Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 137
P359/13	OPINION OF LORD GLENNIE in the Petition of THE FIRM OF ARCHID Pursuer; against for judicial review of a purported decision of Dundee City Council issued on 11 May 2010 but dated 1 December 2009 to withdraw retrospectively a grant of planning permission and refuse planning permission Defender: ________________

Pursuer: MacGregor; Morisons LLP

Defender: Armstrong QC; Gillespie MacAndrew LLP

20 August 2013

Introduction

[1] Dundee City Council (the respondents) are the planning authority for Dundee in terms of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act").

[2] In October 2009, the petitioners applied for planning permission to convert an office situated at 48 Thomson Street, Dundee, into a residential building. A decision notice dated 1 December 2009 (the "first notice") was issued to the petitioners notifying them that their application had been granted. They went ahead with the conversion. However, on 11 May 2010, by which time the work was substantially complete, the respondents issued a further decision notice (the "second notice"), also bearing the date 1 December 2009, notifying the petitioners that their application had been refused.

[3] The facts have not yet been established. However, the petitioners say that this volte face caught them by surprise. They had gone ahead with the conversion work on the basis that they had been granted planning permission. If the second notice (which is backdated to 1 December 2009, before work commenced) is allowed to stand, and the first notice is, in effect, torn up, the result would be that they went ahead with the conversion work without having been granted permission to do it. The backdating of the second notice, if allowed to stand, would have the effect of depriving them of their statutory right of review. They will be vulnerable to enforcement proceedings requiring them to undo the work and re-instate the premises, all without any compensation. That, they say, is manifestly unfair. They say that the action of the respondent in ignoring the first notice and issuing the second is unlawful.

[4] In those circumstances the petitioners come to this court seeking (i) reduction of the second notice and (ii) declarator that the first notice "is valid and continues to have full force and effect unless and until it is revoked by the [respondents] in accordance with the provisions of the 1997 Act or otherwise lawfully reduced or set aside".

[5] The matter came before me for a substantive first hearing at which arguments were advanced by both sides with a view to persuading the court that the petition could, at that stage and without evidence, be decided one way or the other. However, it was recognised that the court might not be able to decide the issues without hearing evidence; in which case there would require to be a second (evidential) hearing. In the event, I have come to the conclusion that the matter can be resolved without hearing evidence.

Disputed and undisputed facts
[6] The essential facts are not in dispute. I set out a little more detail below. I also give an indication of areas where there may be a dispute about the facts.

[7] The first notice was on a standard form, with additions relevant to the decision in the particular case. It was issued on 1 December 2009 and bears to give notice of a decision taken on 26 November 2009. It was sent out in the name of the Head of Planning, though it does not appear to have been signed. So far as is material, it reads as follows:

"Notice is hereby given that Dundee City Council has GRANTED planning permission for the above development as described in the application and the plans accompanying the application, subject to the following conditions: ..."

Notwithstanding the reference to "conditions", the space on the form for setting out the conditions was left blank.

[8] The notice then goes on to give the "Reason(s)" for the decision. On the face of the notice it is stated as follows:

"1. The application fails to comply with Policy 4 of the Dundee Local Plan as it fails to provide the required parking, amenity space and internal floor areas for a dwelling in this location. There are no material considerations, including the applicants' supporting statement, that would justify a decision contrary to this."

That reason is repeated in very similar terms on the following page.

[9] It is immediately apparent that the reason given in the notice is a reason which would have supported a decision to refuse the application rather than to grant it. It is the respondents' case that the decision which was taken was in fact a decision to refuse the application, and that the first notice (purporting to grant the application) was sent out as the result of an administrative error. Whether this is so or not will require evidence. However, while it is apparent that there is an inconsistency between the decision notified in the first notice and the reason given for it, it is not obvious from the notice itself where the error lies: i.e. whether the wrong decision has been notified or whether the correct decision has been notified but with the wrong reasons attached to it.

[10] As well as being notified to the applicants in writing, planning decisions are also published on the respondents' website. There is no agreement (and possibly some dispute) as to precisely what was put on the website in relation to this application. In Answer 7 the respondents admit that they made an entry on their website on or about 1 December 2009 to the effect that the application had been granted, although it is said that that entry simply repeated the error and was made without authority. However, they also say in Answer 2 that the Report of Handling, which was approved by their Appointed Officer, Ian Mudie, and which contained the reasons for rejection of the application, was also placed on the website on or about that date "along with a statement that the application had been refused". There is also some dispute about who said what to whom in conversations between the petitioners and the respondents around the time that the first notice was issued. These matters, if relevant, will require evidence before they can be resolved.

[11] One matter relied upon by the petitioners should, perhaps, be noted here. On 13 January 2010 the petitioners applied for a Building Warrant under the Building (Scotland) Act 2003 in respect of the work done and to be done in converting the premises. The proposal identified the works as being:

"Domestic - Alterations to form domestic kitchen, back door & steps up to garden. Alterations to window in frontage to form insulated wall panel"

On 18 March 2010 the respondents wrote to the petitioners confirming that the application had been approved and enclosing the Building Warrant. The petitioners rely upon the fact that the letter was signed by (or in the name of) Ian G S Mudie, the respondents' Head of Planning, under whose name the first notice went out and who, they say, would have been well aware of the earlier decision to grant or refuse planning permission. The importance of this, if any, is merely that it is an adminicle of evidence which might tend to undermine the respondents' case that the application had never been granted and that the notice intimating the grant of planning permission had been sent out by mistake. However, whether it does have this effect and what weight should be attached to it will depend to a large extent upon evidence as to the circumstances in which the letter of 18 March 2010 was sent out and as to the knowledge or awareness of Mr Mudie at that time.

[12] The second notice was sent to the petitioners under cover of an email from Charlie Walker of the respondent dated 11 May 2010 which stated:

"Dear Sir,

Dundee City Council refused planning permission for the change of use of an office to a dwelling at 48 Thomson Street on 26 November 2009.

The Report of Handling of the Appointed Officer explains the reasoning behind this decision but an incorrect decision notice was issued by the Council and I now attach the correct decision notice. I understand that works commenced on site and that a visit was made on Monday 10 May by the Councils Enforcement Officer who asked that all works cease and that the site be reinstated to its original condition.

I can inform you that any works taking place are unauthorised and that the Council will commence enforcement action if they continue and if the site is not restored to its original condition."

The attached notice (the second notice) contained the same Application Reference and Particulars of Development but stated that:

"Notice is hereby given that Dundee City Council has REFUSED planning permission for the above development as described in the application and the plans accompanying the application.

The notice went on to set out the reasons for refusal in precisely the same terms as the reasons given in the first notice. The notice was signed by Ian Mudie as Head of Planning and bore to have been issued on 1 December 2009. The decision date was again given as 26 November 2009.

[13] It is perhaps worthy of note that the formal notice issued by the respondents under cover of the email from Mr Walker did not in terms purport to revoke or withdraw the first notice granting planning permission. It simply ignored it or, to put it another way, treated it as having been issued in error and replaced by the second notice. It is true that the email referred to it as an "incorrect decision notice", and I was led to believe that the respondents' website was altered so as to delete reference to the purported grant of planning permission in the first notice and replace it with a statement that planning permission had been refused. However, there never has been any formal document purporting to revoke or withdraw the first notice. No doubt that was because it was recognised by the respondents that it had no power to revoke or withdraw the grant of planning permission once that had been communicated to the applicant, save under the statutory mechanism to which I shall refer.

[14] The issue of the second notice provoked, as one might expect, a fair amount of correspondence between the petitioners and the respondents. This continued into 2011. During this period, so it is alleged, the petitioners put the property on the market with a view to its sale. They say that they received one or more offers to purchase the property but that the potential purchasers were not prepared to proceed when it was revealed that the records of the respondents' planning department showed that planning permission for the alterations had been refused. The property was withdrawn from the market in about March 2011.

Procedural history
[15] In April 2012 the petitioners (as pursuers) raised an action in the sheriff court at Dundee against the respondents (as defenders) seeking declarator that the respondents had validly issued the first notice confirming the grant of planning permission, declarator that the development of the subjects in compliance with the first notice was lawful, declarator that the second notice was invalid and damages of £8,000.

[16] The respondents (defenders in those proceedings) tabled preliminary pleas as to the jurisdiction of the sheriff court in respect of the craves for declarator, as to the competence of the action and as to relevancy and lack of specification in respect of the claim for damages. They asserted that the action was "fundamentally misconceived in law" and should be dismissed. A diet of debate was fixed for 4 March 2013. That debate never took place. The petitioners took the view that the crave for declarator of invalidity, being in effect a crave for reduction of the second notice, could not competently be brought in the sheriff court. They decided, therefore, to petition the Court of Session for judicial review. The diet of debate in the sheriff court was discharged and the action was sisted to await the outcome of these proceedings. Mr MacGregor, for the petitioners, submitted that there was no difficulty in the claim for damages being heard in the sheriff court if they were successful in having the second notice reduced in this court.

Submissions for the petitioners
[17] The argument for the petitioners was straightforward. It was submitted that, having issued their original decision granting planning permission, the respondents could not thereafter just ignore it and issue a new decision refusing permission. The 1997 Act provided a statutory means by which a planning authority could revoke or modify planning permission which it had granted. That gave protection to the applicant in respect of work already carried out and, further, contained within it a separate review process: see in particular ss. 65, 66 and 76. By ignoring the first notice and issuing the second purportedly in its place, the respondents sought to avoid the limitations on their powers under that process. Further, backdating the second notice would have the effect of rendering unlawful (and subject to enforcement action) all the conversion work to date; and it would deprive the petitioners of their statutory right of review against the refusal of planning permission, since any review had to be taken within three months of the date of the refusal. If it did not wish to use the statutory procedure for revoking or modifying the planning permission granted in the first notice, the respondents could have petitioned the court for an order reducing or setting aside that grant of planning permission. The petitioners would no doubt oppose that petition on a number of grounds, including delay and the expenditure which they had incurred in reliance on it. It would be for the court to decide the issue. But whatever course the respondents took, until that grant of planning permission was either revoked or modified in accordance with the statutory procedure, or reduced by order of the court, it stood; and the respondents had no power while it stood to make a further (contradictory) decision on the matter.

[18] The petitioners' esto case was that even if the respondents had power to revoke or ignore the first notice and to replace it with a refusal of the application (in the second notice), their decision to backdate the second notice to the date of the first was irrational and contrary to natural justice because it retrospectively rendered unlawful the work already done and deprived the petitioners of their statutory rights of review.

[19] Finally, the petitioners argued that the issue of the first notice granting planning permission, coupled with the actions of the respondents in, for example, granting a building warrant give rise to a legitimate expectation that they would be allowed to carry out the conversion work, subject, of course, to the respondent seeking, on payment of appropriate compensation, to invoke the statutory scheme for revocation or modification of that permission.

Submissions for the respondents
[20] In their answers to the petition, the respondents tabled a number of preliminary pleas, namely: mora, taciturnity and acquiescence; abuse of process (because of the continued existence of the sheriff court proceedings); and incompetence (based on the existence of alternative remedies). I shall summarise the submissions on these points once I have outlined the substantive argument in opposition to the petition.

[21] The substantive argument started from the proposition that the person within the planning department who sent out the first notice purporting to grant planning permission had had no authority to do so. His authority extended only to giving notice of decisions taken to grant or refuse planning permission. The decision taken by the planning authority was to refuse permission. In those circumstances he had no authority to give notice that permission had been granted. It followed that the first notice was simply a nullity and could be ignored. In addition, it was a statutory requirement that the grant or refusal of planning permission had to include a statement of the reasons why it had been taken: see s.43A(7) of the 1997 Act. The reasons given in the first notice were not reasons which complied with that section; they supported refusal of the application, not its grant. For that reason, too, the first notice was a nullity. Since the first notice was a nullity, the respondents were free to issue the second notice once the mistake had come to light. They were entitled to date that (second) notice with the date which it would have borne had it been sent out when it should have been sent out, i.e. when the first notice was sent out. It was nothing to the point that, by so doing, all the work which had been carried out in reliance on the purported grant of planning permission in the first notice was retrospectively rendered unlawful; and that the petitioners were deprived of their statutory right of review against the refusal of planning permission contained in that (second) notice. In fact, it was argued, the loss of the statutory right of review did not prejudice the petitioners, since it was open to them to apply under ss.150-152 of the 1997 Act for a certificate of lawful use; and they could in any event require the respondents, as the planning authority, to review the case under s.46A(8) of the Act.

[22] The plea of mora, taciturnity and acquiescence was based on the petitioners' delay in bringing these proceedings for judicial review. The petitioners were obliged to act promptly to reduce the second notice. They delayed for about 35 months after the issue of the second notice before bringing these proceedings. Raising an action in the sheriff court did not answer the complaint about delay. Further, while those proceedings continued in existence, the petitioners could not also bring proceedings in the Court of Session for judicial review. In addition, the availability of the statutory remedies under sections 150-152 and 46(8) of the 1997 Act meant that it was not competent in terms of Rule of Court 58.3(2) to apply for judicial review.

[23] Finally, if the first notice did have legal effect, the respondent sought to have it rectified under s.8(1)(b) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985, to change the word "GRANTED" to "REFUSED".

Discussion
[24] The respondents' plea of mora, taciturnity and acquiescence is directed to the petitioners' delay in raising these proceedings for judicial review and their conduct generally after service of the second notice. Such a plea would normally be considered first. However, on one strand of the petitioners' argument, the onus lay on the respondent to take steps to have the first notice set aside or reduced. The respondents have taken no such steps. Were they to do so, it might be anticipated that a similar plea of delay would be tabled by the petitioners. In these somewhat unusual circumstances, it is appropriate, in my view, so as to give a focus to the discussion and to consider the practicalities of any decision on this point, to resolve the question of who ought to have done what and in relation to which notice before considering the force of the plea of mora, taciturnity and acquiescence tabled by the respondents.

Relevant aspects of the planning system
[25] The basic structure of the planning system under the 1997 Act was not in dispute. For present purposes it is enough to mention just a few matters, in each case summarising the provisions only to the extent that they are relevant to the matters before me. Subject to certain exceptions, planning permission is required for the carrying out of any development of land: s.28(1). The grant of planning permission in general terms is governed by s.29. Section 36(1) contains provisions requiring a planning authority to keep a register inter alia in respect of applications for planning permission and the manner in which such applications have been dealt with. That register has to be available for inspection by the public at all reasonable hours: s.36(4). That is important, since an interested member of the public might reasonably be expected only to look once to find out how any particular application had been dealt with. Section 37(1) provides that a planning authority may grant or refuse an application for planning permission and, if they grant it, may do so either unconditionally or subject to such conditions as they think fit. Section 37(4) is of some importance in this case. It provides that the date of the grant or refusal of planning permission "shall be the date on which the notice of the planning authority's decision bears to have been signed on behalf of the authority". That date is important because of the right of review to which I refer below. Section 43A deals with schemes of delegation. For present purposes it is sufficient to note sub-section (6), which allows the planning authority itself to determine an application which would otherwise fall to be determined by a person to whom the decision was delegated; sub-section (7), which requires any decision to include a statement of the reasons for it and for a copy of the decision to be served on the applicant; and sub-section (8), which provides that, where an appointed person refuses an application for planning permission, the applicant may require the planning authority to review the case. Under Regulation 9(2) of the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008/ 433 (Scottish SI), a notice seeking review under that sub-section must be served on the local review body within a period of three months beginning with the date of the notice of the decision to which the review relates. In other words, the three months allowed for seeking review runs from the date on the decision notice.

[26] Section 65 of the Act gives the planning authority power to revoke or modify a grant of planning permission. Section 65(3) states that that power may be exercised at any time before the building operations to which the permission relates have been completed or the change of use to which the permission relates has taken place. However, section 65(4) provides that "the revocation or modification of permission for the carrying out of building or other operations shall not affect so much of those operations as has previously been carried out." This is an important qualification on the statutory right of revocation or modification. If that statutory procedure was followed in the present case, the petitioners would be safeguarded in respect of work already carried out. Section 66(3) allows a person on whom a notice in relation to such a proposed order is served an opportunity of appearing in opposition to it. Section 76 deals with compensation. It provides in section 76(1) that where planning permission is revoked or modified in accordance with these provisions, if it is shown that a person interested in the land has incurred expenditure in carrying out work rendered abortive by the revocation or modification of permission, or has otherwise sustained loss or damage directly attributable thereto, then the planning authority shall pay compensation in respect of that expenditure, loss or damage. Had the respondents gone down this route, they would have been liable to pay compensation to the petitioners.

The effect of the first notice - and was the respondent entitled to issue the second notice?
[27] It was not in dispute that the grant or refusal of planning permission had to be in writing. The grant or refusal is not made when the planning authority makes its decision. It does not exist in the ether. It is only made when the responsible officer within the planning authority gives notice in writing to the applicant granting or refusing permission. That is clear from the fact that in terms of s.43A(7) the decision must include a statement of the reasons for it and a copy of the decision has to be served on the applicant. It is also clear as a matter of common sense. Subject to the statutory process for revocation or modification of planning permission, a planning authority can only decide an application once. The contrary was not suggested. If the decision was "made" at a time when the application was considered orally but the decision had not been transmitted, there would be scope for endless argument as to when the decision was made and whether what was notified was in fact the first decision rather than a second or subsequent one. The requirement for written notice to the applicant granting or refusing permission avoids any such problem. Further, since the grant of permission runs with the land, it is important to know whether and when permission has been granted. This requires the decision itself to be in writing. That written decision is then recorded on the register and is available for all to see. This approach is consistent with the authorities. In Slough Estates Ltd v Slough Borough Council [1969] 2 Ch 305, in which it was held that the grant of planning permission could not be construed by reference to the application or other documents, Lord Denning MR said this at p.315B-C:

"The grant of planning permission has to be in writing... And it runs with the land. The grant is not made when the county council resolve to give permission. It is only made when their clerk, on their authority, issues the permission to the applicant."

I shall come back to consider the words "on their authority" in due course. Salmon LJ at p.320A-B also accepted that the grant of planning permission had to be in writing, and he too took the permission issued to the applicant to be that grant. The decision of the Court of Appeal was upheld, albeit on somewhat different grounds, by the House of Lords, reported at [1971] AC 958. They held that since the purported planning permission in that case was not a complete and self-contained document, but incorporated by reference "the plan submitted", and also contained a reference to the application, it was right in the circumstances to examine the correspondence leading up to the grant of planning permission with a view to ascertaining what the application was (see per Lord Pearson, who gave the main speech, at pp.967-8). Lord Reid, at p.962, in a short speech of his own, was clear that extrinsic evidence should not generally be allowed as an aid to construction. His reasoning appears from the following passage, when discussing the rule that a court, in construing a will or contract, must put itself in the shoes of the testator or the parties by admitting in evidence all relevant facts known by them at the time:

"How far can it [i.e. the rule] apply to a written grant of planning permission? This is available to purchasers from the person who originally obtained the permission. They may have no means of discovering what facts were known to the planning authority. It is true that the person who originally obtained the permission would be likely to know. But the question may arise after many years, and it could hardly be that the permission could mean one thing in the hands of the original owner and something different in the hands of a purchaser from him.

...

Of course, extrinsic evidence may be required to identify a thing or place referred to, but that is a very different thing from using evidence of facts which were known to the maker of the document but which are not common knowledge to alter or qualify the apparent meaning of words or phrases used in such a document. Members of the public, entitled to rely on a public document, surely ought not to be subject to the risk of its apparent meaning being altered by the introduction of such evidence."

The other members of the court agreed with Lord Pearson and Lord Reid.

[28] This approach, that the permission is contained in the document giving notice of the grant, which must generally be construed without reference to other documentation, was followed by the Divisional Court in R v Yeovil Borough Council, ex parte Trustees of Elim Pentecostal Church, Yeovil (1971) 33 P&CR 29, 42-43 and by Woolf J in R v West Oxfordshire DC, ex parte Pearce Homes Ltd [1986] JPL 523, 524-5.

[29] On this basis, subject to the question of authority (to which I shall return), the first notice - the notice issued on 1 December 2009 - constitutes the grant of planning permission to the petitioners. That is the effect of the operative part of the first notice, whatever the accompanying reasons may say.

[30] What is the effect of this in law? What if the notice purporting to grant planning permission is ultra vires the planning authority, is the product of some procedural failure, is tainted by bad faith or is simply Wednesbury unreasonable? What if, as the respondents allege here, the first notice was issued by mistake and did not reflect the decision reached by the planning authority to refuse the application?

[31] The petitioners' answer to this is straightforward. The first notice is to be treated as a valid grant of planning permission unless and until it is reduced or otherwise declared to be ineffective by the court. They rely upon the presumption of regularity, sometimes expressed in the maxim omnia praesumuntur rite esse acta: see Trayner, Latin Maxims and Phrases ("all things are presumed to have been done duly and in the usual manner"). In my opinion, that presumption is relevant here. As is made clear in Trayner, the presumption applies to "generally, all official acts". It has this consequence, that the instrument is presumed to have been validly made and to have legal effect unless and until it is reduced following on a court process. And that applies, in general, whatever the nature of the instrument or official act and whatever the nature of the alleged irregularity. Trayner illustrates the presumption by an example taken from the old procedure of giving sasine. It is now, of course, permissible for a party to legal proceedings involving his private rights to mount a collateral challenge to the validity of some regulation, act or instrument relevant to the issues in those proceedings; but that is simply a sensible procedural expedient to avoid the need for the defender to have to start separate proceedings for judicial review. It does not affect the general principle.

[32] A classic exposition of that presumption, though not put in those terms, is to be found in the speech of Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736. Land belonging to the appellant was made the subject of a compulsory purchase order. The relevant legislation allowed a person aggrieved by a compulsory purchase order to question its validity by applying to the High Court within six weeks from the date the order was published; and went on to provide, by paragraph 16 of the relevant Schedule, that a compulsory purchase order "shall not [otherwise] ... be questioned in any legal proceedings whatsoever ...". The appellant brought an action, outwith the six week period laid down in the legislation, seeking inter alia a declaration that the compulsory purchase order was made and confirmed wrongfully and in bad faith. It was held by the House of Lords that this part of her action could not proceed because of the prohibition in the legislation against questioning the validity of the order outwith that six week period. Reliance on the presumption of regularity can be found in the speech of Lord Radcliffe at p.769. Addressing an argument that the prohibition in paragraph 16 could not apply to a compulsory purchase order which was a nullity, Lord Radcliffe said this:

"At one time the argument was shaped into the form of saying that an order made in bad faith was in law a nullity and that, consequently, all references to compulsory purchase orders in paragraphs 15 and 16 must be treated as references to such orders only as had been made in good faith. But this argument is in reality a play on the word nullity. An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. ..."

Lord Radcliffe analysed the position on the basis that, if the allegations of bad faith were made good, the order would be a nullity. Even on that basis, he said, it will remain "as effective for its ostensible purpose as the most impeccable of orders" unless and until the necessary proceedings are taken at law to get it quashed (i.e. reduced) or otherwise upset. Recent applications of the presumption can be found in the speech of Lord Brown of Eaton-under-Heywood in Standard Commercial Property Securities Ltd v Glasgow City Council 2007 SC (HL) 33 at paragraph [74], and in the decision of Kerr J, as he then was, in Re an application by Ronald Foster for Judicial Review [2004] NIQB 1 at paragraphs 63-64.

[33] The effect of the presumption of regularity applied to a case such as this is that an official document issued by a public authority is presumed, unless the contrary is shown, to have been issued properly and to reflect accurately the decision made by the relevant authority pursuant to which it was issued. This makes obvious good sense. There has to be a starting point for any consideration of the status of such a document. An interested member of the public should be able to rely upon a notice issued by a public authority as having been issued correctly and with the appropriate authority; that is all the more pertinent in the case of a document granting planning permission, since the grant of planning permission runs with the land, and may be relied on by persons who were not party to the original application or privy to any correspondence or telephone communications passing between the applicant and the authority. Further, the authority should be entitled to seek to enforce any regulation or direction contained in the document without having to prove in each case that the document was issued correctly and with the appropriate authority. But the presumption is rebuttable. It is always open to the authority, or to a recipient of the notice or a member of the public, to challenge the regularity of the particular document.

[34] It follows that, unless and until the contrary is established in court proceedings, the first notice is presumed to have been correctly issued and to have been issued with the appropriate authority. In other words, subject to proof to the contrary, it is presumed in this case that the first notice properly records and communicates a decision taken by the planning authority to grant planning permission.

[35] The respondents sought to counter this approach by saying this: that may be all well and good in the ordinary case of a decision which is flawed and potentially open to challenge on standard judicial review grounds, such as illegality, bad faith, excess of jurisdiction or Wednesbury unreasonableness; but it has no application in a case such as this, where the notice was issued wholly without authority and is therefore a nullity. It has no legal effect, since it is not a notice issued by the planning authority at all. In such a case, the planning authority need not take proceedings for reduction of the first notice before it issues a second - it can simply ignore it.

[36] In support of the argument that the notice was issued without authority and therefore was a fundamental nullity not amounting to planning permission at all and could be ignored, Mr Armstrong QC, for the respondents, referred to four cases in particular, namely: Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222; Norfolk County Council v Secretary of State for the Environment [1973] 1 WLR 1400; Cooperative Retail Services Ltd v Taff-Ely BC [1979] 39 P&CR 223 (CA) and [1981] 42 P&CR 1 (HL); and R v West Oxfordshire DC (supra).

[37] In Norfolk County Council v Secretary of State for the Environment, the planning committee of the planning authority resolved to refuse an application by the applicants for planning permission to extend their factory. The planning officer, whose duty it was to notify applicants of the authority's decision on their application, by mistake signed and sent to the applicants a notice granting permission. Two days later the planning authority realised the mistake, and notified the applicants who were able to cancel without penalty an order for machinery which they had placed on the strength of their application having been granted. But on the basis that planning permission had been granted, the applicants started work on the extension. They were served with an enforcement notice requiring them to discontinue the work. The applicants appealed to the Secretary of State who decided, after inquiry, that planning permission had been granted. He quashed the enforcement notice. The planning authority appealed to the court. The Divisional Court allowed the appeal, holding that the planning officer only had authority to notify the result of a decision actually taken by the planning authority. Since the planning authority had decided to refuse permission, the planning officer had had no authority to issue a notice granting it; and it was open to the planning authority to prove this point by reference to the actual resolution of the meeting of the planning committee. Before turning to the passages in the judgement of Lord Widgery CJ which touch on the question of authority, I should note that this was an appeal against a decision by the Secretary of State confirming the validity of the initial grant of planning permission, and was therefore a case brought before the court for the very purpose of obtaining a ruling that the purported grant of planning permission was invalid and ineffective. Although procedurally very different, in substance it was a process which the respondents in this case could have embarked upon by commencing proceedings for judicial review, seeking reduction of the first notice.

[38] In coming to its decision, the court was satisfied on the facts that a mistake had happened in the manner set out above. The planning officer should not have sent out a notice granting permission, since the planning committee had resolved to refuse it. In these circumstances, the court first rejected an argument, based on the decision in Slough Estates (supra), to the effect that it was not permissible to look beyond the notice itself in order to construe or explain the terms of it. Lord Widgery CJ, with whom the other two members of the court agreed, dealt with this point succinctly; where permission of some kind had been granted, the extent and effect of that permission must be gauged from the face of the document; but where no planning permission was ever granted, the principle in Slough Estates did not apply so as to prevent the planning authority showing, if they could, that that which purported to be a permission was in fact no permission at all. That, if I may respectfully say so, is obviously right in proceedings which have as their aim of the setting aside, by whatever process, the purported grant of permission.

[39] Lord Widgery CJ went on to consider the question of authority. He made the point (at p.1404E-F) that all that the planning officer was authorised to do was to notify the result of the decision made by the planning committee. He then said this:

"Accordingly, the body which had power to make a decision, namely the local planning authority, decided in the contrary sense, and against the grant of permission, and the officer who produced a document in the form of a planning permission had no authority himself to make such a decision. His ostensible authority, as far as I can see, only went to his authority to transmit the decision which had been made, so I have no hesitation in saying that here there never was planning permission, and that is open to the local planning authority to show that by reference, amongst other things, to the actual resolution upon which the permission is said to have been based, and by reference to the authority or lack of authority which that particular officer had in the matter.

That being the case, I am unable to accept Mr McMullan's first submission, which simply is that this was a planning permission, or must be treated as such; it was not a planning permission, and it is proper for its inadequacy in that respect to be investigated."

He went on to deal with the argument advanced on behalf of the applicants that even if it was not the grant of planning permission, it contained a representation of fact giving rise to an estoppel. After quoting a passage from the judgment of Lord Denning MR in Lever Finance Limited to the effect that a public authority may be bound by a representation made by an officer acting within the scope of his ostensible authority if the other person has acted on it, Lord Widgery CJ said this:

"As I understand it, the mere fact that my agent has made a representation within his ostensible authority upon which you act is not enough to stop me from denying his actual authority unless you have acted to your detriment."

That comment was made in the context of an argument about estoppel, with which I am not concerned in this case. The estoppel argument failed because the applicant had not acted to its detriment on the basis of the representation (their actions in commencing work had been designed only to trigger a resolution of the issue). It does seem, however, that in this passage Lord Widgery CJ was recognising that a statement by the relevant planning officer, even if not actually authorised, might yet be within his ostensible authority, and therefore might bind the authority if there had been reliance on it by another party to its detriment. Mr Armstrong relies upon the first of the two passages I have quoted, and points to the fact that Lord Widgery says not only that the planning officer had no actual authority but also that he had no ostensible authority. I do not think that that can be what Lord Widgery intended in that earlier passage, since the language there is consistent with a discussion of actual authority rather than ostensible authority, and the latter passage appears to recognise the possibility of the planning authority being bound by a statement made outwith the actual authority of the planning officer but within his ostensible authority. After all, in Lever Finance v Westminster LBC, to which Lord Widgery referred in his judgment, Lord Denning MR held that a planning officer had ostensible authority to tell a successful applicant whether or not a variation from the planning permission granted was material (see pp.230-1). He noted that an applicant cannot know whether the planning officer has had actual authority to make the decision delegated to him; any person dealing with him is entitled to assume that all necessary resolutions (to give him such authority) have been passed.

[40] It is not necessary, for present purposes, to set out in any detail the complicated facts giving rise to the decision in Cooperative Retail Services Ltd v Taff-Ely BC. That was an action in which the plaintiffs claimed inter alia declarations (a) that the relevant planning authority, the first defendants, did not resolve to grant planning permission in respect of an application by another and (b) that the notice given on 4 November 1976 purporting to grant planning permission for that development was of no effect. On the facts as found by the court, the notice had been issued by the relevant officer without authority, since there had been no resolution to grant it. It was held that the purported planning permission was a nullity. Declarations were granted in the terms sought. This too was an action brought against the planning authority for the purpose of having the purported planning permission set aside or declared to be of no effect. Full judgments were given by all three members of the Court of Appeal.

[41] In the course of his judgment, Lord Denning MR considered an argument that, despite its invalidity, the printed grant of permission signed by the clerk was good in the hands of any bone fide holder of it. Reliance had been placed upon what he had said in Slough Estates and upon what Lord Reid had said in the House of Lords in that same case. He rejected that argument. He said this (at p.238):

"Those words are truly applicable to a grant of planning permission that has been authorised by the planning authority, but they have no application to a grant that has never been authorised and is issued by the clerk of his own head. It is then no better than a grant that is issued by a mistake - issuing a grant instead of a refusal, as in Norfolk County Council v Secretary of State for the Environment - or when the signature of the clerk has been forged, or written by a subordinate without any authority whatever. It is true that, until the reason for its invalidity is discovered - and pronounced on by the courts - people may in good faith have acted on it. The courts may in their discretion allow these actions to stand as between innocent third persons, but that does not serve to validate the invalidity, or to resurrect the nullity ..."

In a concluding section of his judgment, he referred to an important principle of planning law:

"It is that a grant of planning permission is made in the public interest - so as to ensure that the amenities of our countryside are preserved for the good of all. The protection of the public interest is entrusted to the representative bodies and to the ministers. It would be quite wrong that it should be pre-empted by a mistaken issue by a clerk of a printed form - without any authority in that behalf. When such a mistake is brought to the attention of the court ... the court can and should declare the grant to be void and of no effect. It does not follow that all the consequences that follow from it are void also ..."

[42] Ormrod LJ too rejected an argument that because the planning permission was a public document and ran with the land, chaos would result if purchasers and their solicitors had to investigate the validity of every consent and inquire into how it came to be issued. Such an argument, if correct, would apply to a permission issued fraudulently. He went on (at p.241):

"It would mean that a permission was more sacrosanct than an order of the court, which is always liable to be set aside for want of jurisdiction. Documents of status are no less public documents than documents of title, and no less important, yet they are liable to be set aside. In my judgment, this argument should be rejected, together with any suggested restriction on the part of the court to investigate and get at the true facts of a case such as this."

It is to be noted that in that passage Ormrod LJ talked about judgments and documents of this type being "liable to be set aside". Clearly a judgment, even one made without jurisdiction, cannot simply be ignored - it requires to be set aside. So too, one might think, planning permission granted without authority. Ormrod LJ also considered an argument that the clerk had ostensible authority to issue the document. He considered that such an argument that no relevance to proceedings against the council for a declaration that the permission was of no effect. He said this (at p.243):

"However relevant that submission may be in proceedings between Tesco Ltd [the party who ultimately would have benefited by the permission] and the district council, as to which it is unnecessary and improper to express any opinion, it cannot have any relevance in these proceedings. Ostensible authority is merely one variety of estoppel and is part of the law of agency. It may inhibit the principal in various ways, or make him liable for his agents' acts; it cannot validate as against the public or other persons whose interests are adversely affected a planning permission that is void ..."

Having found that the letter of 4 November 1976 purporting to grant planning permission was sent without authority, Ormrod LJ turned to the question of whether the court should exercise its jurisdiction to grant the declarations claimed by the plaintiffs. He said this (at p.246):

"The jurisdiction to pronounce declaratory judgments is discretionary, and in a proper case the court can, in its discretion, decline to grant the relief claimed, just as it can and will refuse to grant an injunction when it would be inequitable to do so. An order of a competent court that is valid on its face must be treated as valid until it is declared to be void by an order of a competent court: per Diplock J in O'Connor v Isaacs. Except in those cases where an applicant is entitled ex debito justitiae ... or the order is declared void by statute ..., the court is not obliged to declare such an order void if it would be unjust to do so. So, in the case of a permission for development, if it is valid on its face it can and must be acted on until it is declared to be void by a competent court. Such orders can be said to be voidable, but the option to avoid lies with the court, not with the parties."

This is an important passage in the judgment. It makes it clear, in the context of a document written without authority purporting to grant planning permission, that such a document, if valid on its face, is to be treated as valid unless and until declared to be void or otherwise set aside by the court. This point is reinforced by the consideration that the court will not grant such a declaration where it would be unjust to do so, and that the option to avoid lies with the court, not with the parties. There is good reason for that. First, the document is a public document and, if valid, confers rights running with the land. It is also necessary, in the interests of certainty, that people know whether or not they can rely on it. This cannot be left to the party issuing the document or to the party challenging it, since the validity of the document and the circumstances in which it was issued may often be a matter of dispute. The question of validity must be determined by the court.

[43] Browne LJ came to the same conclusion. The letter of 4 November 1976, having been sent without authority, had "no effect whatever as a grant of permission". I need not set out any parts of his judgment.

[44] The matter was dealt with very briefly in the House of Lords. Lord Wilberforce, with whose speech all the other members of the court agreed, was content (at p.4) to approve all of what was said in the Court of Appeal: "They deal with every point and every argument in a manner which to me is fully satisfying".

[45] I have already mentioned the case of R v West Oxfordshire DC, ex parte Pearce Homes Ltd as approving the proposition that, in the ordinary way, in deciding what type of planning permission has been granted, it is only necessary to look at the actual notification of the decision. At p.525, however, Woolf J, who had been counsel in the House of Lords in Cooperative Retail Services Ltd v Taff-Ely BC, added this, in relation to the possibility of planning permission having been issued without authority:

"However there could be situations where it was necessary to look at the resolution, where issues of a different sort from those in this case arose, for example whether or not the officer of the council had authority to give the notification of the grant of planning permission which he did. This was the issue which the House of Lords and Court of Appeal considered it was not necessary to resolve in Cooperative Retail Services Ltd v Taff-Ely BC ..."

[46] These cases, particularly Norfolk County Council v Secretary of State for the Environment and Cooperative Retail Services Ltd v Taff-Ely BC, establish clearly that a purported grant of planning permission by an officer who did not have authority to issue the notice granting it is of no legal effect or, as it is sometimes put, a nullity. To that extent, I accept Mr Armstrong's submission. However, it does not seem to me that this is relevant to the issue before me in these proceedings. The question in those cases was as to the validity of the purported grant of permission, and as to whether declaratory relief should be granted. In such proceedings, the authority issue arises directly for decision; it has to be investigated and, if it is found that planning permission was purportedly granted without authority, then it is likely that the permission will be struck down or declared invalid. So also, if in the present case the respondents had commenced proceedings for judicial review, praying for reduction of the first notice as having been issued without authority, then the question of authority would have had to be investigated; and if the court had concluded, on the evidence, that the first notice was issued without authority, the court might well have reduced (or set aside) that notice. I say "might well have" reduced that notice, because it is important to recognise that the court is not bound to do so, and whether it will do so or not will depend on a number of factors, including whether, and if so to what extent, the applicants or any other party have acted to their detriment on the basis that planning permission had been granted, and had done so in ignorance of the alleged mistake. Were the respondents to seek to reduce the grant of planning permission in the first notice, then on the averments in the Petition and Answers, though no evidence has been led before me on such matters, one can see that there may well be relevant issues to be determined as to the nature of the alleged mistake and the state of knowledge of the petitioners when they carried out the conversion work, which may involve a consideration of the communications between the petitioners and the respondents' planning department at about the time the first notice was issued.

[47] However, the respondents have not sought reduction of the first notice, either before issuing the second notice or even now. The position is therefore very different from that which obtained in Norfolk County Council v Secretary of State for the Environment and Cooperative Retail Services Ltd v Taff-Ely BC. The question before the court in the present proceedings focuses on the validity of the second notice. The answer to that question does not depend directly on whether the first notice was issued without authority and therefore might be reduced if the respondent were to commence proceedings for that purpose. It depends instead on the answer to a very different question, namely what was the status of the first notice as at 11 May 2010, when the second notice was issued - because it is accepted that, subject to the statutory power to revoke or modify any permission granted by them, the respondents, as planning authority, are functus in respect of the planning application made by the petitioners once they have made a decision on it.

[48] I take the law to be settled, that a decision issued by a planning authority, however bad it may be for any number of reasons, is to be treated as valid unless and until reduced or otherwise declared invalid by order of a competent court. To that extent, as Ormrod LJ pointed out in Cooperative Retail Services Ltd v Taff-Ely BC, such a decision may be equated with a court order. However bad or irregular that order might be, even if it was made without jurisdiction, it stands until set aside. That court cannot correct it because, having made the order, it is functus. Nor can it ignore it and make another order, because then there would be two inconsistent orders in respect of the one matter. The reason is grounded in common sense. Unless and until the matter is brought before a court, the question of whether the planning consent is a nullity, for example for want of authority of the officer issuing the notice, depends upon mere assertion by one party or the other. The respondents' assertion that the grant of permission was issued without authority might be disputed by the applicant. It's power to issue a new decision, ignoring the first, would depend on that dispute being resolved in its favour. How is a purchaser of the land who may wish to take advantage of the planning permission to know whose version of events to believe? Indeed, how is he to know that there is an issue which might invalidate the permission on which he has relied? This is a point made in a number of the cases, though usually (but not exclusively) in the context of construing the planning permission itself: see e.g. per Lord Reid in Slough Estates Ltd v Slough Borough Council and see also Lever Finance Ltd v Westminster (City) London Borough Council at p.231. The mistake here, if it was a mistake, was apparently discovered over four months after the first notice, and the respondents assert that they are free to treat it as a nullity and issue another. But what if the land had been sold in the meantime on the strength of it having this permission? On the respondents' argument, this makes no difference - if the permission is a nullity it is a nullity and can simply be ignored. On this basis, it would, presumably, have been open to it to treat the first notice granting permission as a nullity at any time after they discovered the error, even if they did not tell anyone about it for months or even years after discovering the error, regardless of any reliance by the petitioners or others on that permission. Or they might only have discovered it after some years; and still they would say that they need not apply to the court, they could simply treat it as a nullity and replace it with a refusal. On their case, detrimental reliance by another would be irrelevant, since there would have been nothing on which that other could properly rely: a nullity is a nullity is a nullity.

[49] That cannot be right. There is a public interest in knowing the position. The applicant and/or others may have relied on it. The system, whereby the grant or refusal of permission is recorded on a register (or web site) which is open to inspection by the public, is designed for just this purpose. The prejudice, if any, to them has to be taken into account is determining whether the grant of permission should be set aside. There will be circumstances in which the grant of permission, even if unauthorised or a nullity for some reason, will not be reduced, whether because of detrimental reliance by the applicant or a third party, or because of other factors, including delay. That is why, as Ormrod LJ put it in Cooperative Retail Services Ltd v Taff-Ely BC, in the passage cited above: "the option to avoid lies with the court, not with the parties". Lord Denning MR in the same case appeared to assume that the question of invalidity would have to be pronounced on by the courts (p.238) and that it would be for the court to declare the grant to be void and of no effect (p.239). And in Norfolk County Council v Secretary of State for the Environment Lord Widgery CJ (at p.1404) emphasised that it was for the authority to show that the purported planning permission was no permission at all.

[50] Mr Armstrong argued, as I understood it, that the absence of authority to issue the first notice made it fundamentally invalid, a complete nullity. So it may, and that may be established in proceedings for reduction. But it does not, in my opinion, mean that it can be disregarded. The lack of authority alleged in this case is no different in principle from an alleged lack of capacity, when a planning authority or other public body is alleged to have acted in excess of its statutory powers. In all such cases the same principle applies. Unless and until the decision is reduced or set aside or otherwise declared invalid, it stands.

[51] By seeking to differentiate between, on the one hand, a decision capable of reduction on classic judicial review grounds and, on the other, one which was a "complete nullity" and could therefore safely be ignored, Mr Armstrong's argument seemed to me to resurrect the old distinction between void and voidable which plagued this area of law for so long. But as Lord Keith said in London & Clydeside Estates Ltd. v Aberdeen District Council 1980 SC (HL) 1 (at pp.43-4), the use of those expressions (and ex hypothesi those concepts) is to be avoided in the field of judicial review of administrative actions:

"In this context use of the expressions "void" and "voidable," which have a recognised significance and importance in certain fields of the law of contract, is to be avoided as inappropriate and apt to confuse. A decision or other act of a more or less formal character may be invalid and subject to being so declared in court of law, and yet have some legal effect or existence prior to such declaration. In particular, it may be capable of being submitted to an appeal (cf. Calvin v. Carr [1979] 2 All ER 440 per Lord Wilberforce at p. 445). In my opinion the certificate issued in the present case was of that character. It had some legal effect unless and until reduced, and in particular it might, in my view, have been the proper subject of a timeous appeal to the Secretary of State."

That case concerned compulsory purchase and involved a certificate which was defective because it omitted to include a statement, required by statute, giving notice of rights of appeal. Others of their Lordships did not go as far as to say that the distinction between void and voidable should no longer be used - though Lord Hailsham LC considered that use of these terms was potentially misleading (see p.30) - but each of them emphasised that, despite its invalidity, the certificate was effective until it was struck down by a competent authority. Lord Hailsham LC said (at pp.27-28):

"If the requirement that the subject should be informed of his legal rights was mandatory, what follows? The respondents attempted, as I thought, at one time, to argue that it thereupon became a nullity, and that therefore a decree of reduction was inappropriate because there was nothing upon which it could operate. But I do not accept this argument. The certificate was effective until it was struck down by a competent authority ..."

Lord Fraser said the same thing at (p.35):

"... I have no doubt that the effect of the omission in this case was to make the certificate invalid in the sense that it cannot stand, if challenged by the appellants. It is not a complete nullity-for example it could have been appealed against by an appeal taken timeously-and it exists until it is reduced, or set aside in some way."

More recent authority in the House of Lords has confirmed that the distinction between void and voidable is no longer of assistance in the field of judicial review: see, for example, per Lord Irvine of Lairg LC in Boddington v British Transport Police [1999] 2 AC 143 where, albeit in a different context, he said this (at p.154):

"But in 1969, the decision of your Lordships House in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147 made obsolete the historic distinction between errors of law on the face of the record and other errors of law. It did so by extending the doctrine of ultra vires, so that any misdirection in law would render the relevant decision ultra vires and a nullity: see Reg. v. Hull University Visitor, Ex parte Page [1993] AC 682, 701-702, per Lord Browne-Wilkinson (with whom Lord Keith of Kinkel and Lord Griffiths agreed, at p. 692), citing the speech of Lord Diplock in O'Reilly v. Mackman [1983] 2 AC 237, 278. Thus, today, the old distinction between void and voidable acts on which Lord Denning relied in Director of Public Prosecutions v. Head no longer applies. This much is clear from the Anisminic case [1969] 2 AC 147 and these later authorities.

[52] This approach, that a decision continues to have effect unless and until set aside or declared to be of no legal effect, is entirely consistent with that taken in the unreported decision in R (Timothy Carroll) v South Somerset District Council [2008] EWHC 104. That case concerned a proposed residential development on a Greenfield Site. The application for planning permission was considered by the relevant committee of the Council, which was the planning authority. The committee resolved that planning permission should be granted subject inter alia to it being referred to the Secretary of State under provisions of the Greenfield Directive; and, if no objections were raised by the Secretary of State, that the application be delegated to the Head of Development and Building Control to grant permission, subject to the applicant entering into a section 106 agreement to cover certain matters. The matter was referred to the Secretary of State who indicated that she did not require that the matter be called in. It was then that the mistake occurred. The officer of the Council who was concerned had been on holiday at the material time. On her return she discovered that the Secretary of State had not called the matter in. Accordingly, she notified the Head of Development and Building Control, Mr Gale, who was responsible for issuing the planning permission, that it could be issued. However, she had overlooked the requirement for the section 106 agreement and the fact that nothing had been done to follow that up. Mr Gale was himself not aware of the problem. On 21 November 2006 he proceeded to issue the necessary permission, unqualified by any requirement for a section 106 agreement. Accordingly, the applicants obtained a planning permission which was in its terms absolute; it contained a number of other conditions but it did not contain any requirement for the section 106 agreement. On those facts, therefore, the position was similar to that alleged by the respondents in the present case - Mr Gale had, without authority from the committee charged to make the decision on the application, issued a notice purporting to grant planning permission. The three month period for bringing proceedings for judicial review expired at the end of February 2007. At the end of March the council wrote to say that a "fundamental mistake" had been made "affecting the legal validity of the decision notice. Shortly afterwards the council suggested that the sensible course was for the applicant to accept that the purported planning permission was to no effect, that the court should be asked (of consent, in proceedings brought just for that purpose) to grant a declaration to that effect. Correspondence followed, the effect of which was that the applicant insisted that it had been granted permission and that that permission was valid.

[53] Collins J rejected certain preliminary points and noted that the effect of his decision on those points was that, if the claim were to succeed, the formal grant of planning permission would be quashed and the matter would go back to the officer to deal with it in accordance with the resolution of the Committee. He then turned to the real point in the case, which he introduced in this way (at para.20):

"Therefore one has to turn to the second main argument raised by Mr Wadsley [counsel for the then owners of the land, effectively in the position of the applicant], which is that the officer, albeit by mistake, had the power to do what was done and, since the question of whether a planning permission was valid has to be considered objectively and, of course, once it goes on record, as it were, it is permission which runs with the land and must therefore be able to be relied upon by anyone who has an interest in that land without the need to have to go to look at the source materials, if I can put it that way -- that is to say committee reports, et cetera -- to see whether there may be anything amiss with it. As a general proposition, of course, that is correct. But equally it is, as the law has recognised, always possible for a court to be asked to intervene and to quash a decision if it is apparent that that decision was one which was made without proper authority and therefore it was not within the powers of the decision maker to make it. ..."

I quote this part for three reasons: first, because it identifies the issue as being whether the officer had power (or authority) to send out the mistaken letter (in other words the same underlying issue as in the present case); second, because it emphasises the point which I made earlier in this Opinion, namely that planning permission runs with the land, and the written grant of permission must therefore, in general, be able to be relied upon by anyone who has an interest in that land without the need to have to go to look at the source materials; and, third, because of the recognition that the appropriate course, where it is apparent that the decision was made without proper authority, is to ask the court to intervene and quash the decision. There is no suggestion in that passage that the decision which had been issued without authority could simply be ignored.

[54] The same point is made in paragraph 28 where the judge, having concluded that the permission was given without authority, for the reasons explained earlier, is considering the question of prejudice to the applicants if the grant of planning permission were to be quashed. He says this:

"Furthermore it is difficult to see that there is any prejudice. True it is that more money might have been forthcoming if they had won the case. Nonetheless, the reality is that they were the recipients of an unlawful planning permission and therefore they had nothing on which they could properly rely. I accept that the permission is valid until set aside but the reality is, as I say, that once the relevant proceedings were taken it would inevitably have been decided that it was an unlawful permission and thus liable to be set aside.

Of course, it will be a matter for consideration of the circumstances in each case whether a decision taken without authority will necessarily be set aside. But the importance of this passage is that it underlines, yet again, the basic proposition that permission, even if granted without authority, is valid until set aside or otherwise declared to be invalid. While the need for the unauthorised permission to be set aside was not in issue in that case (it being, it seems common ground that that was necessary), the approach taken by the parties and the court in that case is consistent with the view I take as to the need for some such court order. If the unauthorised grant of permission could simply have been ignored, there would have been no need for the proceedings.

[55] In summary, therefore, I conclude that the grant of planning permission in the first notice is, or is to be regarded as, valid unless and until it is reduced by order of the court or otherwise declared by the court to be invalid. (What the effect of reduction might be, if it is subsequently reduced, is a difficult question upon which I need not express a view: see eg Boddington v British Transport Police, particularly per Lord Browne-Wilkinson and Lord Steyn.) It was not contended that the respondents had power to make a second decision on the application if the first notice stood. There has been no attempt to have the first notice reduced. In those circumstances, it must follow that the second notice, being in effect a second decision on the one application, is ultra vires and must be reduced. This, of course, leaves it open to the respondents to take such steps as are open to them in respect of that first notice, whether by way of petitioning the court for reduction or by seeking to exercise their statutory powers to revoke or modify that permission (subject to the safeguards contained within those provisions).

[56] I should add that the same analysis would apply if the respondents were correct in their argument that the first notice was defective for the other reason advanced by it, namely because it did not include a statement of the reasons for the decision contrary to s.43A(7) of the 1997 Act. But I would not have accepted the argument that that defect necessarily made the decision a nullity. There is a difference between no reasons and inadequate reasons. The first notice gave reasons but they were inadequate in that they did not support the decision to grant permission. The inadequacy of reasons can, of course, be the subject of challenge by way of judicial review. In the typical case the challenge is by the disappointed party whose application has been refused without adequate reasons for that refusal having been given. Here there is no such disappointed party - the petitioners are content with the decision and could not care less about the reasons. Were the respondents to mount a "reasons" challenge, the result, at best for them, would be that they were required to issue better reasons. It would not affect the validity of the decision. On any view, therefore, the inadequacy of reasons would not render the decision a fundamental nullity which could simply be ignored.

Second notice - irrationality and natural justice

[57] The petitioners contend that, even if the respondents were entitled to issue the second notice refusing the application for planning permission (notwithstanding that it had taken no steps to reduce the earlier grant of permission), nonetheless the manner in which it exercised that power was irrational in the sense used by Lord Diplock in CCSU v Minister for Civil Service [1985] 1 AC 374, or was contrary to natural justice. The reason, in short, is this. In terms of the legislation to which I have already referred, a person who is refused planning permission has the right to have that refusal reviewed. However, that right must be exercised within three months of the date of the refusal, that date being (in terms of section 37(4) of the Act) "the date on which the notice of the planning authority's decision bears to have been signed on behalf of the authority".

[58] The second notice, although issued in May 2010, was dated 1 December 2009. Mr Armstrong gave me no adequate reason for the second notice bearing that date. His only explanation was that that was the date of the notice which it was replacing. That, of course, is true, but it is not a reason for doing it. On the respondents' view of the matter - and this was the only basis upon which they claimed to be entitled to issue the second notice - the first notice was a nullity. The date on that first notice, therefore, was utterly irrelevant. There was no proper basis for putting any date on the second notice other than the date upon which that notice was issued. The date on the second notice was therefore a false date.

[59] It was not suggested that backdating the second notice was a deliberate ploy on the part of the respondents to deprive the petitioners of their right to have the refusal of planning permission reviewed. I have no reason to believe it was though, of course, no evidence has as yet been heard. But whether that was the intention or not, that is the effect it had. Any review would be out of time.

[60] In those circumstances, I have no doubt that, even if it was within the power of the respondents to refuse the application for planning permission despite the first notice granting it not having been reduced, the second notice should itself be reduced. Whether one labels what has happened irrationality, breach of natural justice or procedural impropriety - and, as made clear in Lakin Ltd v Secretary of State for Scotland 1988 SLT 780, the precise labelling or pigeonholing does not matter - I am satisfied that it was improper, having decided to refuse the application for planning permission, to do so in a way which prevented the petitioners from exercising their statutory right of review.

[61] In addition, by backdating the permission the respondents were retrospectively rendering unlawful the works carried out on the strength of the earlier permission. But I do not base my decision on this latter aspect, since there may be argument, should the point become live, about whether the petitioners carried out the work in the knowledge that the grant of permission was the result of a mistake.

Legitimate expectation

[62] The petitioners also advanced a case based upon legitimate expectation which they said, had been created by the respondents and the denial of which would amount to a misuse of power. I was referred to a number of cases which tended to show that although concepts such as estoppel (in England) or personal bar (in Scotland) had no application in the field of administrative law, the same considerations came into play in the guise of "legitimate expectation". In R (Reprotech) v East Sussex CC [2003] 1 WLR 348 at 358, Lord Hoffman put the matter in this way:

"... public law has already absorbed whatever is useful from the moral values which underlie the private law concept of estoppels and the time has come for it to stand on its own two feet."

The concept was explained in R v Board of Inland Revenue, ex parte MFK Underwriting Agencies Ltd [1990] 1 WLR 1545 at 1569:

"If a public authority so conducts itself as to create a legitimate expectation that a certain course of action will be followed it would be unfair if the authority were permitted to follow a different course to the detriment of one who entertained the expectation, particularly if he acted upon it."

I was referred also in this context to R v Inland Revenue Commissioners, ex parte Preston [1985] 1 AC 835, Nottinghamshire County Council v Secretary of State for the Environment [1986] 1 AC 240, and Lakin v Secretary of State for the Home Department (supra).

[63] The argument here was that the respondents, by their conduct generally, and particularly through the issue of the first notice and, later, the building warrant, represented that planning permission had been granted. The petitioners had relied upon that. That representation was inconsistent with the subsequent refusal by the respondents of planning permission. The petitioners had a legitimate expectation, it was argued, not only that planning permission had been granted but also that it would only be revoked or modified in terms of the statutory scheme, which included a right to compensation. In analogous cases, local authorities had been prohibited from revoking planning permission, or denying that the permission did not cover the development in fact carried out, in face of representations made by persons having ostensible, if not actual, authority to speak on their behalf.

[64] There is, to my mind, no difficulty in accepting the general principle. But its application is necessarily limited, at least in a case such as this. For the argument to be relevant, it has to be assumed that the first notice granting planning permission was a nullity, and was issued without authority. In those circumstances, there would have been nothing to prevent the respondents from applying to the court for reduction of that purported grant of planning permission on the basis that it had been issued without authority and in error. I understood this to be accepted on behalf the petitioners. That seems to make a dent in their case that there was a legitimate expectation that the planning permission granted by the first notice would only be subject to the statutory process of revocation or modification, with appropriate compensation. The petitioners, as respondents to that application, could no doubt have resisted it on the ground that it would be unfair for the grant of permission to be reduced when it had been acted upon. That argument might or might not have been successful, no doubt depending in part on timing and knowledge, matters upon which I have not heard evidence. However, the argument gains nothing from an invocation of the principle of legitimate expectation. The grant of a decree of reduction is always a matter of discretion in light of the equities prevailing. To import into this discussion the concept of legitimate expectation is, to my mind, superfluous.

[65] The concept of legitimate expectation is generally more pertinent to an argument about procedural fairness. When it comes to the exercise of substantive powers, it is difficult to see how the actions of an officer within the planning department, ex hypothesi unauthorised, can bind the planning authority. As Lord Denning MR said in Cooperative Retail Services Ltd v Taff-Ely BC at p.239, a grant of planning permission is made in the public interest and the discretion is entrusted by Parliament to the ministers or representative bodies. It would be quite wrong for it to be pre-empted by a mistaken issue by a clerk of a printed form, or indeed any other unauthorised act by an official within the planning department. Without saying that it can never happen, I find it difficult to contemplate circumstances where the concept of legitimate expectation can be invoked to bind the hand of a statutory decision maker in the exercise of its discretion. If there is any expectation, it exists because the law says it does rather than because of the actings of any person within the authority. In so far as the concept of legitimate expectation applies to procedural matters, again the circumstances in which it arises are likely to be relatively rare. As Dawson J said in Attorney-General for New South Wales v Quin (1990) 93 ALR1, 39, in a passage adopted by Simon Brown LJ in R v Devon County Council, ex parte Baker [1995] 1 All ER 73 at 89:

"No doubt people expect fairness in their dealings with those who make decisions affecting their interests, but it is to my mind quite artificial to say that this is the reason why, if the expectation is legitimate in the sense of well-founded, the law imposes a duty to observe procedural fairness. Such a duty arises, if at all, because the circumstances call for a fair procedure and it adds nothing to say that they are also such as to lead to a legitimate expectation that a fair procedure will be adopted."

That passage was cited with approval in the Inner House in Stannifer Developments Ltd v Glasgow Development Agency 1999 SC 156 at 164.

[66] For these reasons, I do not consider that the concept of legitimate expectation adds anything to the petitioners' case.

Mora, taciturnity and acquiescence

[67] I have delayed until now dealing with the respondents' plea of mora, taciturnity and acquiescence, essentially for this reason: that if I were to uphold that plea, it would mean that, while the petitioners were prevented from challenging the refusal of planning permission by the second notice, the first notice would continue to be in existence and would prima facie be valid in the absence of a petition by the respondent for reduction. That would lead to this situation: that there would exist at the same time both a grant and a refusal of the petitioners' application for planning permission. The respondents would continue to maintain that their grant of planning permission was a nullity, yet would have taken no steps to have it reduced. So the grant of planning permission would stand. But the refusal of planning permission in the second notice would also stand, despite being unquestionably ultra vires, having been issued at a time when there was already a decision on the application. Such a situation would be absurd, and conducive to uncertainty, even chaos, in the planning system. If, to address this problem, the respondents were to commence proceedings of its own for reduction of the first notice, those proceedings for reduction would have been commenced even later than the petitioners' proceedings for reduction of the first notice. Any delay point taken against the petitioners in these proceedings could be taken, with perhaps even greater force, against the respondents in any subsequent proceedings.

[68] In dealing with a plea of mora, taciturnity and acquiescence, the court will, in addition to assessing the facts and the relevant legal principles, have one eye at least on the consequences of any decision it makes. The court will be reluctant to uphold a plea which would have the effect described above.

[69] Nonetheless, I should consider the plea on its merits. I was referred to some of the well-known authorities, including Somerville v Scottish Ministers 2007 SC 140 per Lord President Hamilton at paragraph [94], my decision in United Cooperative Ltd v National Appeal Panel for entry to the Pharmaceutical Lists 2007 SLT 831 at paragraphs 30-31 (cited with approval in Portobello Park Action Group v City of Edinburgh Council [2012] CSIH 69), and that of Lord Boyd of Duncansby in Hendrick v Chief Constable of Strathclyde [2013] CSOH 66 at paragraphs 13-27. Those authorities set out the relevant tests and I need not repeat those tests here.

[70] It is important, in this context, to recall that the purported refusal of permission was sent to the petitioners on 11 May 2010, they having previously, so they thought, had the benefit of a grant of permission. I proceed on this basis, without having heard any evidence, since at this stage the plea of mora, taciturnity and acquiescence has to be addressed on the basis of the facts averred in the petition. The parties entered into correspondence which continued until sometime in 2011, after which there was a period of a year or so where nothing was done. Sheriff court proceedings were raised on 4 April 2012. In those proceedings the petitioners sought declarator, whether competently or otherwise. The present petition was presented in April 2013, in response to the points taken by the respondent in the sheriff court proceedings.

[71] In those circumstances, there has undoubtedly been delay in raising the current proceedings. But it seems to me that the delay worthy of comment is simply that between the end of the correspondence in 2011 and the raising of the sheriff court proceedings in April 2012, when the petitioners took steps to attempt to challenge the second notice. Whether those steps were the correct steps or not is, to my mind, beside the point. In assessing mora, it may be relevant to consider the time up to the commencement of the current proceedings - some 35 months according to Mr Armstrong - though to my mind this is too narrow a view. But in considering taciturnity and acquiescence, any objection raised in whatever way must be taken into account. While the delay in issuing court proceedings is regrettable, it does not by itself indicate acceptance by the petitioners of the decision reflected in the second notice. The initial correspondence made it clear that the decision to refuse permission in the second notice was not accepted, and nothing done by the petitioners since then could have led the respondents objectively to form a view that the petitioners were, in effect, giving up.

[72] For these reasons I shall repel the respondents' plea of mora, taciturnity and acquiescence.

The availability of other statutory remedies

[73] Rule of Court 58.3 governs applications for judicial review. Rule 58.3(1) provides that an application to the supervisory jurisdiction of the court shall be made by petition for judicial review. Rule 58.3(2) provides that an application "under paragraph (1)" may not be made if it could be made by appeal or review under or by virtue of any enactment.

[74] Mr Armstrong, for the respondents, argues that the petitioners have rights which they can pursue under the 1997 Act, and that until they have exhausted those avenues they should not be entitled to bring this petition for judicial review. He refers in particular to the sections of the Act dealing with review and appeal (sections 43A and 238-239), and to the possibility of the petitioners making an application for a certificate of lawful use under sections 150 - 152 of the Act.

[75] I am satisfied that section 43A has no relevant application here. That is the section which gives a right of review, which has to be exercised within three months of the date of the refusal of permission. Since the permission was backdated, there never was any live right to exercise a right of review under that section.

[76] Nor, in my opinion, do sections 238 and 239 have any relevance here. Section 238 is concerned with questioning the validity of development plans. Section 239 is ancillary to that. These sections would not provide a route by which the petitioners could challenge the refusal of planning permission in the second notice.

[77] Section 150 provides a mechanism by which a person wishing to ascertain (a) whether any existing use of buildings or other land is lawful, (b) whether operations which have been carried out in, on, over or under land are lawful, or (c) whether any other matter constituting a failure to comply with any condition or limitation subject to which planning permission has been granted is lawful, may make an application to the planning authority for a certificate of lawfulness: see section 150(1) and (4). Mr Armstrong suggests that this would be the appropriate course for the petitioners to take. However, section 150(2) provides that uses and operations are lawful at any time if no enforcement action may then be taken in respect of them and if they do not constitute a contravention of any of the requirements of any enforcement notice then in force. Section 150(3) contains a similar provision in respect of a failure to comply with any condition or limitation subject to which planning permission has been granted. The problem for the petitioners, were they to go down this route, is obvious. They will be told that they have never had planning permission. This statutory mechanism affords the petitioners no opportunity of challenging the backdated second notice refusing permission. Unless and until the second notice is reduced, the respondents will be entitled to rely on it. All the work carried out to convert the premises to residential use will have been work which required planning permission but did not have it. Enforcement notices have been issued, or have been threatened; and enforcement action may be taken in respect of those works. In those circumstances, any argument by the petitioners that what they have done and are doing is lawful would be bound to fail. To my mind, this suggested statutory route as an alternative to proceedings for judicial review is wholly nugatory.

[78] I was referred for this part of the argument to the Opinion of Lord Brodie in D, Ptnr 2011 SLT 101 and to the decision of the Second Division in British Railways Board v The Corporation of the City of Glasgow 1976 SC 224. That latter authority does not bear on the procedure for judicial review in the Rules of Court, though it makes it clear that in exceptional circumstances - e.g. where allegations that an act is ultra vires - a person aggrieved by the act may not be required to exhaust all other conceivable remedies. The same point was made by Lord Brailsford in Wallace, Ptnr [2012] CSOH 195, where the petitioner for judicial review had a live right of appeal. As to the Opinion of Lord Brodie, I am in full agreement with it. I was also, in this context, referred to City Cabs (Edinburgh) Ltd v City of Edinburgh DC 1988 SLT 184 and to the decision of the House of Lords in R (Reprotech) v East Sussex CC. In view of my decision as to the inapplicability of the alleged alternative remedies, it is unnecessary to say any more about these cases.

One action rule

[79] Mr Armstrong referred to Aitchison v Glasgow City Council 2010 SC 411 at 421, 423 for a reiteration of the "one action" rule, that is to say the rule that only one action may be brought in respect of one claim. He submitted that since the petitioners were maintaining an action in Dundee Sheriff Court, the subject matter of which was the same as the subject matter of this petition, they could not keep both going.

[80] I do not wish to be taken as expressing any opinion as to whether the "one action" rule as laid down in cases such as Aitchison applies without qualification to proceedings for judicial review. An application to the supervisory jurisdiction of the court can only be made by petition under Rule of Court 58.3. It is not uncommon to bring an action for judicial review to run alongside an ordinary action. In the present petition the petitioners simply seek reduction of the second notice; whereas, in the sheriff court action, it is their intention, if successful here, to delete the craves for declaratory relief and confine themselves to their claim for damages. The justification for taking that course is said to be one of expense - it is cheaper to pursue claims for damages in the sheriff court.

[81] The important point, in my opinion, is that the claim in these proceedings for reduction cannot be made in the sheriff court. It has to be made in the Court of Session. In those circumstances I can see nothing in the argument advanced by Mr Armstrong which would impact upon the legitimacy or competency of the present proceedings. If he has a complaint, and I express no opinion upon it, it would be a complaint that the petitioners should not be allowed to continue with their action for damages in the sheriff court but should be forced to include that claim for damages, if they wish to pursue it, as part of the relief claimed in the present petition. Any such complaint can be raised in the sheriff court action, once these proceedings are concluded. If the point is a good one, it impacts upon those proceedings and not these.

Rectification

[82] Finally, I should deal with the respondents' esto argument that if the first notice had legal effect it should be rectified so as to state correctly the decision that was taken. The respondents referred in this context to section 8(1)(b) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 and to Fisher v Wychavon District Council [2001] JPL 694 and Bank of Scotland v Brunswick Developments 1987 Ltd 1995 SC 272. The proposed rectification is a straightforward one: the word "granted" should be replaced by the word "refused", and the words "subject to the following conditions ..." should be deleted.

[83] Section 8(1)(b) of that Act applies the power in the court to order a document to be rectified to "a document intended to create, transfer, vary or renounce a right" which "fails to express accurately the intention of the grantor of the document at the date when it was executed". Section 8(4) provides that subject to s.9(4) of the Act, a document which the court orders to be rectified "shall have effect as if it had always been so rectified". At first blush, and without more, this might lead to injustice where parties other than the grantor of the document had relied upon it. Section 9, however, provides protection to other parties or interests affected by the proposed rectification. Section 9(1) provides that the court shall order a document to be rectified only where it is satisfied that the interests of a person to whom the section applies would not be adversely affected to a material extent by the rectification or has consented to it. Sub-section (2) provides that that section applies to a person who has acted or refrained from acting in reliance on the terms of the document with the result that his position has been affected to a material extent, with the qualification set out in the sub-section (3), that the section does not apply to a person who, at the time when he acted or refrained from acting, knew or ought to have known that the document failed accurately to express the intention of the grantor.

[84] The effect of these provisions would be that the petitioners would be able to argue that rectification should be refused because they had acted in reliance upon the grant of planning permission by carrying out the works, and rectification of the first notice, with its original date, would mean that the work which they had carried out was made retrospectively unlawful. There is force in this - but ultimately it would be a matter for evidence whether the petitioners had acted in reliance upon the original grant and, if they had, whether at the time they so acted they knew or ought to have known that the first notice failed accurately to express the intention of the planning authority. That cannot be answered at this stage.

[85] There is however, in my opinion, a much shorter answer to the respondents' attempt to have the first notice rectified. This esto case proceeds upon the basis that the first notice was written and sent without authority. The officer who sent it out only had authority to communicate decisions taken by the planning officer. He had no power to communicate a decision that had not been taken. If the first notice was sent without authority, it is difficult to see any basis for its rectification. The respondents were not the "grantor" of that document since ex hypothesi they did not authorise its production or issue. The case does not, therefore, fall within s.8(1)(b) of the Act. This argument must fail without enquiry as to the facts.

Disposal

[86] For all of the above reasons, I shall repel the pleas in law for the respondents, sustain those for the petitioners and grant decree of reduction of the second notice purporting to refuse planning permission and declarator in the terms sought in the petition.