Once More Unto The Breach Of Legitimate Expectation, Dear Friends

Life can be tough. A public authority may have complied with the letter of the law but by its actions you feel that you have been treated unfairly. 
Of course, complying with what the legislation strictly requires is not the limit of an authority’s legal responsibilities. The authority also must comply with wider principles of administrative law, which include:
– not making a decision which is irrational (very difficult to persuade a court that a decision is irrational)
– not having a closed mind (challenges of local planning authorities these days on that ground have been made more difficult by section 25 of the Localism Act 2011)

– a basic duty of procedural fairness, which includes a “duty of consultation…where there is a legitimate of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation.” (Lord Reed in R (Moseley) v London Borough of Haringey (Supreme Court, 24 October 2014).

Given that estoppel (eg holding a planning officer to an assurance that they may have given you) really has very little place in the planning system since R v East Sussex County Council, ex parte Reprotech (Pebsham) Ltd (House of Lords, 28 February 2002), there have inevitably been many attempts to persuade the courts that there has been procedural unfairness – that there has been a breach of a legitimate expectation that you would be consulted before the authority takes a particular decision. 
The purpose of this blog post is simply to make the obvious point that it isn’t that easy. The courts draw the concept very tightly. 
The most comprehensive recent summary of the principles of procedural and substantive legitimate expectation in our little planning law world is set out by Dove J in Richborough and others v Secretary of State (12 January 2018), the written ministerial statement case, where various house builders and land promoters sought to argue that on the basis of the Government’s “regular past practice, there was a legitimate expectation that the defendant would consult the house building industry in relation to:


a. any change to National Planning Policy for housing, or alternatively, 


b. any major change for National Policy for housing or, alternatively,


c. any major change to the policy pertaining to five year housing supply in national policy.”

Dove J reviewed the case law and identified from a Court of Appeal ruling, Bhatt Murphy v Independent Assessor (2008), that for procedural legitimate expectation (the right to be consulted before a decision or policy change) there has to be “an unequivocal assurance, whether by means of an express promise or an established practice, that it will give notice or embark upon consultation...”. For substantive legitimate expectation (the right to compel the authority to continue a policy rather than change or abolish it) there is the additional requirement that the court will have to “decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power“. 
Unequivocal” is a high threshold. In Richborough, Dove J found that “the evidence does not establish that there has been an unequivocal assurance on the basis of practice that a WMS in relation to national planning policy for housing would not be issued without prior consultation. It is clear that on at least two occasions the defendant has issued WMS without consultation affecting national planning policy for housing. Thus I am unconvinced on the evidence that the claimants have established a legitimate expectation that they would be consulted on the WMS.”
This month, procedural legitimate expectation was sought to be relied upon as a ground of challenge in Kebbell Developments Limited v Leeds City Council (Court of Appeal, 14 March 2018). Here, the challenge was to Leeds City Council’s modifications made, without consultation, to a neighbourhood plan following receipt of the inspector’s report and before putting it to a referendum. The unfortunate owners of a development site potentially prejudiced by the additional wording introduced sought to argue without success that there was a legislative requirement for consultation with an additional argument that not to consult would in any event be procedurally unfair. The Court of Appeal rejected all grounds. Lindblom LJ gave the main judgment but Singh LJ (elevated to the Court of Appeal last year and with a formidable public law background) gave an additional judgment, which includes a useful analysis of the duty to consult, dividing it into two types:
– “procedural fairness in the treatment of persons whose legally protected interests may be adversely affected” (which is what we have been looking at so far in this blog post). He doesn’t see this strictly as a duty of consultation:
Procedural fairness in the former context is really the modern term for what used to be called “natural justice”, in particular the limb of it which used to be called audi alteram partem (“hear the other side”). Public law no longer talks of “judicial” or “quasi-judicial” disputes and so even the notion of a “hearing” seems inapt now but the fundamental requirement of procedural fairness is to give an opportunity to a person whose legally protected interests may be affected by a public authority’s decision to make representations to that authority before (or at least usually before) the decision is taken. To refer to “consultation” in that context is not wrong as a matter of language but I think it would be better to avoid using it in that context, so as to avoid confusion with the sense in which it is used in the context of public participation in a public authority’s processes for making policy or perhaps some form of legislation such as rules.”
– “public participation in a public authority’s decision-making process“, where the source of the authority’s obligation will very often be legislation. (Although not always, it seems to me, eg cases in relation to authorities’ statement of community involvement – authorities fail to comply with their SCI at their peril). 
It seems to me that this constrains the ambit of the breach of legitimate expectation principle even further. 
The Court of Appeal may conceivably return to the question of legitimate expectation before long, given that according to Landmark Chambers the court has given permission for an appeal in R (Save Britain’s Heritage) v Secretary of State (Lang J, 29 November, 2017). This was the challenge to the Secretary of State’s decision not to call in the Paddington Cube application for his own determination. As set out in the judgment, Save argued that the “decision was unlawful because he failed to give reasons for not calling in the applications, in breach of the Claimant’s legitimate expectation that reasons would be given. The legitimate expectation arose from a change in practice, announced in a Green Paper and in Parliament in December 2001. Thereafter, ministers began to give reasons for not calling in planning applications, when previously they had not done so.
Lang J had rejected the claim:
“In this case, in 2001, a new practice of giving reasons for non-intervention was introduced by the then minister, and it was clearly and unequivocally announced in the Green Paper, and in Parliament. In my view, this could well have given rise to a legitimate expectation that reasons would be given for non-intervention, if it had remained in operation. A failure to give reasons in accordance with the established practice could have been a potential breach of the legitimate expectation, and thus unlawful unless justified. 


However, by the date of the Claimant’s application to the Defendant in December 2016 and the Defendant’s decision in March 2017, there was no longer an established practice that reasons would be given for a decision not to call in an application. On the contrary, the established practice was that reasons would not be given. I consider that the earlier statements and practice relied upon by the Claimant had been superseded by 2016/2017 and so could no longer found an expectation that reasons would be given. If any such expectation was held, it had ceased to be a legitimate one, because of the change in practice.”

Despite permission to appeal having been given, I wonder whether Save will proceed. According to the Landmark summary it seems that the court has made clear that even if the challenge is successful it will not result in the quashing of the permission which Westminster City Council has now issued. What is sought is also a classic example of a substantive rather than procedural legitimate expectation – ie not that the claimant should have been consulted, but that the defendant should not have changed its policy, which engages the additional test I set out earlier. 
Two earlier failed claims by way of example:
In R (Leicestershire Police and Crime Commissioner) v Blaby DC (Foskett J, 27 May 2014) a police force tried to argue that it had a legitimate expectation of further consultation in relation to planning obligations, from which it would benefit, before a section 106 agreement was completed. 
The judge said this:
“There is, of course, a good deal of authority on the issue of legitimate expectation. I am quite prepared to accept for present purposes that a course of dealing between two parties in the kind of context with which this case is concerned can in some circumstances give rise to a legitimate expectation that some particular process will be followed by the public authority the subject of the challenged decision before the decision is taken. The course of dealing can be on such a basis that the necessarily “clear and unambiguous” representation upon which such an expectation is based may arise.

Did anything of that nature arise in this case? I do not think so. What one can see from the communications to which I have referred is a pattern of negotiation, in effect between the Claimant and the developers with the Defendant as the intermediary, where no unequivocal representation was made by the Defendant that could have led to an expectation that it would be consulted “on the level of and timing of the delivery of the contribution”. That having been said, however, there can be little doubt that the Defendant was aware of the Claimant’s view on the timing of the premises contribution which, in one sense, was the most significant part of what was required by way of infrastructure funding. The equipment contribution was discussed and the police could have given “chapter and verse” on that if they had chosen to do so prior to the final discussions between the Defendant and the developers. However, I do not see any basis for a specific obligation on the Defendant’s part to inquire about that.”
A second failed example, this time as to substantive legitimate expectation, in R (on the application of Godfrey) v Southwark LBC (Court of Appeal, 24 April 2012):
The claim is based on the council’s failure to give effect to an understanding in relation to the provision of a community centre as a part of the proposed development. It was submitted that the council has failed to take account of a material planning consideration, the project brief, and that the council has not implemented its own policy 7P. Further, there was a substantive legitimate expectation that better facilities would be provided than have been provided by the permission. Reliance is placed on documents issued by the council in 2002 and 2003 and discussions which took place at that time between council officers and local residents.

Again, on the facts the claim was rejected. 

All of this is not to say that a breach of legitimate expectation claim will never succeed. In R (Majed) v London Borough of Camden (2010), the Court of Appeal held that a local planning authority‘s statement of community involvement gave rise to a legitimate expectation that the consultation set out in it (which was additional to the statutory minimum) would be carried out. The Court held that legitimate expectation came into play when there was a promise or a practice to do more than that which was required by statute and that the statement of community involvement issued by the local authority was a “paradigm example” of such a promise and practice.

This was revisited in R (Gerber) v Wiltshire Council (Court of Appeal, 23 February 2016), although, as so often, the claim failed on the facts:
“40. With respect to the judge, I accept the submission of the appellants that he erred in his ruling that on its proper interpretation the SCI contained an unambiguous promise to consult Mr Gerber directly about the application for planning permission, which the Council failed to honour. The judge arrived at this conclusion by running together para. 5.6 of the SCI with the summary of the position in Appendix 1 to the SCI, set out above. In my judgment, however, on a proper interpretation of the SCI the relevant policy is that set out in para. 5.6, and it cannot be said that it is possible to read that in conjunction with Appendix 1 in order to spell out a clear and unambiguous promise in accordance with the relevant standard in MFK Underwriting Agencies that any neighbour affected by an application for planning permission would be consulted directly by the Council.
41. Paragraph 5.6 of the SCI is clearly set out within that document as the relevant policy for consultation of neighbours. It is expressly directed to consultation of the owners of properties adjoining sites for proposed development. Gifford Hall does not adjoin the Site in the present case, so Mr Gerber could not bring himself within the scope of para. 5.6.

42. In my view, it is not possible to say that the text in Appendix 1 leads to the conclusion that the SCI contains a clear and unambiguous promise that anything more extensive will be done by the Council by way of consultation: (i) para. 5.6 is drafted in precise terms which conflict with the wider interpretation which the judge sought to spell out of the SCI, so at best (from Mr Gerber’s point of view) there is an ambiguity in the SCI; but in any event, (ii) para. 5.6 is highlighted in the main text of the SCI and clearly identifies the content of the relevant policy in the SCI, so it must be regarded as setting out the definitive statement of what the Council promises to do; and (iii) Appendix 1 to the SCI, although poorly drafted, is not part of the main text of the document and does not purport to set out definitive policy promises or to qualify the main text of the SCI, but only sets out a summary of different options to make broad comparisons between them. 

43. Although the proper interpretation of the SCI is an objective matter for the court and the way in which the parties may have read the SCI is in no way definitive, I think it is fair to point out that in the letter of 22 April 2014 Mr Gerber and his then solicitors identified para. 5.6 in the SCI, and not Appendix 1, as containing the relevant statement of policy by the Council. In my opinion, they were correct to do so.

44. There was, therefore, no breach of legitimate expectation by the Council. Mr Gerber says that other non-adjoining properties received individual notifications of the application for planning permission, but the Council has given an explanation why that happened which appears reasonable. The important point for present purposes, however, is that whether the Council’s explanation is accepted or not, this feature of the case does not support Mr Gerber’s legitimate expectation submission, founded as it is on what he maintains the Council promised in the SCI itself.”

When you feel wronged, as undoubtedly all of these claimants did, it can be tempting to expect your lawyer to raise sword of justice above head and invoke the spirit of Henry V, Act III, Scene 1, and not very Shakespearean to be talking of proceeding with caution, but what you definitely need is unequivocal assurance in more ways than one. 

Simon Ricketts, 24 March 2018
Personal views, et cetera

Author: simonicity

Partner at boutique planning firm, Town Legal LLP, but this blog represents my personal views only.

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