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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

Western Fish Products Ltd v Penwith District Council and another [1981] 2 All ER 204

MEGAW LJ:...The second reason why the plaintiff's own case cannot succeed is this. The defendant council's officers, even when acting within the apparent scope of their authority, could not do what the 1971 Act required the defendant council to do; and if their officers did or said anything which purported to determine in advance what the defendant council themselves would have to determine in pursuance of their statutory duties, they would not be inhibited from doing what they had to do. An estoppel cannot be raised to prevent the exercise of a statutory discretion or to prevent or excuse the performance of a statutory duty.... The application of this principle can be illustrated on the facts of this case: under s 29 of the 1971 Act the defendant council as the planning authority had to determine applications for planning permission, and when doing so had to have regard to the provision of the development plan and 'to any other material considerations'. The plaintiffs made an application for planning permission to erect a tall chimney on the site. When considering this application the defendant council had to 'take into account any representations relating to that application' which were received by them following the publishing and posting of notices: see ss 26 and 29(2). This requirement was in the interests of the public generally. If any representations made by the defendant councils before the publication or posting of notices bound the council to act in a particular way, the statutory provision which gave the public opportunities of making representations would have been thwarted and the defendant council would have been dispensed from their statutory obligation of taking into account any representation made to them. The officers were appointed by the defendant council but the council's members were elected by the inhabitants of their area. Parliament by the 1971 Act entrusted the defendant council, acting through their elected members, not their officers, to perform various statutory duties. If their officers were allowed to determine that which Parliament had enacted the defendant council should determine there would be no need for elected members to consider planning applications. This cannot be. Under s 101(1) of the Local Government Act 1972 (which repealed s 4 of the 1971 Act, which re-enacted in an amended form s 64 of the Town and Country Planning Act 1968), a local authority may arrange for the discharge of any of their functions by an officer of the authority. This has to be done formally by the authority acting as such. In this case the defendant council issued standing orders authorising designated officers to perform specified functions including those arising under ss 53 and 94 of the 1971 Act. Their officers had no authority to make any other determinations under the 1971 Act. We can see no reason why Mr de Savary, acting on behalf of the plaintiffs, and having available the advice of lawyers and architects, should have assumed, if he ever did, that Mr Giddens could bind the defendant council generally by anything he wrote or said.

Counsel for the plaintiffs submitted that, notwithstanding the general principle that a statutory body could not be estopped from performing its statutory duties, there are exceptions recognised by this court. This case, he asserted, came within the exceptions.

There seem to be two kinds of exceptions. If a planning authority, acting as such, delegates to its officers powers to determine specific questions, such as applications under ss 53 and 94 of the 1971 Act, any decisions they make cannot be revoked. This kind of estoppel, if it be estoppel at all, is akin to res judicata. Counsel for the Department of the Environment accepted that there was this exception, as did counsel for the defendant council in his final submissions. Lever (Finance) Ltd v Westminster Corpn can, we think, be considered as an application of this exception..... This case, of course, binds us unless there is in the reasoning an element which can be said to be 'per incuriam'. In our judgment it is not an authority for the proposition that every representation made by a planning officer within his ostensible authority binds the planning authority which employs him. For an estoppel to arise there must be some evidence justifying the person dealing with the planning officer for thinking that what the officer said would bind the planning authority. Holding an office, however senior, cannot, in our judgment, be enough by itself. In the Lever (Finance) Ltd case there was evidence of a widespread practice amongst planning authorities of allowing their planning officers to make immaterial modifications to the plans produced when planning permission was given. Lever (Finance) Ltd's architect presumably knew of this practice and was entitled to assume that the practice had been authorised by the planning authorities in whose areas it was followed. The need for some evidence of delegation of authority can be illustrated in this way. Had Lever (Finance) Ltd's architect produced plans showing material and substantial modifications to the planning permission for a large development in Piccadilly Circus already granted, he could not sensibly have assumed that the planning officer with whom he was dealing had authority to approve the proposed modifications without putting them before the planning authority. Whether anyone dealing with a planning officer can safely assume that the officer can bind his authority by anything he says must depend on all the circumstances. In the Lever (Finance) Ltd case Lord Denning MR said: "Any person dealing with them [ie officers of a planning authority] is entitled to assume that all necessary resolutions have been passed". This statement was not necessary for the conclusion he had reached...We consider it to be obiter; with all respect, it stated the law too widely.....

There is another objection to any extension of the concept of estoppel which is illustrated by the facts of the Lever (Finance) Ltd case. If the modifications which were permitted by the planning officer in that case had been properly to be regarded as immaterial, no problem of general principle would arise. But the court regarded itself as competent to decide as to the materiality and, despite the submission to the contrary by the successful plaintiffs, held that the modifications were material. On what basis of evidence or judicial notice the court reached that conclusion, we need not stay to consider. We assume both that the court had jurisdiction to decide that question, and that, on the facts of that case, their decision as to materiality was right. But then comes the difficulty, and the real danger of injustice. To permit the estoppel no doubt avoided an injustice to the plaintiffs. But it also may fairly be regarded as having caused an injustice to one or more members of the public, the owners of adjacent houses who would be adversely affected by this wrong and careless decision of the planning officer that the modifications were not material. Yet they were not, and it would seem could not, be heard. How, in their absence, could the court balance the respective injustices according as the court did or did not hold that there was an estoppel in favour of the plaintiffs? What 'equity' is there in holding, if such be the effect of the decision, that the potential injustice to a third party, as a result of the granting of the estoppel is irrelevant? At least it can be said that the less frequently this situation arises the better for justice....