Factual and Procedural Background
The Appellant owned a waste-treatment plant constructed in 1989 and vested in a wholly-owned company (“Company A”). In 1990 Company A decided to sell the plant and prospective purchasers queried whether using waste to generate electricity would amount to a material change of use requiring planning permission.
Instead of making a formal application under section 64 of the Town and Country Planning Act 1990 (“the 1990 Act”), Company A applied under section 73 to vary condition 10 of the existing permission so that electricity-generating turbines could run continuously. On 27 February 1991 the Development Control Sub-Committee resolved to grant permission subject to conditions, but no formal decision notice was ever issued.
The Respondent purchased the plant in May 1991, aware only of the committee’s resolution. In 1992 Company A formally withdrew the section 73 application. After protracted correspondence, the Respondent issued an originating summons and sought judicial review, contending that the 1991 resolution (or earlier officer advice) amounted to a binding determination that no further planning permission was required.
Tucker J granted declarations and a mandatory order in the Respondent’s favour. A majority of the Court of Appeal upheld that decision. The Appellant appealed to the House of Lords.
Legal Issues Presented
- Does a committee resolution, reached without any application under section 64 of the 1990 Act, nonetheless constitute a statutory “determination” that no planning permission is required?
- Can the planning authority be prevented, by estoppel, legitimate expectation or similar doctrines, from denying that electricity generation is lawful without further permission?
- Did the courts below have jurisdiction to grant declaratory relief on the question of material change of use outside the statutory certificate procedure now contained in sections 191–192 of the 1990 Act?
Arguments of the Parties
Appellant's Arguments
- The 27 February 1991 resolution lacked the statutory hallmarks of a section 64 determination: there was no application, no public register entry, no consultation with the district authority or the Secretary of State, and no written decision notice.
- Any views expressed by planning officers or the committee were informal and could not create a binding legal result.
- Public-law principles, not private-law estoppel, govern planning control; the authority cannot be estopped from performing its statutory duties.
- The declarations granted below trespassed upon matters reserved to the certificate and enforcement procedures of the 1990 Act and should be set aside.
Respondent's Arguments
- Construed against the contemporaneous planning officer’s report, the committee resolution necessarily affirmed that electricity generation was ancillary to the existing waste-treatment use; following the reasoning in Mannai, that was how a reasonable recipient would understand it.
- Under the authority of Wells v Minister of Housing, a formal application is not indispensable; the resolution therefore operated as a section 64 determination.
- Alternatively, the Appellant is estopped—by representation or by convention—from denying that permission exists, because the Respondent purchased the site in reliance on the resolution.
- Even if neither proposition succeeds, the evidence shows that electricity generation is not a material change of use, so the court could properly grant a declaratory remedy.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 |
Documents are construed as they would be understood by a reasonable recipient in context. |
Used by the Court of Appeal; the House accepted its general principle but held that the resolution still lacked statutory effect. |
| Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 |
A determination may sometimes arise without an express application. |
Distinguished; the House held the present facts could not satisfy section 64. |
| Western Fish Products Ltd v Penwith District Council [1981] 2 All ER 204 |
Limits of estoppel against public authorities. |
Cited to criticise expansive use of estoppel in planning law. |
| Newbury District Council v Secretary of State for the Environment [1981] AC 578 |
Private-law estoppel should not override public-law planning control. |
Supported the view that planning law must remain distinct from private-law estoppel. |
| R v Leicester City Council, ex p. Powergen UK Ltd [2000] JPL 629 |
Judicial comments on difficulties with estoppel in planning. |
Quoted to reinforce the need for public-law analysis. |
| R v North & East Devon Health Authority, ex p. Coughlan [2001] QB 213 |
Concept of legitimate expectation as a public-law analogue of estoppel. |
Used to explain why legitimate expectation, not estoppel, governs public-law rights. |
| Pyx Granite Co Ltd v Ministry of Housing and Local Government [1960] AC 260 |
Availability of declaratory relief before statutory changes. |
Cited to explain that the statutory position has since been altered. |
| Thrasyvoulou v Secretary of State for the Environment [1990] AC 273 |
Exclusive statutory procedure for challenging enforcement notices. |
Relied on to show that declaratory relief should not bypass statutory routes. |
| Lever Finance Ltd v Westminster City Council [1971] 1 QB 222 |
Early use of estoppel language in planning law. |
Mentioned historically; the House preferred modern public-law doctrine. |
Court's Reasoning and Analysis
1. Was there a statutory determination? A determination under section 64 had to follow the statutory scheme: a written application, entry on the public register, consultation with the district authority, opportunity for call-in by the Secretary of State, and written notification. None of these elements existed. The committee’s conditional resolution was no more than an authorisation to issue a permission once noise conditions were satisfied; it had no immediate legal effect and could not impliedly amount to a section 64 determination.
2. Estoppel and legitimate expectation. The planning officer’s informal opinion and the committee resolution were not representations on which a reasonable purchaser could rely as creating a legal entitlement. Even if reliance had been shown, private-law estoppel cannot override the public interest inherent in statutory planning control. Public-law concepts of legitimate expectation already address fairness without displacing statutory requirements.
3. Declaratory relief. After amendments to planning legislation, challenges to enforcement must proceed through the statutory certificate and appeal procedures. Granting declarations that no permission is required would undermine the exclusive jurisdiction of those procedures and serve no practical purpose.
4. Distinguishing earlier authority. The majority decision in Wells was limited to its facts—a refusal letter intended to have immediate legal consequences. By contrast, the 1991 resolution never purported to decide the lawfulness of electricity generation and remained conditional and ineffective.
Holding and Implications
APPEAL ALLOWED. The originating summons and application for judicial review were dismissed.
Direct consequence: the Respondent possesses no determination or planning permission for electricity generation and must pursue the statutory certificate or planning application route. The judgment clarifies that informal officer advice and committee resolutions, unless processed through the statutory framework, do not create binding planning rights and that private-law estoppel has no place in overriding public-law planning controls. No new legal precedent was set, but the decision reinforces the boundary between public-law planning procedures and private-law doctrines.