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R (On the Application of East Hertfordshire District Council) v First Secretary Of State
[2007] EWHC 834 (Admin)

This is a very interesting case as it considers to what extent estoppel in public law survives the House of Lords decision in Reprotech and considers exceptions to the application of cause of action estoppel.


In this case, the Council had granted planning permission to the interested party for the redevelopment of a barn to form bed and breakfast lettings. An enforcement notice was issued against the interested party because the Council considered that the barn had not been erected in accordance with the approved plan.

Due to an administrative error on its part, the Council failed to submit any representations or statement of its case for consideration by the inspector at the appeal which was dealt with by written representations.

The inspector found that the lack of factual information from the Council was so fundamental that he had no alternative but to allow the appeal and quash the notice, although that would not prejudice the Council in issuing a further notice.

The Council did so, and the interested party appealed against that enforcement notice. The second inspector found that where an appeal had previously succeeded under s.174(2)(c), it meant that those matters had been found not to constitute a breach of planning control, and that the inevitable consequence of such a finding had to be that the provisions of s.171B(4) could not apply, as there was no breach of planning control against which the authority could make a second attempt. This meant that the Council’s second enforcement notice was a nullity and had to be quashed.

The Council contended that the principle that cause of action estoppel was applicable to decisions by inspectors allowing appeals against enforcement notices under section 174(2)(b) to section 174(2)(d) of the Town and Country Act 1990 should not apply because, in the very unusual circumstances of this case, the second inspector had allowed the appeal against the first notice because he had been unable, in the complete absence of any relevant information, to reach any conclusion as to whether there had been a breach of planning control. In the alternative, they contended that in any event, if there was a cause of action estoppel, then on the facts of the instant case there were special circumstances that justified not applying the doctrine in an inflexible manner.


The Court held that it was implicit in the concept of cause of action estoppel that a matter had been adjudicated not that the court or tribunal had been unable to adjudicate upon an issue because of a complete lack of information. The Court also considered that in special circumstances justice might require the non-application of the cause of action estoppel rule in special circumstances,

In deciding whether there were special circumstances that might justify such a departure, the question of fairness to the public interest, in respect of the necessity for planning control, was a relevant factor. In this case there would be no injustice to the interested party because it would be able to present any evidence to demonstrate that no breach of planning control existed.

The decision of the inspector was quashed.

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