1994 S C M R 1393

[(1991) 3 W.L.R 941]

[House of Lords]

Present: Lord Mackay of Clashfern, L.C., Lord Bridge of Harwhich,
Lord Brandon of Oakbrook Lord Ackner and Lord Lowry
McCARTHY & STONE (DEVELOPMENTS) LTD.---Appellants

versus

LONDON BOROUGH OF RICHMOND UPON THAMES---Respondent

(On appeal from Regina v. Richmond upon Thames London Borough Council, Ex parte
McCarthy and Stone (Development) Ltd.)

Decided on 14th November, 1991.

(a) Taxation---

---- Powers to charge tax, fee, rate or toll etc.--No pecuniary burden, by whatever name it may be
called, can be imposed except under clear and distinct legal authority---Obligation to pay charge
cannot be made legal by agreement---Local Government cannot charge for a service unless it is
required by statute to provide such service and is also authorized by law to charge for such
service---Charge without legal authority is ultra vires.

(b) Statutory corporation---

---- Powers of a statutory corporation---What the statute creating the corporation does not
expressly or impliedly authorize is to betaken to be prohibited.

(c) Words & Phrases---

---- Term "functions" covers the powers and duties under various provisions of an Act.

(1990) 2 W.L.R.1294; (1990) 2 All E.R. 852 reversed.

Anthony Scrivener Q.C. and Richard Rundell for the Developers. David Mole Q.C. and Jane
Oldhman for the Council.

Dates of hearing: 20th, 21st May and November, 14, 1991.

JUDGMENT

LORD MACKAY OF CLASHFERN, L.C: --My Lords, I have had the advantage of reading in
draft the speech to be delivered by my noble and learned friend, Lord Lowry, I agree with him
that this appeal should be allowed with costs, for the reasons he gives.

LORD BRIDGE OF HARWICH.---My Lords, I have had the advantage of reading in draft the
speech of my noble and learned friend, Lord a Lowry. I agree with it and for the reasons he gives
I would allow the appeal.

LORD BRANDON OF OAKBROOK ---For the reasons given in the speech to be delivered by
my noble and learned friend, Lord Lowry, I would allow the appeal.

LORD ACKNER.---My Lords, I have had the advantage of reading in draft the speech to be
delivered by my noble and learned friend, Lord Lowry, I agree with it and for the reasons he
gives I, too, would allow this appeal with costs.

LORD LOWRY; -My Lords, this appeal is concerned with the legality of the policy of the
council of the respondents London Borough of Richmond upon Thames ("the council") which it
adopted on -2nd July 1985 and under which it has made a charge for consultations concerning
speculative development or redevelopment proposals between developers and the council's
plaintiff officers preliminary to the making of formal applications for planning permission. The
charge fixed by the council (which was selective) was Pound 25 and is conceded to be
reasonable in both its incidence and its amount. It is, however, the lawfulness of charging at all
for this service which is in issue.

The appellants McCarthy and Stone (Developments) Ltd. ("the developers") paid under protest
for two consultations which were held on 13th August 1986 and 12th January 1987 and then,
having first made unsuccessful representations to the council concerning the legality of its
policy, sought by way of judicial review to challenge the council's decision (contained in a letter
dated 27th October 1987) to continue the practice of charging for preliminary consultations.

Popplewell, J, dismissed the developers' application and the Court of Appeal (Slide and Mann,
L.JJ, and Sir David Croom-Johnson) (1990) 2 W.L.R. 1294 unanimously dismissed the appeal
from his decision. The judgment of the court was delivered by Slade, L.J. and contains, at pp.
12961297, an admirable summary of the facts which I could not hope to improve on and which I
gratefully adopt.

The council is a local planning authority and by virtue of section 29 of the Town and Country
Planning Act, 1971 (now superseded by the Town and Country Planning Act, 1990, of which the
corresponding provision is section 70) was charged with the duty of determining applications for
planning permission properly submitted to it. Section 87 (1) of the Local Government, Planning
and Land Act, 1980 empowers the Secretary of State to provide by regulations for the payment
of a fee of the prescribed amount to a local planning authority in respect of planning
applications. Such regulations have been made, but it is common ground that the fees which they
authorise (or could properly authorise, having regard to the power conferred) relate only to
planning applications and not to any pre-application inquiries or consultations.

It is agreed that, in order to charge for pre-application advice, the council needs a further
statutory authority and that that authority must be found, if found at all, in section 111 (1) of the
Local Government Act, 1972 either in express words or by necessary implication. The section
reads:

"(1) Without prejudice to any powers exercisable apart from this section but subject to the
provisions of this Act and any other enactment passed before or after this Act, a local authority
shall have power to do any thing (whether or not involving the expenditure, borrowing or lending
of money or the acquisition or disposal of any property or rights) which is calculated to facilitate,
or is conducive or incidental to, the discharge of any of their functions. (2) For the purposes of
this section, transacting the business of a parish or community meeting or any other parish or
community business shall be treated as a function, of the parish or community council. (3) A
local authority shall not by virtue of this section raise money, whether by means of rates,
precepts or borrowing, or lend money except in accordance with the enactments relating to those
matters respectively. (4) In this section local authority' includes the common council."

The basis for the proposition, which was accepted by both sides, that statutory authority to
charge is required is the well-known principle exemplified by the ratio decidendi of
Attorney-General v. Wilts United Dairies Ltd. (1921) 37 T.L.R. 884 (Court of Appeal); (1922)
38 T.L.R. 781 (House of Lords).

"In these circumstances, if an officer of the executive seeks to justify a charge upon the subject
made for the use of the Crown (which includes all the purposes of the public revenue), he must
show, in clear terms, that Parliament has authorised the particular charge. The intention of the
legislature is to be inferred from the language used, and the grant of powers may, though not
expressed, have to be implied as necessarily arising from the words of a statute; but in view of
the historic struggle of the legislature to secure for itself the sole power to levy money upon the
subject, its complete success in that struggle, the elaborate means adopted by the Representative
House to control the amount, the conditions and the purposes of the levy, the circumstances
would be remarkable indeed which would induce the court to believe that the legislature had
sacrificed all the well-known checks and precautions, and, not in express words, but merely by
implication, had entrusted a minister of the Crown with undefined and unlimited powers of
imposing charges upon the subject for purposes connected with his department.' Per Atkin, L.J,
37 T.L.R. 884, 886.

Atkin, L.J. further observed, at p. 887:

"It makes no difference that the obligation to pay the money is expressed in the form of an
agreement. It was illegal for the Food Controller to require such an agreement as a condition of
any licence. It was illegal for him to enter into such an agreement. The agreement itself is not
enforceable against the other contracting party; and if he had paid under it he could, having paid
under protest, recover back the sums paid, as money had and received to his use.

I refer also to the observation of Scrutton, L.J., at p. 885:

"It is conceivable that Parliament, which may pass legislation requiring the subject to pay money
to the Crown, may also delegate its powers of imposing such payment to the executive, but in my
view the clearest words should be required before the courts hold that such an unusual delegation
has taken place. As Wilde CJ. said in Gosling v. Veley (1850) 12 Q.B. 328, 407: "The rule of
law that no pecuniary burden can be imposed upon the subjects of this country, by whatever
name it may be called, whether tax, due, rate or toll, except under clear and distinct legal
authority, established by those who seek to impose the burden, has been so often the subject of
legal decision that it may be deemed a legal axiom, and requires no authority to be cited in
support of it.

It is further conceded by the council that the principle applies, whether the money is to be
received by the Crown of central government or by a local authority such as the council here.

In order to succeed in the appeal, the developers must demonstrate to your Lordships that the
Court of Appeal were wrong, but, speaking generally, as the courts below rightly said, it is for
local authority to show that it has the right to charge for the service provided.

My Lords, I have said that the power to charge a fee for the relevant service must, if it exists, be
found in section 111 (1) either expressly or by necessary implication. This provision, as both
sides agree, gives statutory recognition to the common law rule governing the activities of local
authorities and other statutory corporations, as recognised in such well-known authorities on the
doctrine of ultra vires as Ashbury Railway Carriage and Iron. Co. Ltd. v. Riche (1875) L.R. 7
H.L. 653: Attorney-General v. Great Eastern Railway Co. (1880) 5 App. Cas. 473 and
Attorney-General v. Fulham Corporation (1921) 1 Ch. 440. A local authority could at common
law do anything which was reasonably incidental to its functions and the council here relies on
the proposition that to impose a charge for pre-application advice is reasonably incidental, not
merely to the giving of that advice, but also to the council's function of considering and
determining applications for planning permission.

The definition of "function" is important and I would therefore refer at this point to the recent
case of Hazell v. Hammersmith and Fulham London Borough Council (1990) 2 Q B 697
(Divisional Court and Court of Appeal): (1991) 2 W.L.R. 372 (House of Lords) where certain
local authorities had engaged in speculative financial transactions and their power to do so was
in question. In the Divisional Court Woolf, L,J reviewed section 111 (1) and continued (1990) 2
Q.B. 597, 722-723:

"This subsection puts in a statutory form the long-established principle that local authorities have
implied power to do anything which is ancillary to the discharge of any of their functions. The
fact that subsection (1) is expressly made subject to `the provisions of this Act' make it clear that
it is important to construe section 111 (1) in its context. The reference to expenditure, borrowing
or lending, etc., within the brackets in the subsection do not themselves confer any power to
expend, borrow or lend money, etc., but only make it clear that the fact that those activities are
involved does not prevent the activities being within the power of the authority which are
authorised by this subsection. The critical part of the subsection are the words `calculated to
facilitate, or is conducive or incidental to, the discharge of any of their functions.' Before the
subsection can authorise an activity which is not otherwise authorised there must be some other
underlying function which is authorised, to the discharge of which, the activity will facilitate or
be conducive or incidental. What is a function for the purposes of the subsection is not expressly
defined but in our view there can be little doubt that in this context `functions' refers to the
multiplicity of specific statutory activities the council is expressly or impliedly under a duty to
perform or has power to perform under the other provisions of the Act of 1972 or other relevant
legislation. The subsection does not of itself, independently of any other provision, authorise the
performance of any activity. It only confers, as the side note to the section indicates, a subsidiary
power. A subsidiary power which authorises an activity where some other statutory provision has
vested a specific function or functions in the council and the performance of the activity will
assist in some way in the discharge of that function or those functions."

In the Court of Appeal Sir Stephen Brown P., delivering the judgment of the Court, adverted, at
p. 784, to Attorney-General v. Great Eastern Railway Co, and, however set out section 111 (1),
said, at p. 785:

"Standing by itself, this subsection would not seem to give rise to any particular difficulty. We
agree with the Divisional Court that in this subsection the word `functions', which is
accompanied by no statutory definition, is used in broad sense, and is apt to embrace all the
duties and powers of a local authority: the sum total of the activities Parliament has entrusted to
it. Those activities are its functions. Section 111 (1) confirms that, subject always to any contrary
statutory provision, a local authority has power to do all the ancillary things requisite for carrying
out those activities properly. This construction accords with the codifying purpose for which the
subsection was enacted.
In this House Lords Templeman said (1991) 2 W.L.R. 372,383:

"In Attorney-General v. Great Eastern Railway Co., 5 App. Cas. 473, Lord Blackburn said, at p.
481: `where there is an Act of Parliament creating a corporation for a particular purpose, and
giving it powers for that particular purpose, what it does not expressly or impliedly authorise is
to be taken to be prohibited; ....'In the same case Lord Selborne, L.C. said, at p. 478, that the
doctrine of ultra vires: `ought to be reasonably, and not unreasonably, understood and applied,
and that whatever may fairly be regarded as incidental to, or consequential upon, those things
which the legislature has authorised, ought not (unless expressly prohibited) to be held, by
judicial construction, to be ultra vires.' In the same vein Lord Blackburn said, at p. 481: `those
things which are incident to, and may reasonably and properly be done under the main purpose,
though they may not be literally within it, would not be prohibited.' Section 111 embodies these
principles. I agree with the Court of Appeal (1990) 2 Q.B. 697. 785c that in section 111 the word
`functions' embraces all the duties and powers of a local authority; the sum total of the activities
Parliament has entrusted of it. Those activities are its functions."

The observations of my noble and learned friend, Lord Ackner, were to the same effect where he
said, at p. 398: "I accept that `functions'; in section 111 (1) covers the powers and duties of the
local authority under the various provisions of the Act." (Emphasis supplied.)

It is, accordingly, clear that the consideration and determining of planning applications is a
function of the council, but the giving of pre-application advice, although it facilitates, and is
conducive an incidental to, the function of determining planning applications, is not itself a
function of the council.

Thus, it is one thing to say that the giving of pre-application planning advice facilitates or is
conducive or incidental to the council's planning functions but it is quite another thing to say that
for the council to charge for that advice also facilitates or is conducive or incidental to those
functions. The council presented its case on the basis that charging for the service facilitates, or
is conducive or incidental to, the giving of the pre-application advice but, even assuming that to
be a fact, this way of presenting the case would simply amount to saying that imposing a charge
facilitates, or is conducive or incidental to, a service which in its turn facilitates, or is conducive
or incidental to, the council's planning functions. The developers, on the other hand, submit that,
in order to qualify as something which is authorised by section 111 (1), the imposition of a
charge for pre-application advice must facilitate, or be conducive or incidental to, the planning
functions themselves. If not, the developers contend, the charge is not within the powers of the
council, since it is admittedly not authorised by any provision outside section 111. In this
connection the argument that something which is incidental to the incidental (but not incidental
to the function) does not pass the test is not a novelty: see Attorney-General v. Manchester
Corporation (1906) 1 Ch. 643, 656, per Farwell, J., cited in Hazell v. Hammersmith and Fulham
London Borough Council (1990) 2 Q.B. 697, 724.

My Lords, let me now turn to another argument for the council which found favour in the courts
below. In their judgments the Court of Appeal have contrasted functions, such as planning,
which the council has a duty to provide, with those, such as providing a museum, a library or a
public park, which it has power to provide, on the basis that without statutory authority the
council cannot charge for the provision of a function which it has a duty to provide, whereas it
can charge for a function which it has merely power to provide (or not to provide) at its
discretion. Thus, it is said, the council can charge for a service which at its discretion it provides
by virtue of section 111(1), as facilitating or being conducive or incidental to the relevant
function (in this case the function of considering and determining planning applications.)

My Lords, the council's interpretation of section 111 (1) is built on that proposition, but I
consider its reasoning to be mistaken, because it does not by any means follow that all of the
discretionary functions of the council or all of the facilitating or incidental activities
contemplated or possibly contemplated by section 111 are services for which it is permissible to
charge in the absence of express authority to do so. The rule is that a charge cannot be' made
unless the power to charge is given by express words or by necessary implication. These last
words impose a rigorous test going far beyond the proposition that it would be reasonable or
even conducive or incidental to charge for the provision of a service. Furthermore, as it seems to
me, the relevance of the contrast attempted to be drawn, with respect to the power of vitiated
when one has regard to the large number of discretionary functions for the provision of which
express statutory authority to charge has been enacted. I am not impressed by the submission that
an express power to charge for the performance of discretionary functions may have been
conferred "for the sake of clarity".

In support of its case the council instanced situations in which, without any express authority, it
seemed obvious that a charge would properly be made but to say that the council can receive
payment for the sale of redundant and worn-out equipment does not, to my mind, advance the
argument that a. council can without statutory authority charge for a service. The power to sell
for example, old motor-cars for which the council no longer has a use necessarily implies that, in
the interests of the ratepayers, the council will recover from a commercial transaction the return
which any seller would expect to receive, as a normal incident of local government
administration. The provision for a financial consideration of facilities to hold a conference was
also discussed. This, on the assumption that it is a legitimate activity, has the character of
conducting a business, and it would be a strange and unjust result if those who enjoyed the use of
the facilities provided were to do so at the expense of the ratepayers or their modern equivalent. I
would not be prepared to say (and it is for present purposes unnecessary to say), that, in the
absence of express statutory power, there can never be a case in which the power to charge arises
by necessary implication; but I have heard no convincing argument to show how the present
facts could support such an implication.

The council has cited Harris v. Wyre Forest District Council (1988) OR 835 (Court of Appeal):
(1990) 1 A.C. 831 (House of Lords), where, as a prospective mortgagee, the local authority
charged the prospective purchasers and mortgagors of a house a valuation and administration fee
of L 22. The explanation for this may be that Parliament, having authorised the council to lend
money on mortgage and having, by section 43 (3) (e) of the Housing (Financial Provisions) Act,
1958, required the council to obtain a valuation before advancing any money, must be taken to
have authorised the council to conduct its business transaction in the same way as a bank or a
building society might do. The question in that case, as your Lordships will recall, was not
concerned with the lawfulness of demanding payment of the L 22 fee. That point was not
discussed and I refrain from discussing it now.

Your Lordships have seen the affidavit of Mr. G.R. Chesman, assistant head of legal services
with the council. There is, of course, statutory authority for a council to charge for a land charges
search. As for the charges made for the other services mentioned, they would all need to be
considered individually in order to decide by what authority, if any, and with what propriety each
one has been imposed:

Mr. Scrivener, for the developers, relied before your Lordships, as he had in the Court of Appeal,
on section 150 of the Local Government and Housing Act 1989 which only came into force on
16th January 1990, having received the royal assent on 16th November 1989. It reads:

"(1) The Secretary of State may make regulations providing that a charge may be imposed in
respect of anything---(a) which is done by any relevant authority or by any relevant authority of a
prescribed description, (b) which is prescribed or falls within a prescribed description, (c) in
respect of which there is no power or duty to impose a charge apart from the regulations, and (d)
which is not done in the course of exercising an excepted function. (2) The regulations may
include such provision as the Secretary of State sees fit as regards charges for which the
regulations provide and nothing in subsections (3) to (5) below or section 190 (1) below is to
prejudice this. (3). The regulations---(a) may be made as regards services rendered, documents
issued, or any other thing done by an authority (whether in pursuance of a power or a -duty); (b)
may provide that the amount of a charge (if imposed) is to be at the authority's discretion or to be
at its discretion subject to a maximum. (4) Where the regulations provide that a charge may not
exceed a maximum amount they may---(a) provide for one amount, or a scale of amounts to
cover different prescribed cases; (b) prescribe, as regards any amount, a sum or a method of
calculating the amount. (5) The regulations may include such supplementary, incidental,
consequential or transitional provisions as appear to the Secretary of State to be necessary or
expedient. (6) No regulations may be made under this section unless a draft of them has been laid
before and approved by a resolution of each House of Parliament."

It should be noted that regulations made pursuant to this provision are to be subject to affirmative
resolution of both Houses.

The claim on the part of the developers is that the enactment of this section shows that the
council's interpretation of section 111 (1) cannot be well founded, because, if it were, section 150
would be left without a useful function. I do not think, however, that this contention is
necessarily correct, because section 150(1) (c) might be contemplating a u function in regard to
which neither a power nor a duty to charge had been enacted. The circumstances in which resort
can be had to later legislation for the purpose of statutory interpretation are not entirely clear: see
Maxwell on Interpretation of Statutes, 12th ed. (1969), pp. 69-71 and Ormond Investment Co.
Ltd. v. Betts (1928) A.C. 143, but I do not propose to trouble your Lordships with a discussion of
the point on this occasion because I do not consider in any event that section L50 of the Act of
1989 provides a reliable indication as to the meaning of section 111. Two things, however, can
be said: section 150 (3) (a) does not make in the charging context any distinction between
discretionary functions and duty functions; and the legislature, having enacted section 150, has
provided a convenient means of tidying up a confused scene, so far as charging for services in
the future is concerned.

What the Court of Appeal had to say about section 150 in their judgment is found at (1990) 2
W.L.R.1294,1304:

"section 150 et seq. of the Local Government and Housing Act, 1989 contain a number of new
provisions relating to the imposition of charges by certain authorities, but we do not think that
this legislation affects the question which we have to decide."

I respectfully agree.

The developers in their notice of appeal from Popplewell, J. put forward another argument based
on section 111 (3) to the effect that that subsection -completely prevents a local authority from
raising money by virtue of section 111, and in particular by virtue of section 111 (1), with the
result that no charge can be made for any service unless authority is found outside section 111.
The Court of Appeal, quite rightly in my view, rejected that argument The subsection forbids (1)
the raising of money by any one of three methods and (2) the lending of money, in each case
except in accordance with the specific enactments which deal with the subject. The developers
argument would require the addition of the words "or otherwise" after the word "borrowing" to
get off the ground and, even then, m the context of "rates, precepts or borrowing", to equate
charging for a service with the raising of money appears to me to demand a very forced
interpretation of language. I therefore agree with the conclusion of the Court of Appeal, at p.
1299, that section 111 (3) "imposes no restrictions on the council's powers directly material for
present purposes". I would, however, point out that section 111(3), on its true construction, does
not provide any affirmative support for the argument that section 111 (1) is an authority for
making the charge with which this appeal is concerned.

The clues to interpretation to be derived from other statutory provisions were of modest
persuasive force, but perhaps I might mention certain paragraphs of Circular No. 28/83 issued
jointly by the Department of the Environment and the Welsh Office on 29th December 1983:

"7. The Secretaries of State recognise that local planning authorities are concerned to ensure that
the development control system is operated in a way which serves the best interest of the
community and secures developments of good quality. They also attach great importance to the
timely handling of planning applications, and authorities are reminded of the need to take
account of the advice contained in D.O.E., Circular 22/80 (Welsh Office Circular 40/80). Local
authorities, applicants and consulters all have important roles to play in ensuring not only a
speedy and efficient service but also one which takes proper steps to secure local planning
policies.

8. Local authorities' attention is drawn to the need for: (i) prompt decisions to be seen to be a
priority by local authority members and officers: (ii) procedures to be designed to avoid
unnecessary delay; (iii) those procedures to be reviewed periodically and adjustments made to
meet changing circumstances; (iv) early informal discussions with applicants and their agents to
be encouraged. Where possible, these should include discussion about features of schemes which
mate give rise to the imposition of conditions in the event of permission being granted.
Applicants can then consider the scope for adjusting the scheme prior to formal submission of a
Planning application so as to render the conditions unnecessary if the local planning authority are
minded to grant planning permission;. (v) planning departments to (a) co-ordinate the
requirements of statutary consultees; (b) make particular efforts to resolve any conflicting
requirements; and (c) where necessary, invite those organisations and departments with an
interest in applications to be represented at any meetings with applicants or their agents.

9. The attention of applicants is drawn to the need for early discussions to be held with local
planning authorities so that...16. There will be some financial and manpower costs associated
with the impelemtation of this code. These costs will vary between local authorities according to
the extent to which information is already collected by them for their own use. However, there
may be some offsetting benefits to be obtained by local authorities from the use of the
information required by the code in the management of their development control duties."

The developers placed some reliance on paragraph 16 as showing that local authorities were
expected to incur expense by providing a mutually helpful service, but as your Lordships have
seen in the present case, even if fees were charged, the recommended service was unlikely to pay
for itself out of direct revenue. I do not consider that it is either justifiable or necessary for the
developers to look to such a slender argument in order to support their case.

My Lords, I come back to section 111(1), the relevant provision. The council admits that it
cannot without express authority charge for a "duty function", but it still has to say that the
ability to charge for pre-application advice is based on the "power to do any thing" which is
"incidental" (I deliberately choose the most neutral qualification) "to, the discharge of any (of the
councils') functions." To charge for performing a function (subject always to Wednesbury
considerations (Associated Provincial Picture Houses Ltd. v. l Wednesbury Corporation (1948) 1
K.B. 223), which do not arise here) must always be incidental to the provisions of the service
provided. Therefore the, council's interpretation of section 111 (1) would allow it to charge for
the. performance of every function, both obligatory and discretionary, which, provided a service
(and, even without section 87 (1), there would be nothing unreasonable or irrational in charging a
proper fee for determining a planning' application. Such a construction of the subsection cannot
possibly be justified and I say this before even considering the point that, in the absence of
express statutory authority, the power to charge can only be implied, in the words of Atkin, L.J,
in Attorney-General v. Wilts United Dairies Ltd., 37 T.L.R. 884,1 886, "as necessarily arising
from the words of a statute."

There is yet a further point, to which I have already adverted. As the Court of Appeal have said
(1990) 2 W.L.R. 1294, 1302-1303, the power to give, pre-application advice is neither a duty nor
a discretionary express power, but is a subsidiary power arising by virtue of section 111(1)
(which has codified the common law), because it is calculated to facilitate, or is conducive or
incidental to, the discharge of one of the council's functions. To charge for the exercise of that
power is, at best, incidental to the incidental and not incidental to the discharge of the functions.

A further point which commended itself to the Court of Appeal, at p. 1303, was the argument
that, since the council was not obliged to provide the' service in question, it could state on a "take
it or leave it" basis that it was willing to provide it for a reasonable fee, as if entering into a
contract. I consider this to be an untenable proposition which, if correct, would justify a' local
authority in charging for any discretionary service, but which in reality is' in conflict with the
second principle enunciated by Atkin, L.J. in Attorney General v. Wills United Dairies Ltd., 37
T.L.R. 884, 887 (already cited).

My Lords, for these reasons I would allow the appeal and would order the council to pay the
developers' costs in this House and in the courts below.

Anneal allowed with costs Orders of Court of Appeal and Popplewell. J. set aside.

Decision of council of 27th October 1087 quashed.

Declaration that council has no power to charge fee for answering inquiries or requests for
information before making of application for planning permission.

Solicitors: Metson Cross and Co. Assistant Head of Legal Services, Richmond upon Thames
London Borough Council.

M.B.A./138/T.F. Appeal allowed.