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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
    1. Congreve v Home Office [1976] QB 629; [1976] 1 All ER 697.
    2. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    3. Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694
    4. H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871
    5. British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165
    6. Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724
    7. Robertson v Minister of Pensions [1948] 2 All ER 767
    8. Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496
    9. Western Fish Products Ltd v Penwith District Council and another [1981] 2 All ER 204
    10. R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643
    11. Brind and others v Secretary of State for the Home Department [1991] 1 All ER 720
    12. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256; [1996] QB 517
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496

LORD DENNING MR:.... Lever (Finance) Ltd are developers who propose to develop a piece of land. Their architect, Mr Rottenberg, made application for planning permission to the Westminster City Council.... On 24 March 1969, the planning authority gave permission for that development in accordance with the detailed plan submitted. It permitted the erection of 14 two-storey houses with garages on the site. But it so appears that a month later, when the architect was getting out a further site plan, he made some variations.....So he moved house G a distance of 17 feet nearer to Melina Place. In the original plan which had been approved, house G was 40 feet away from the houses in Melina Place. The architect sent this further site plan to the planning authority's officer, who had been dealing with all these matters, a Mr Carpenter.... Mr Carpenter, according to his own note, told Mr Rottenberg that the variations were not material. In this respect I fear that Mr Carpenter made a mistake. That variation was material...

Howsoever that may be, Mr Rottenberg acted on what he was told. He did not put in an application for further permission so as to sanction the variations.... So he proceeded to get on with the work. Some of the houses were started in June. House G itself was started in September 1969. The foundations were set out. The houses started to go up. At that point some of the residents in Melina Place were disturbed. They had, apparently, been assured by the architect in the initial stages that house G would be 40 feet away. Now, seeing that it was only 23 feet away, they made representations to the planning authority.....

So, on 17 March 1970, Mr Rottenberg applied for permission for the variations. The planning officers supported the application..... But the committee rejected this recommendation. It refused to sanction the variations. It did not grant the application. No doubt it felt that the residents in Melina Place had good cause for complaint....

This put the developers in a quandary. The house was up. The roof was on. But the windows were not in. It had not been glazed. They did not know whether to take it down or not. So they moved the court urgently. Within two days, on 21 May 1970, they issued a writ against the planning authority claiming a declaration that they were entitled to complete the house on the site where it was. They asked for an injunction to restrain the planning authority from serving an enforcement notice. An interim injunction was obtained. The action was expedited. It was tried before Bridge J on 18 and 19 June 1970. He decided in favour of the developers. The planning authority appeal to this court.....

The judge...found that, after detailed planning permission had been given, it is a common occurrence to find that minor modifications are needed; and that when the necessity does arise, the common practice is for the developers' architect to submit any such proposed minor modifications to the consideration of the planning officer. If, in that planning officer's view the modification is not material he says so, and [the] development goes forward in accordance with the modified plans as approved in that sense by the planning officer, and nobody on either side considers it necessary to submit a further application. That is an eminently sensible practice.

Counsel for the planning authority accepted- as he must accept - that that is the practice. But he says that it is not binding on the planning authority. He says that Parliament has entrusted these important planning decisions to the planning authority and not to the planning officer of the council; and, no matter that the planning officers tell a developer that a variation is not material, it is not binding on the planning authority. They can go back on it. Counsel says that it is for the developer's architect to shoulder the responsibility. He must make up his own mind whether it is material. He can take the opinion of the planning officer, but it is eventually the architect's own responsibility. If the variation should turn out to be a material variation, and he has not got permission for it from the planning authority, then so much the worse for him. He ought not to have relied on the planning officer's opinion. The planning authority, he said, are quite entitled to throw over the opinion of their planning officer.

I can see the force of counsel's argument, but I do not think that it should prevail. In my opinion a planning permission covers work which is specified in the detailed plans and any immaterial variation therein. I do not use the words 'de minimis' because that would be misleading. It is obvious that, as the developer proceeds with the work, there will necessarily be variations from time to time. Things may arise which were not foreseen. It should not be necessary for the developers to go back to the planning authority for every immaterial variation. The permission covers any variation which is not material. But then the question arises: who is to decide whether a variation is material or not? In practice it has been the planning officer. This is a sensible practice and I think that we should affirm it. If the planning officer tells the developer that a proposed variation is not material, and the developer acts on it, then the planning authority cannot go back on it. I know that there are authorities which say that a public authority cannot be estopped by any representations made by its officers. It cannot be estopped from doing its public duty. See, for instance, the recent decision of the Divisional Court in Southend-on-Sea Corpn v Hodgson (Wickford) Ltd. But those statements must now be taken with considerable reserve. There are many matters which public authorities can now delegate to their officers. If an officer, acting within the scope of his ostensible authority, makes a representation on which another acts, then a public authority may be bound by it, just as much as a private concern would be. A good instance is the recent decision of this court in Wells v Minister of Housing and Local Government. It was proved in that case that it was the practice of planning authorities, acting through their officers, to tell applicants whether or not planning permission was necessary. A letter was written by the council engineer telling the applicants that no permission was necessary. The applicants acted on it. It was held that the planning authority could not go back on it. I would like to quote what I then said ([1967] 2 All ER at 1044): "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".

So here it has been the practice of the planning authority and of many others, to allow their planning officers to tell applicants whether a variation is material or not. Are they now to be allowed to say that that practice was all wrong? I do not think so. It was a matter within the ostensible authority of the planning officer; and, being acted on, it is binding on the planning authority.