Factual and Procedural Background
The Plaintiff, a limited company referred to as Company A, owns land and a Grade II listed cottage on the banks of the River Thames in The City, which has been the subject of unauthorised development followed by a series of retrospective planning applications and enforcement actions by the Defendant, a local planning authority. The contested application for planning permission, made on 7 August 2017, sought approval for the creation of a balcony linking a garage and a boathouse on Company A's land.
Previously, Company A constructed a new building comprising a boathouse, garage, and a linking structure without full planning permission. An enforcement notice was issued by the Defendant on 22 June 2016, requiring demolition of the entire structure. On appeal, the enforcement notice was varied to allow modification by demolishing only the linking structure, but the notice was otherwise upheld. Company A did not comply with the enforcement notice and instead submitted the application for the balcony, which the Defendant declined to determine on 27 September 2017, invoking section 70C of the Town and Country Planning Act 1990. Company A challenged this refusal by way of judicial review.
Permission to bring the judicial review was granted in December 2017. The Defendant resists the claim, relying on the discretion under section 70C to decline to determine planning applications overlapping with enforcement notices.
Legal Issues Presented
- Whether the discretion under section 70C(1) of the Town and Country Planning Act 1990 is engaged on the facts of the case.
- If engaged, whether the Defendant lawfully exercised its discretion in refusing to determine the Plaintiff's application for planning permission.
Arguments of the Parties
Appellant's Arguments
- The proposed balcony differs substantively from the breach specified in the enforcement notice, including a significant reduction in roof surface area and removal of enclosing walls, resulting in a more open structure.
- The balcony proposal was not considered by the planning inspector during the enforcement appeal, so the Defendant's reliance on section 70C to refuse determination was unlawful.
- The focus should be on whether the balcony and the original storeroom raise distinct planning considerations rather than strict physical overlap.
- Any misunderstanding by the Defendant's planning officer regarding application details does not affect the lawfulness of the refusal.
Respondent's Arguments
- The discretion under section 70C is broad and triggered by any non-de minimis overlap between the application and matters specified in the enforcement notice.
- The enforcement notice covered the entire building, including the linking structure; the application sought permission for part of that same structure, thus engaging section 70C.
- The Plaintiff had the opportunity to raise the balcony proposal during the enforcement appeal under ground (f) but did not do so.
- Allowing the application would undermine the legislative purpose of preventing delay in enforcement through repeated applications.
- The question of overlap and discretion involves planning judgment, which the court should not readily overturn.
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) |
Interpretation of section 70C and its purpose to prevent delay in enforcement by retrospective applications. |
Confirmed that section 70C confers a wide discretion to local planning authorities to prevent abuse of the appeals process and delay. |
| O'Brien v South Cambridgeshire District Council [2016] EWHC 36 (Admin) |
Purpose of legislative provisions to ensure a single determination of planning merits for unauthorised developments. |
Supported the statutory aim that applicants cannot have multiple opportunities to challenge enforcement through repeated applications. |
| R (Banghard) v Bedford Borough Council [2017] EWHC 2391 (Admin) |
Scope of section 70C and the limits on declining to determine applications when the planning merits have not been previously considered. |
Distinguished on facts; confirmed that section 70C applies when the application relates to matters specified in the enforcement notice, even if not identical. |
| R (Seventeen de Vere Gardens Management Ltd) v London Borough of Kensington & Chelsea [2016] EWHC 2869 (Admin) |
Examples of circumstances where discretion under section 70C might not be exercised (e.g., changes in development plan or material considerations). |
Used to illustrate that discretion requires planning judgment and may be influenced by changed circumstances. |
| R (Smith) v Basildon Borough Council [2017] EWHC 2696 (Admin) |
Consideration of when section 70C applies, especially regarding opportunities to appeal enforcement notices. |
Supported the view that availability of appeal opportunities to predecessors in title is relevant to the application of section 70C. |
Court's Reasoning and Analysis
The court began by identifying the statutory test under section 70C(1), which permits a local planning authority to decline to determine an application if granting permission would involve granting permission for any part of the matters specified in a pre-existing enforcement notice. The focus must be on the matters constituting the breach as stated in the enforcement notice, not on the remedial steps required by the notice or any modifications made by an inspector.
The court found that the enforcement notice specified the erection of a particular structure comprising the garage, boathouse, and linking building. The Plaintiff's application for a balcony linked to this structure, retaining parts of the original building such as the ground floor slab and lavatory cubicle, thus overlapping with the matters specified in the enforcement notice.
It was accepted that the discretion to decline to determine involves planning judgment but emphasized that the initial question of whether section 70C is engaged is an objective comparison between the enforcement notice and the application. The court rejected the Plaintiff's argument that substantive differences between the balcony and the original breach prevented the application of section 70C, holding that the statutory language requires only some overlap, not complete coincidence.
The court also considered the policy underlying section 70C: to prevent tactical abuse of the planning and enforcement system by repeated applications or appeals. The Plaintiff had an opportunity to raise the balcony proposal during the enforcement appeal but did not do so, and the court held that this undermined the Plaintiff's position.
Finally, the court found that the Defendant's exercise of discretion was lawful and reasonable, particularly given the planning inspector's conclusion that additional development above that already approved was unjustifiable and the potential impact on the green belt's openness.
Holding and Implications
The court DISMISSED the application for judicial review.
The decision confirms that section 70C(1) can be invoked when a retrospective application overlaps in any non-trivial way with matters specified in a pre-existing enforcement notice, regardless of differences in the proposed development. The ruling underscores the importance of exhausting appeal opportunities against enforcement notices and supports the discretion of local planning authorities to refuse determination of applications aimed at delaying enforcement. No new precedent was established beyond the application of existing principles to the facts of this case.