Factual and Procedural Background
The Plaintiff owns freehold title to two adjacent properties on the east side of a street in The City, with a third property located opposite one of them. In 2010, redevelopment on the west side displaced pigeons, which began roosting on the Plaintiff's properties, causing nuisance through droppings. In December 2013, with the agreement of the neighboring property owner, pigeon-deterrent netting was erected across the rear of the properties without obtaining planning permission.
In April 2014, the Defendant local planning authority ("the Council") was notified of the unauthorised netting, prompting an investigation. In July 2014, the Plaintiff’s agents submitted a planning application ("the First Application") which was deemed invalid due to the absence of required scale drawings. The Plaintiff instructed the agents to put the application on hold, and no further information was provided. The Council warned that enforcement action would proceed if the netting was not removed or the application completed.
In December 2014, the Council issued an enforcement notice requiring removal of the netting, effective from a date incorrectly stated as before its issue. The Plaintiff appealed the enforcement notice on multiple grounds, including that planning permission ought to be granted (ground (a)) and that the compliance period should be extended (ground (g)). The appeal on ground (a) failed due to non-payment of the required fee, but the Inspector allowed an extension of the compliance period from one month to five months under ground (g) to enable the Plaintiff to submit a further planning application.
In January 2016, the Plaintiff submitted a second planning application ("the Second Application"), which was complete and identical in substance to the first. The Council decided to refer the application to its Planning Applications Committee ("PAC"). The PAC declined to determine the application under section 70C of the Town and Country Planning Act 1990, reasoning that the development was the same as that subject to the enforcement notice and thus the Council could exercise discretion to refuse to determine the application. The Plaintiff challenged this decision in court.
Legal Issues Presented
- Whether the Council lawfully exercised its discretion under section 70C of the Town and Country Planning Act 1990 to decline to determine the Second Application, given the prior enforcement notice and appeal history.
- Whether the Officer's Report to the PAC materially misrepresented the Inspector's decision on the enforcement appeal, particularly regarding the meaning of a "revised" planning application and the scope of the Council's discretion under section 70C.
- Whether the PAC was misled by the Officer's Report in exercising its discretion to decline to determine the Second Application.
Arguments of the Parties
Appellant's Arguments
- The Officer's Report misrepresented the Inspector's decision on ground (g) of the enforcement appeal by suggesting that the Inspector contemplated only a materially different ("revised") application, while in fact the Inspector intended the Plaintiff to have time to submit a further application for the same development but complete with necessary drawings.
- The PAC was materially misled by the Officer's Report, which understated the extent of its discretion under section 70C and failed to accurately reflect the Inspector's views and decision.
- The Plaintiff’s failure to pay the fee on the first appeal was an administrative error, not an attempt to manipulate the system, and the Inspector’s grant of additional time was intended to remedy that failure.
- The PAC should have considered the Second Application on its merits or given reasons if it declined to determine it, taking into account the Inspector’s properly construed decision.
Respondent's Arguments
- The Inspector’s use of "revised" referred to an application materially different from the first, not simply a complete version of the same application.
- The Council lawfully exercised its discretion under section 70C to decline to determine an application for the same development already subject to an enforcement notice and appeal.
- The Officer’s Report and PAC properly took into account the Inspector’s decision and the Plaintiff’s submissions, and the PAC was entitled to prefer the interpretation that no new substantive application had been made.
- The Council’s policy supports declining to determine applications that would delay enforcement where the merits have already been considered.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Geall v Secretary of State for the Environment, Transport and the Regions [1999] 78 P&CR 264 |
Planning application lapses if required plans are not provided after request; cannot be relied upon to defeat enforcement proceedings. |
The court recognized that the First Application had lapsed and was incapable of being revived, consistent with Geall. |
| R (O'Brien) v South Cambridgeshire District Council [2016] EWHC 36 (Admin) |
Section 70C prevents multiple determinations of planning merits; discretion to decline to determine applications related to enforcement notices. |
The court adopted the principle that an applicant cannot have multiple "bites of the cherry" and that the Council has discretion under section 70C. |
| Ioannou v Secretary of State for Communities and Local Governments [2014] EWCA Civ 1432 |
Inspectors may grant ground (g) appeals to allow time for planning applications for alternative schemes not covered by enforcement notices. |
The court distinguished this case as the Plaintiff sought time to submit an application for the same development, not an alternative scheme, but noted that granting time under ground (g) is consistent with the purpose of section 70C. |
| R (Wingrove) v Stratford-upon-Avon District Council [2015] EWHC 287 (Admin) |
Applicants cannot have multiple opportunities to challenge the same planning merits ("no multiple bites of the cherry"). |
The court cited this to reinforce the purpose of section 70C to prevent abuse of process through repeated applications. |
| R (Zurich Assurance Limited trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) |
Principles on the role and interpretation of officer reports to planning committees. |
The court applied these principles to assess whether the Officer's Report fairly and accurately represented material matters to the PAC. |
| R (Hawkesworth Securities PLC) v Peterborough City Council [2016] EWHC 1870 (Admin) |
Distinction between the role of planning authorities and inspectors in appeals; inspectors adjudicate disputes and give reasons on principal issues. |
The court adopted this analysis to clarify the different roles and standards of reasoning applied by officers and inspectors. |
| R (South Bucks District Council) v Porter (No 2) [2004] UKHL 33 |
Scope of issues and reasons required in planning appeals. |
Referenced in explaining the limited scope of inspectors’ reasons to principal issues in appeals. |
Court's Reasoning and Analysis
The court carefully examined the Inspector's decision on the enforcement appeal, particularly the extension of the compliance period under ground (g) to allow the Plaintiff time to submit a further planning application. The court concluded that the Inspector’s use of the term "revised application" must be understood in context to mean a further application for the same development as the First Application but complete with the requested scale drawings, not a materially different development.
The court found that the Officer's Report to the PAC materially misrepresented this aspect of the Inspector's decision by implying that only a materially different ("revised") application would be acceptable, and that the PAC had little discretion but to decline to determine the Second Application because it was not "revised" in that sense. This misrepresentation misled the PAC about the scope of its discretion under section 70C.
The court acknowledged that while the Council has wide discretion to decline to determine applications under section 70C, this discretion must be exercised in light of all material considerations, including the Inspector's properly construed decision. The failure to pay the fee on the first appeal was an administrative oversight rather than an abuse of process, and the Inspector’s decision to grant additional time was intended to remedy that.
Accordingly, the court held that the PAC's decision was unlawful because it was based on a materially misleading officer report and failed to properly consider the Inspector's decision and the Plaintiff's legitimate interest in submitting a complete application for the same development.
Holding and Implications
The court ALLOWED the Plaintiff's claim and quashed the Council's decision to decline to determine the Second Application.
The Planning Applications Committee must reconsider the matter with a fresh officer’s report and decide whether to exercise its discretion under section 70C to determine the substantive application or decline to do so. The Committee must give proper reasons if it decides to decline determination in the face of the Inspector's decision granting additional time for a complete application.
No enforcement action shall be taken until the Committee has reconsidered the application. This decision does not establish new precedent but directly affects the parties by requiring reconsideration consistent with the Inspector’s properly interpreted decision and the court’s analysis.