Western Fish Products Ltd v Penwith District Council and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW |
| Judgment Date | 22 May 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0522-6 |
| Date | 22 May 1978 |
| Court | Court of Appeal (Civil Division) |
[1978] EWCA Civ J0522-6
Lord Justice Megaw
Lord Justice Lawton and
Lord Justice Browne
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from Order of Mr. Justice Walton - London)
Mr. CHARLES SPARROW, Q.C. and Mr. GAVIN LIGHTMAN (instructed by Messrs. Lewis Lewis & Co,) appeared on behalf of the Appellants (Plaintiffs).
Mr. BERNARD MARDER, Q.C. and Mr. KONRAD SCHIEMANN (instructed by Messrs. Sharpe, Pritchard & Co.) appeared on behalf of the Respondent District Council.
Mr. HARRY WOOLF and Mr. JEREMZ SULLIVAN (instructed by the Treasury Solicitor) appeared on behalf of the Respondent Department.
The appeal is dismissed, for the reasons given in the Judgment of the Court, which is now being handed down.
This is an appeal by the Plaintiffs, Western Fish Products Limited, from the dismissal of their action by Mr. Justice Walton in a judgment delivered on 19th November 1977. The Defendants are Penwith District Council. In this Court, in circumstances to be mentioned hereafter, leave was given for the Department of the Environment to be joined as a Respondent to the appeal. The action arose out of the refusal by the Defendant Council of planning permissions sought by the Plaintiffs in respect of a factory which they had planned to bring into production at Stable Hobba in Penwith, Cornwall, in the area for which the Defendant Council was the local planning authority; the refusals were followed by the issue of Enforcement Notices and Stop Notices.
OUTLINE OF ISSUES
This appeal raises points which may, very broadly, be stated as follows:
(A) Did the Defendant Council make representations to the Plaintiffs as to what the Plaintiffs were permitted to do on the Stable Hobba site in such circumstances that the Defendant Council became estopped from making decisions contrary to the representations, and so that, the Defendant Council having made or purported to make such decisions, the Plaintiffs are entitled to damages and other relief?
(B) Did the Defendant Council make any determination under section 53 or section 94 of the Town and Country Planning Act 1971 (hereinafter called the Act) and, if so, what is the effect?
(C)Did the Defendant Council act in abuse of their statutory powers, or act negligently, so as to give the Plaintiffs the right by action in a court of law to claim damages or any other remedy?
The hearing before Mr. Justice Walton lasted nineteen days. The hearing of the appeal, which was expedited by order of another Division of the Court, took twenty-eight days. The issues which were raised were multifarious and in many respects interlocking: that is, the question whether a particular issue required decision for the purpose of the decision of the appeal and, if so, on what basis it had to be approached, depended upon the decision of another issue or issues. In the end it is not necessary for us to deal with all the points which were argued. As to a number of them which it is necessary or desirable for us to consider in this judgment, we shall, without disrespect to counsel's arguments, express our conclusions on fact or law without elaboration, and without attempting to set out counsel's arguments in anything like-the fullness with which they were helpfully presented.
We shall first set out, as briefly as is practicable, an outline of the events giving rise to the action. We shall then summarise the pleadings. It will be necessary thereafter to fill in further detail of facts in respect of some of the issues.
OUTLINE OF FACTS
The Plaintiff company, the Appellant in this Court, is Western Fish Products Limited. It is a member company of a group of companies called the Duncan Tucker Group. Mr. John de Savary is Chairman and Managing Director of the parent company, Duncan Tucker Limited. He was also the Chairman of the Plaintiff company and its principal representative in its activities relevant to the present case.
The site at Stable Hobba, with the buildings of a disused factory on the site, were bought by or on behalf of the Plaintiff company in April, 1976. The use which the Plaintiffs intended to make of the property was to establish and carry on there a business of manufactureof fish oil and fishmeal, the fishmeal for use as animal food, and of the preparation and packing of fresh fish for human consumption. This project involved the demolition of some of the old buildings, the repair or alteration of others of the old buildings and, in some instances, re-building where demolition became necessary. It also involved substantial new buildings, including a tall chimney. It also involved the installation of machinery. Arrangements for the intake of water and the outfall of effluent and sewage were also necessary, as well as provision for access of transport. It was contemplated that a very large sum of money would be spent, and a very large sum was in fact spent. It was hoped that it would be possible to start the new business by the late summer or autumn of 1976. It was hoped that it would prove very profitable. As the action was by consent limited to liability, any issue as to the amount of damages remaining over, the Court has not been concerned with figures. But it would seem that the figure which the Plaintiffs have indicated as being their potential claim for damages, including loss of anticipated profits, is very large indeed. A figure running into millions of pounds has been mentioned.
In addition to Mr. de Savary, the person who was most concerned on behalf of the Plaintiffs with the relevant events and discussions was Mr. Smithies, an employee of a firm of architects who acted on behalf of the Plaintiffs.
The action is concerned with the relationship between the Plaintiff company and the Defendants, Penwith District Council, in their capacity as the local planning authority. Their representatives who were primarily concerned with the relevant events are Mr. Giddens, who was deputy to the Chief Planning Officer, Mr. Smith, and Mr. Rowland, the solicitor to the Defendant Council.
The factory at Stable Hobba had been used in the past by itsprevious owners for the production of fertiliser. From 1965 until 1972 the manufacture had been by a process of composting a mixture of fish and cocoa waste. In 1972 the composting process ceased. From then until 1975 different materials and different processes were used. Fishmeal was bought from outside and brought to the factory. There it was mixed with various chemicals. In 1975 the business had ceased to be profitable and it was closed down. The machinery was out of date. Many of the buildings were in need, at least, of substantial repair if they were to be used for any purpose. The staff had been paid off in April 1975, the plant and machinery had been removed and by the end of December 1975 the company had ceased trading. The factory premises were put on the market. They were bought by, or for, the Plaintiff company in April 1976 for the purpose which we have mentioned.
At a meeting on 7th April 1976 between Mr. de Savary and Mr. Smithies, for the Plaintiffs, and Mr. Giddens representing the Defendant Council's Chief Planning Officer, Mr. de Savary explained to Mr. Giddens the intended project and asserted that there existed an "established user right" as a result of the processes which had been carried on in the factory by its previous owners. Therefore, according to Mr. de Savary, the Plaintiffs were entitled to carry on their intended processes without the necessity for obtaining planning permission in respect of the intended use. Mr. Giddens said the Plaintiffs must satisfy him of their entitlement and should supply information in writing. Mr. Giddens said that if the Plaintiffs did so satisfy him, the Defendant Council would do everything that they could to assist the Plaintiffs, and would not obstruct them.
The Plaintiffs wrote two letters, on 8th and 17th April, supplying information. In reply, on 26th April Mr. Giddens, on behalf of the Chief Planning Officer, wrote a letter. That letter in conjunction withwhat had been said on 7th April, according to the Plaintiffs' case, when acted upon by the Plaintiffs by the expenditure of money, constituted, or gave rise to, a "proprietary estoppel". That, coupled with the further estoppel, or other part of the estoppel, which is said to have arisen from Mr. Giddens's verbal assurances about cooperation with the Plaintiffs, is the principal basis of the Plaintiffs' case. These estoppels were, it is contended, confirmed by the subsequent conduct of the Defendant Council, which, it is said, stood by while the Plaintiffs to their knowledge continued to act on the faith of the representations. The Plaintiffs proceeded with all possible expedition to renovate, and in some cases to rebuild, parts of the old buildings, to start the erection of some new buildings and to prepare to install expensive machinery from Norway. Some of these operations unquestionably required planning permission. The work was started and carried on, to the knowledge of the Defendant Council's representatives, without planning permission having been obtained.
On 6th July 1976 in a telephone call Mr. Giddens asked Mr. Smithies to submit outstanding planning applications and also an application for an Established Use Certificate (section 94 of the Act). Mr. Justice Walton has found that in the course of that telephone conversation Mr. Giddens told Mr. Smithies that the application for the Established Use Certificate was purely a formality. As a result Mr. Smithies caused that application to be submitted, in addition to the planning applications.
By a letter of 7th July, following the telephone call, the Chief Planning Officer, in a letter drafted by Mr....
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