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Banghard, R (on the application of) v Bedford Borough Council
Factual and Procedural Background
This judicial review concerns the decision of the Defendant ("the Council") made on 22 August 2016 to decline to determine a planning application pursuant to section 70C of the Town and Country Planning Act 1990 ("the TCPA"). The application, dated 22 July 2016, sought permission for alterations and use of a building for storage ("Class B8").
Previously, in 2010, the Council had granted planning permission for the erection of an outbuilding for vehicle storage. The Claimant constructed a building on the same footprint but the Council considered it was being used as a dwelling house and materially different from the permitted structure.
On 2 July 2015, the Council issued an enforcement notice ("EN") alleging breach of planning control by the unauthorised erection of a timber-clad self-contained dwelling house, requiring cessation of residential use, demolition of the building, and removal of materials.
The Claimant appealed the EN on multiple grounds. The Inspector found the 2010 permission had not been implemented and the building was constructed as a dwelling house. The ground (a) appeal for planning permission was dismissed due to lack of policy support for residential or holiday use. The ground (f) appeal to vary the EN was rejected as the 2010 permission was expired and the building differed substantially from the approved plans.
The Council declined to determine two subsequent planning applications for the site under s.70C, reasoning that approval would involve granting permission in respect of matters specified in the EN. The Claimant then submitted the 2016 application for storage use, which was also declined under s.70C. This decision is the subject of the present judicial review.
Legal Issues Presented
- Whether the Council had the power under section 70C of the TCPA to decline to determine the 2016 planning application.
- If the power existed, whether the Council exercised that power rationally on the facts of this case.
Arguments of the Parties
Appellant's Arguments
- Section 70C was not engaged because the planning application sought permission for a storage building, which is entirely different from the dwelling house specified in the enforcement notice.
- The Inspector's findings that the building was constructed as a dwelling house and the Council's inconsistent positions at the inquiry undermine the legitimacy of the Council's refusal to determine the storage application.
- The fact that some parts of the building are retained and the application footprint matches the EN site is irrelevant to whether s.70C applies.
- It is irrational for the Council to refuse to determine the application under s.70C because it denies the Claimant any opportunity to have the planning merits of the storage use considered.
- The officer’s report stating the application would likely be refused is irrelevant to the legal question of whether s.70C applies.
Respondent's Arguments
- Section 70C confers broad discretion to decline to determine an application if it involves granting permission in respect of the whole or any part of matters specified in an enforcement notice.
- Determining whether s.70C applies involves planning judgment, which is for the Council to exercise, not the court.
- The statutory purpose of s.70C is to prevent delay in enforcement action caused by retrospective applications seeking permission for the same matters.
- The building applied for is on the same footprint and substantially the same as the building enforced against, justifying reliance on s.70C.
- The Claimant was obliged to obey the enforcement notice and cannot claim unfairness while failing to do so; the Claimant is the author of his own misfortune for erecting a dwelling instead of a storage building under the 2010 permission.
- While some unfairness may arise, it must be balanced against the public interest in effective enforcement.
- The Council’s decision was supported by the Inspector’s findings at the enforcement appeal and the Claimant’s conduct.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Wingrove v Stratford on Avon District Council [2015] EWHC 287 (Admin) | Section 70C is intended to prevent multiple appeals on the same planning merits and to avoid delay in enforcement by declining to determine retrospective applications overlapping with enforcement notices. | The court relied on the judgment to interpret the purpose of s.70C, emphasizing the prevention of "multiple bites of the cherry" and that discretion must be exercised rationally. |
| R (Seventeen de Vere Gardens Management Limited) v London Borough of Kensington and Chelsea [2016] EWHC 2869 | Clarification of the purpose and correct approach to s.70C, including that planning authorities have discretion to decline determination where the merits have already been considered. | The court cited this case to support the view that s.70C discretion involves planning judgment and to confirm the statutory purpose of preventing multiple considerations of the same merits. |
| R (O'Brien) v South Cambridgeshire District Council [2016] EWHC 36 (Admin) | Section 70C aims to ensure only one determination of planning merits, either via appeal against enforcement notice or planning application, but not both. | The court adopted the principles from this judgment to confirm that s.70C is not a gateway to reconsider merits but a tool to prevent abuse of process. |
| Ioannou v Secretary of State for Communities and Local Government [2014] EWCA Civ 1432 | Inspectors may allow appeals under ground (g) to permit time for alternative planning applications outside the enforcement notice's scope, without conflicting with s.70C. | The court referred to this case to explain that allowing time for a planning application unrelated to the enforcement breach is consistent with the statutory scheme. |
| R (Zurich Assurance) v North Lincolnshire Council [2012] EWHC 3708 (Admin) | Principles governing the consideration of officer reports and delegated decisions in planning matters. | The court applied these principles to evaluate the reasonableness and sufficiency of the Council’s officer report underpinning the s.70C decision. |
Court's Reasoning and Analysis
The court first considered whether the Council had jurisdiction under s.70C to decline determination of the 2016 application. It recognized that this involves planning judgment about whether the application seeks permission for the whole or any part of the matters specified in the enforcement notice.
The statutory purpose of s.70C is to prevent applicants from having multiple opportunities to argue the same planning merits via separate appeals, thereby avoiding delay in enforcement.
Here, the enforcement notice specified the unauthorised erection of a dwelling house, whereas the application sought permission for a storage building. The Inspector on the enforcement appeal had no jurisdiction to consider the storage use, indicating it was not part of the breach.
The court found that although some physical elements and footprint overlapped, this was insufficient to engage s.70C because the uses and building forms were materially different. Therefore, the Council lacked jurisdiction to decline determination under s.70C.
Regarding rationality, even if jurisdiction existed, the Council’s decision was irrational because it denied the Claimant any chance to have the planning merits of the storage application considered. The officer’s report’s prediction of refusal was not determinative of the legal question.
The court emphasized that s.70C discretion must be exercised fairly and not simply for expediency or cost-saving reasons. The Claimant’s prior conduct did not justify denial of a planning application determination in this case.
Holding and Implications
The court held that the Council had no jurisdiction under section 70C to decline to determine the planning application for storage use, as the application did not involve granting permission for any part of the matters specified in the enforcement notice (which related solely to a dwelling house).
Furthermore, the Council’s exercise of discretion under s.70C was irrational and unlawful because it deprived the Claimant of the opportunity to have the planning merits of the storage application considered.
The direct effect is that the Council’s decision to refuse to determine the application under s.70C is quashed, and the Claimant is entitled to have the application properly considered.
No new legal precedent was established beyond the application and clarification of existing principles concerning s.70C’s scope and use.
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