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Declining to determine applications

Planning 146x219The High Court has clarified the scope and application of Section 70C of the Town and Country Planning Act 1990 - the power to decline to determine planning applications, writes Saira Kabir Sheikh QC.

In Chesterton v Wokingham BC [2018] EWHC 1795 (Admin), the High Court (Upper Tribunal Judge Martin Rodger QC) considered whether a local authority had properly exercised its discretion under section 70C of the Town and Country Planning Act 1990 to decline to determine an application if to do so might grant planning permission for the whole or any part of a matter identified as a breach of planning control in a pre-existing enforcement notice.

This provision aims to avoid delay in enforcement by ensuring that the merits of unauthorised development are only considered once, in an appeal against the enforcement notice under section 174(2)(a).

In Chesterton, the Claimant had exercised his right to such an appeal, against an enforcement notice issued against a complex comprising a new boathouse and garage, which were connected by a single-storey link building. The enforcement notice was upheld, but varied to require only the removal of the link building, and planning permission was refused under the deemed application provision of section 177(5). The Council declined to determine the Claimant’s subsequent planning application for the creation of a “balcony” to link the garage and boathouse.

It was argued by the Claimant that reliance on the power was unlawful where there was a material difference between the matter enforced against and the development proposed in the new application. This was because the development proposed may give rise to different planning considerations than those in the appeal against the enforcement notice.

This submission was rejected on four grounds, UTJ Martin Rodgers accepting the arguments of the Council:

What matters is the breach specified in the enforcement notice. Section 70C is not concerned with the existence of differences between two developments, but with the existence of similarities – thus the discretion is available where any part of an enforced against matter was involved;

The statutory purpose was to prevent tactical appeals. The Claimant had failed to raise the proposal for which he now sought permission at the enforcement appeal. The judge therefore commented that “the applicant cannot have multiple ‘bites at the cherry’, but nor can he decline the cherry when it is available to be bitten, and insist on biting it on a later occasion”;

The case of R (Banghard) v Bedford Borough Council [2017] EWHC 2391 (Admin) upon which the Claimant heavily relied was distinguished on its facts (in that case permission was sought for a storage unit, and the matter enforced against was the erection of a dwelling house), and moreover the compatibility with the statute of some of the dicta in that case was doubted.

The question of whether or not the discretion is available to a local authority is an objective exercise, requiring a comparison between two documents, whereas the decision whether or not to exercise such a discretion is a matter of judgment.

This case provides an important assessment of section 70C, which, introduced by section 123(2) of the Localism Act 2011 with effect from 6 April 2012, is still bedding down in the case law. It follows hot on the heels of R (Banghard) v Bedford Borough Council [2017] EWHC 2391 (Admin) and limits its application to its facts. This decision will be helpful to authorities seeking to curb the tactical use of fresh planning applications to evade complying with enforcement notices.

Saira Kabir Sheikh QC is a barrister at Francis Taylor Building. She acted on behalf of Wokingham Borough Council.

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