSSELL |
| Judgment Date | 11 May 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J0511-6 |
| Date | 11 May 1967 |
| Court | Court of Appeal (Civil Division) |
[1967] EWCA Civ J0511-6
The Master of The Rolls
(Lord Denning)
Lord Justice Davies and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From the Divisional Court Queen's Bench Division
MR DOUGLAS FRANK, Q. C. and LORD De MAULEY (instructed by Messrs Tuck & Mann and Geffen & Co.) appeared as Counsel for the Appellants.
The Hon. S. C. SILKIN, Q. C. and MR NIGEL BRIDGE (instructed by the Solicitor, Ministry of Housing & Local Government) appeared as Counsel for the Respondents.
There is a large builder's yard at Leather-head. It is set in the midst of a residential area close to the playing-fields of St. John's School and not far from the Leather-head by-pass. The builder's yard covers over three acres and has several buildings on it. It is occupied by a firm of builders' merchants. For many years they have made concrete blocks there in a building which is 32 ft. high.
The builders' merchants undoubtedly have "existing use" rights which unable them to carry on their existing processes without getting planning permission. They are also entitled to erect a new structure for use in those processes: provided it does not exceed 50 ft. in height and does not materially affect the external appearance, see Class VIII of the General Development Order.
In December 1962 the builders' merchants proposed to erect in the yard a "concrete batching plant". This is a plant in which concrete is mixed ready for use; and then, whilst wet, is taken round in lorries to building sites in the district. The proposed plant was only to be 27 ft. 6 ins. high and did not materially affect the external appearance. But it was not an existing process. It was a new process which the builders' merchants had not carried on before. So it might not come within Class VIII and might need planning permission. At any rate, in order to clear up any difficulties, the architect on the 21st December, 1962, applied to the Leatherhead Urban District Council (who are the delegates of the Planning Authority) for planning permission. He enclosed a drawing of the proposed batching plant 27 ft. 6 ins. high and added that "the plant is sited so that it is screened by existing trees and has been designed so that the height of the structure is lower than the existing workshops … Subject to planning permission being obtained, bye-law permission will be sought regarding details".
On the 1st March, 1963, the Council Surveyor repliedto the architect: "I am instructed to inform you that the works proposed can be regarded as 'permitted development' under Class VIII of the Town and Country Planning Development Order, and it is therefore not proposed to take any further action on your application. My Council have, however, asked me to request your co-operation in arranging for a scheme of tree planting to be carried out along the southern boundary of your site in order to preserve the amenities of the locality. I note that you will be supplying bye-law details in due course".
The builders' merchants did not, however, erect the 27 ft. 6 ins. plant. They changed their minds and decided to build a much higher plant which was 48 ft. high. This was so high that it would materially affect the external appearance. It did not satisfy the conditions of Class VIII, and on that account, beyond all doubt, it needed planning permission. But the architect did not appreciate this. He thought this bigger plant was covered by the previous letter of the 1st March, 1963. So he only applied for bye-law consent. On the 30th December, 1963, he filled in a form of application for bye-law consent enclosing a plan of the new proposed 48 ft. plant. At the foot of the form there was a printed notice saying: "Application for consent under the Town Planning Acts should be made on a separate form available at the Council Offices on request". But the architect thought that this did not apply in this case. He wrote on the form: "Permitted development consent granted 1st March, 1963".
The Council and their officers seem to have been under the same misapprehension as the architect. The Council on the 23rd January, 1964, granted the bye-law consent: and when they sent out the official notification, the following words on the form were deleted with a line drawn through them: "No action should be taken hereunder till the approval of the Town Planning Authority and Licensing Authority have been obtained".
Although deleted, those words were still legible. Theperson who deleted them must have thought that planning permission was not necessary in this case. Hence he struck out the words which said that planning approval should be obtained. This deletion no doubt confirmed the architect in his belief that no planning permission was necessary. He told the builders' merchants that they could safely go ahead and erect the 48 ft. plant.
So the builders' merchants, believing that no planning permission was necessary, erected the 48 ft. plant. At once the residents complained. No doubt they objected to the appearance, but their main grievance was the nuisance and annoyance caused by the traffic. The big lorries came in and out along their residential roads with ready-mixed concrete. Faced with these complaints, the local Council took action. They served an enforcement notice requiring the builders' merchants to take down the 48 ft. plant. The builders' merchants appealed to the Minister. He upheld the enforcement notice. They appealed to the Divisional Court. The Judges were divided in opinion. The majority (Lord Parker, Chief Justice, and Mr Justice Widgery) allowed the appeal in part and remitted the matter to the Minister for reconsideration. Lord Justice Salmon would have allowed the appeal altogether and quashed the enforcement notice. Both sides appeal to this Court.
1. The 27 ft. 6 ins. Plant:
In the letter of the 1st March, 1963, the Council said that the 27 ft. 6 ins. plant could be regarded as permitted development under Class VIII. The builders' merchants rely on that letter. They say that it amounted to a determination under Section 43 of the 1962 Act that no planning permission was required: and that this determination cannot be revoked.
The Minister says that it was no such thing. In order for there to be a valid determination under Section 43, there must be, he says, a written application for the purpose, either by itself or combined with an application for planning permission:and that, in the absence of a written application, the letter of the 1st March, 1963, was of no effect. The Minister goes so far as to say that, even if the builders' merchants on the faith of the letter had erected the 27 ft. 6 ins. plant, the Planning Authority could have come along with an enforcement notice and compelled them to take it down.
Pressed on the point, Counsel for the Minister said that the letter of the 1st March, 1963, was of no effect unless the architect followed it up by a formal application under Section 43: "Will you please determine whether planning permission is required?", and received the answer: "None is required". I cannot believe that is correct. If we were to require the applicant to go through such a formality, it would be a work of supererogation. Nay more, it would be a trap. Anyone receiving such a letter as the 1st March, 1963, would think that was enough. He would not dream of doing more. Nor should he be bound to do so.
Now I know that a public authority cannot be estopped from doing its public duty: but I do think it can be estopped from relying on technicalities; and this is a technicality, to be sure. We were told that for many years the Planning Authorities, including the Minister himself, have written letters on the same lines as the letter of the 1st March, 1963. It has been their practice to tell applicants that no planning permission is necessary. Are they now to be allowed to say that this practice was all wrong and their letters were of no effect? I do not think so. I take the law to be that a defect in procedure can be cured, and an irregularity can be waived, even by a public authority, so as to render valid that which would otherwise be invalid. Thus in Robertson v. Minister of Pensions, 1949, 1 King's Bench, page 227, an assurance (that Colonel Robertson's disability was accepted as attributable to war service) was held binding on the Crown, even though it was given independently by the War Office instead of the Ministry of Pensions. And in Howell v. Falmouth Boat Co., 1951 Appeal Cases, page 837, a defectin the licence (about the cocktail bar) was disregarded by the House of Lords, see page 848.
So here the position is this: On the 21st December, 1962, the builders' merchants made in writing an application for planning permission. They made no written application for a determination under Section 43. But that omission was a defect in procedure only. It did not prevent the Planning Authority from considering the matter if they thought fit. If they decided that it was unnecessary, they were entitled to tell the applicants so. Once the Planning Authority determined that no planning permission was necessary, and told the applicant so, that was a determination within Section 43, even though there had been no formal application before them for that purpose.
I hold, therefore, that the letter of the 1st March, 1963, was a valid determination under Section 43: and as such it was irrevocable by the Planning Authority, just as is a planning permission. I put it on the ground that the Planning Authority waived any formal application and determined the matter straight away.
Another way of putting it would be to say that the application for planning permission contained an implied invitation to the Planning Authority to...
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