Section 70C TCPA 1990: Power to Decline Determination Applies to Prospective Applications and Survives Compliance/Direct Action
1. Introduction
Moran, R (On the Application Of) v Medway Council concerned a judicial review challenge to Medway Council’s decision
(as local planning authority) to decline to determine Mr Moran’s planning application under
section 70C(1) of the Town and Country Planning Act 1990 (“TCPA 1990”).
The appeal raised a question of general importance: the proper construction, purpose, and reach of section 70C(1),
including whether it is confined to “retrospective” applications made to delay enforcement, and whether it can be used where
the breach has already been remedied (including by the authority’s direct action) and the later application is framed prospectively.
The parties were: (i) Mr Moran, the appellant and landowner (a Gypsy/Traveller), (ii) Medway Council, the respondent planning authority,
and (iii) the Secretary of State for Housing, Communities and Local Government, intervening due to the statutory interpretation issues.
The land had a long enforcement history. A 2017 enforcement notice alleged, among other matters, unauthorised residential use,
stationing of caravans/mobile homes, and operational development (hard surfacing, storage/breaking of vehicles, stockpiling).
Over time, Medway repeatedly used section 70C to decline determination of various applications relating to similar development.
By the time of Mr Moran’s 2023 application for residential use with caravans/mobile homes and associated buildings, the Council had
previously taken direct action to clear the site. Nonetheless it decided section 70C(1) applied and declined to determine.
The core issues were:
- Scope: Can section 70C(1) apply to prospective applications and/or after compliance or direct action?
- Purpose (Padfield): Is section 70C(1) aimed only at preventing delay in enforcement, or more broadly at preventing duplication of merits consideration?
- Discretion and mandatory considerations: Did the Council fail to consider legally mandatory matters when deciding to invoke section 70C?
2. Summary of the Judgment
The Court of Appeal (Dove LJ; Arnold LJ and Peter Jackson LJ concurring) dismissed the appeal.
It held that, on the plain language of section 70C(1), the power:
- is not limited to applications that are “retrospective” in the sense of seeking permission for development currently on the land;
- is not excluded where the breach has already been remedied, including by direct action or compliance;
- is triggered where an application (on the same land covered by a pre-existing enforcement notice) would involve granting permission in respect of any part of the matters specified in that notice as a breach.
The Court confirmed that the statutory purpose of section 70C is to prevent an applicant being able to insist upon
two separate considerations of the underlying planning merits of the breach of planning control (unless the authority chooses otherwise),
and that any anti-delay function is collateral rather than exhaustive.
On “mandatory considerations”, the Court held the Council’s approach to the section 70C discretion was lawful.
Alleged omissions (including express reference to a local plan Gypsy/Traveller policy, quantified need, consultee objections, and a flood zone error)
did not vitiate the decision: the merits review undertaken was sufficient for the section 70C context, and the flood zone mistake was not material
to the discretionary decision given the other reasons relied upon.
3. Analysis
3.1 Precedents Cited
R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Limited [2001] 2 AC
The Court used Spath Holme as the interpretive foundation: statutory meaning is derived from the words used,
read in context and purpose, with caution about external aids. This framed the Court’s insistence that
section 70C(1)’s operative text controls and is not cut down by the heading “retrospective”.
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
The appellant’s case was cast as a Padfield complaint: Medway allegedly used section 70C in a way that thwarted the policy of the Act.
The Court rejected this by defining the policy/object of section 70C as avoiding duplication of merits determinations, not merely stopping delay.
Once that purpose was properly identified, Medway’s use fell within it.
Wingrove had emphasised (with reference to academic commentary) that section 70C could serve to prevent retrospective applications being used to
delay enforcement, and suggested a “legislative steer” towards exercising the discretion where an enforcement notice could be appealed.
The Court of Appeal treated those observations as fact-sensitive, not a definitive statement that delay-prevention exhausts the section’s purpose.
Delay may be a benefit, but cannot be the only purpose given the breadth of scenarios the wording captures.
R (on the application of O'Brien) v South Cambridgeshire District Council and the Secretary of State for Communities and Local Government [2016] EWHC 36 (Admin), [2016] JPL 656
O'Brien was pivotal. Lewis J held section 70C’s text is clear and does not require inquiry into whether the application was motivated by delay.
He identified the “logic” and “mischief” as preventing a person from insisting on two routes to merits consideration:
(i) an appeal against refusal of permission and (ii) an enforcement appeal under ground (a).
The Court of Appeal in Moran explicitly endorsed that understanding as the correct construction and purpose, and treated it as consistent with the
statutory scheme (including amendments introduced by section 123 of the Localism Act 2011).
R (on the application of Seventeen De Vere Gardens (Management) Limited) v Royal Borough of Kensington and Chelsea [2016] EWHC 2869 (Admin)
Seventeen De Vere Gardens was used to show that section 70C should not be deployed in a way that prevents any first merits determination
where an enforcement inspector has effectively extended time to allow an effective planning application route to be pursued.
The Court of Appeal treated it as consistent with O’Brien: the vice was not the existence of section 70C power, but a misleading officer report
and the fact that the merits had not yet been determined.
Cited (via Seventeen De Vere Gardens) for the proposition that an inspector can allow a ground (g) appeal to provide time for an
alternative scheme not comprised in the matters in the enforcement notice to be explored by a planning application.
The Court of Appeal used this to reinforce that section 70C’s focus is on overlap with the matters specified in the notice, not on blocking
consideration of genuinely distinct alternatives.
Banghard was treated as consistent with the endorsed approach: section 70C did not apply there because the later application did
not seek permission for the same breach described in the enforcement notice.
The Court of Appeal emphasised that Banghard turned on the scope of the “matters specified” and whether there was the requisite overlap.
R (Chesterton Commercial (Bucks) Limited) v Wokingham Borough Council [2018] EWHC 1795 Admin), [2019] PTSR 2020
Chesterton supplied detailed analysis of how section 70C operates:
(i) identify the breach as stated in the enforcement notice; (ii) compare it to the development sought; (iii) determine whether there is overlap
(even partial) sufficient to engage the power; (iv) only then consider the discretion to decline.
The Court of Appeal adopted that structured understanding and stressed that the statutory test is satisfied by partial overlap.
R (on the application of Newsmith Stainless Limited) v Secretary of State for Environment, Transport and the Regions [2001] EWHC 74 (Admin)
Cited for the general point that challenging planning judgments on rationality faces a high hurdle.
In Moran, this informed the Court’s resistance to recasting merits disagreements as “mandatory considerations” errors.
3.2 Legal Reasoning
(a) Textual trigger: overlap + pre-existing notice
The Court began (per Spath Holme) with the statutory words. Section 70C(1) is triggered if granting permission would involve granting, in relation to
land covered by a pre-existing enforcement notice, permission in respect of “the whole or any part” of the matters specified in that notice as the breach.
On the facts, the 2023 application sought residential use and stationing of caravans/mobile homes and associated works—matters overlapping with those specified in the
2017 notice—so the statutory gateway was satisfied.
(b) “Retrospective” in the heading does not narrow the operative text
The appellant relied on the heading “Power to decline to determine retrospective application”. The Court held this could not override the enacted language.
“Retrospective” was also capable of meaning “looking back” to development/breach that had occurred in the past and was the subject of enforcement, even if the land
had since been cleared. Nothing in the text creates a carve-out once a breach is remedied.
(c) Purpose: preventing duplication of merits consideration (not only delay)
The Court identified the central purpose as preventing a person from being able to insist on two determinations of the underlying merits of the same breach
where an enforcement notice predates the application—unless the authority chooses to entertain a further application.
Delay prevention may follow, but is not the sole or defining aim; otherwise the wording would be inexplicably broad and the scheme inconsistent.
(d) Prospective applications are within scope
The Court found further support for breadth in the express inclusion of “permission in principle”, which is inherently oriented to prospective development.
This reinforced that section 70C is not confined to applications for development currently physically present on the land.
(e) A practical decision framework (guidance-style clarification)
The judgment distilled the operative questions a planning authority should ask before relying on section 70C (paragraph 64):
- Is there a pre-existing enforcement notice on the whole or part of the application site?
- Does the application seek permission for development which (in whole or part) includes development identified as the breach in that notice?
- If yes, the authority has a discretion either to decline to determine or to accept and determine on the merits.
(f) Mandatory considerations and materiality
The Court rejected the attempt to require the authority to treat “will it delay enforcement?” as mandatory: that view depended on the appellant’s rejected
construction/purpose case. The Court also held the authority’s “merits scan” was adequate for section 70C’s discretionary stage:
it need not be a full merits determination, and alleged gaps (policy H13 analysis, quantified shortfall detail, consultee objections) were not “so obviously material”
that it was irrational to omit them.
The Council’s error as to flood zone was acknowledged but held immaterial to the discretionary decision because multiple other policy harms were relied upon.
The Court treated the challenge as, in substance, a disagreement with planning judgment rather than a public law defect.
3.3 Impact
(a) Doctrinal impact: breadth and durability of section 70C
The decision provides appellate-level clarification that section 70C:
- is not confined to “retrospective” applications in the narrow sense;
- can be used even after compliance with an enforcement notice or after the authority’s direct action has removed the breach;
- turns on overlap with the matters specified in the notice, not on subjective motives (e.g., whether the applicant is “gaming the system”).
(b) Administrative impact: stronger gatekeeping for repeat proposals on enforced land
Planning authorities are likely to rely on Moran to resist repeated re-litigation of the merits of development substantially matching an enforced breach,
including where an owner attempts to “reset” the position by clearing the land and submitting a fresh (nominally prospective) application.
Applicants will need to focus on demonstrating that their proposal is genuinely different from the matters specified in the enforcement notice (as in the logic of
Banghard), or persuade the authority that discretion should be exercised to determine despite overlap.
(c) Equality/welfare-sensitive contexts (including Gypsy and Traveller development)
While the appellant emphasised unmet Gypsy/Traveller pitch need and the lack of prior merits consideration, the Court’s approach indicates that such considerations
go primarily to the discretion stage, and must meet a high threshold to become “mandatory” in public law terms.
The decision does not diminish the relevance of need in a full determination, but confirms that section 70C can lawfully prevent a full merits determination where the
statutory overlap test is met and discretion is lawfully exercised.
4. Complex Concepts Simplified
- Enforcement notice (TCPA 1990)
-
A formal notice alleging a breach of planning control, specifying the breach and the steps required to remedy it, with a compliance period.
It can be appealed on statutory grounds (section 174), including (where available) that planning permission should be granted (ground (a)).
- “Matters specified” as the breach
-
The description in the enforcement notice of what the authority says is unlawful (e.g., unauthorised residential use; stationing of caravans; hardstanding).
Section 70C focuses on whether the new application would grant permission for any part of those same described matters.
- Section 70C: “decline to determine”
-
A power to refuse to process and decide the planning application at all (i.e., no merits determination), where the statutory overlap conditions are met.
It is a discretionary gateway: if engaged, the authority may still choose to determine, but is not obliged to.
- Padfield principle
-
A public authority must exercise statutory discretion to promote the policy and objects of the Act; it acts unlawfully if it uses discretion to frustrate that purpose.
In Moran, the relevant purpose was identified as preventing duplication of merits determinations, not merely preventing delay.
- Mandatory material consideration (public law)
-
A consideration so obviously relevant that failing to take it into account is irrational/unlawful. Moran confirms that section 70C decisions do not require a full
planning assessment; challenges face a high bar unless an omission is plainly decisive.
5. Conclusion
Moran cements an appellate-level rule on section 70C TCPA 1990: the power to decline to determine is engaged by
objective overlap between a new application and the “matters specified” in a pre-existing enforcement notice, and it is
not limited to narrowly “retrospective” applications nor defeated by subsequent site clearance through compliance or direct action.
The statutory purpose is to prevent an applicant insisting on more than one merits determination of the same breach.
Practically, the decision encourages a structured approach: confirm the pre-existing notice, assess overlap, then decide whether discretion should be exercised.
For applicants, the critical route around section 70C is not proving absence of delay motives, but demonstrating that the proposal does not grant permission for
any part of the breach described in the enforcement notice—or persuading the authority, on compelling discretionary grounds, to determine despite overlap.