Moran, R (On the Application Of) v Medway Council

Factual and Procedural Background

The Appellant acquired the relevant parcel of land on 10 November 2020 (site described in the opinion as Plot C). Company A is the local planning authority. An enforcement notice was served on 3 May 2017 identifying breaches: (1) unauthorised change of use to residential and the stationing of caravans/mobile homes; and (2) operational development including hard surfacing, storage/breaking of vehicles and stockpiling of hardcore/aggregate. The notice required the site to be cleared within six months. Various occupants sought appeals or resisted enforcement; the council exercised direct action on multiple occasions (including in 2018 and February 2022) to clear the site.

Multiple planning applications relating to the site were made between 2018 and 2023. Company A invoked section 70C(1) of the Town and Country Planning Act 1990 on several occasions to decline to determine retrospective or overlapping applications. The application under challenge in these proceedings was submitted on 8 September 2023 and sought change of use to residential use with caravans/mobile homes, four day rooms and a stable building, supported by various technical reports. Company A's officers prepared a report concluding that the application overlapped with matters specified in the pre-existing enforcement notice and that section 70C(1) applied; the recommendation to decline to determine under section 70C was accepted by the chief planning officer (referred to in the opinion as Mr Harris). Judicial review of that decision was refused at first instance by Judge Kerr (order dated 20 February 2025). The Appellant appealed and the Court of Appeal (Judges Dove, Arnold and Peter Jackson in the opinion) dismissed the appeal on 17 April 2026.

Legal Issues Presented

1. What is the proper construction and statutory purpose of section 70C(1) of the Town and Country Planning Act 1990 (the power to decline to determine "retrospective" applications)?
2. Whether section 70C(1) applies to prospective applications or only to applications strictly for development already carried out (i.e. whether the word "retrospective" in the heading limits the section's scope).
3. Whether Company A acted unlawfully in exercising its discretion under section 70C(1) by failing to take into account mandatory material considerations (including specific local policy H13, the assessed need for Gypsy and Traveller sites, flood zone information and absence of statutory consultee objections).
4. Whether Company A applied section 70C(1) in a manner inconsistent with the statutory purpose such that the decision was amenable to challenge under Padfield principles.

Arguments of the Parties

Appellant's Arguments

• Section 70C(1)'s statutory purpose is to prevent delaying tactics in enforcement cases; it should be construed narrowly and does not apply where the planning application is prospective or where the site has been cleared by enforcement/direct action.
• The respondent's reliance on O'Brien's broader formulation of purpose was incorrect; the primary mischief is retrospective applications used to delay enforcement, not any duplication of merits consideration.
• Company A failed to take mandatory considerations into account when exercising its discretion under section 70C(1): it did not properly consider policy H13, the local shortfall of Gypsy/Traveller sites, it erred on flood zone classification (recording flood zone 3 when the site was in flood zone 1), and it omitted to weigh the lack of objections from statutory consultees.

Respondent's Arguments

• The language of section 70C(1) is plain and permits declining to determine applications that would involve granting permission for any part of matters specified in a pre-existing enforcement notice; no temporal or retrospective-only limitation in the operative text restricts that application.
• The statutory purpose is to prevent an applicant insisting on more than one determination of the underlying planning merits where there is a pre-existing enforcement notice; prevention of delay in enforcement is a consequence but not the sole purpose.
• The officer report undertook the level of merits assessment necessary for exercising the section 70C discretion; the matters identified by the Appellant were not so obviously material as to be mandatory omissions that would invalidate the decision.

Intervener's Arguments

• The intervener supported the respondent's construction, adopting the approach in O'Brien: section 70C(1) plainly includes prospective applications and the reference to "retrospective" in the heading does not restrict the statutory wording.
• Section 123 of the Localism Act 2011 and related provisions demonstrate a legislative intention to avoid multiple determinations of the same planning merits where enforcement notices are in play.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began with established principles of statutory interpretation (Spath Holme, Padfield) and examined the language of section 70C(1) in its statutory context. The court concluded that the operative text of section 70C(1) plainly permits a local planning authority to decline to determine an application for planning permission where granting permission would involve permitting, in whole or in part, matters specified in a pre-existing enforcement notice. The heading term "retrospective" does not limit the operative words of the section and is not defined by the Act; therefore the section can apply to prospective applications that would nonetheless involve granting permission for matters identified in the enforcement notice.

The court identified the statutory mischief as the risk of an applicant obtaining more than one consideration of the same underlying planning merits (i.e., "multiple bites at the cherry"). It held that preventing duplicate consideration is the primary purpose of section 70C, with prevention of enforcement delay a consequential benefit but not the sole purpose. The court reviewed first-instance authorities (Wingrove, O'Brien, Seventeen De Vere Gardens, Banghard, Chesterton) and resolved tensions by applying O'Brien's analysis: section 70C is engaged where there is overlap between the application and matters specified in the enforcement notice, and the decision to decline to determine then falls within a broad planning discretion.

On the question of whether mandatory considerations were omitted, the court treated the officer report as having included the relevant merits appraisal necessary to exercise the section 70C discretion. The report identified overlap with the enforcement notice, considered planning merits and policy (including recognition of Gypsy/Traveller need), and concluded there were strong planning objections (landscape/character harm, proximity to designated sites, flood risk). An error in one factual point (flood zone classification) was found not to be so material as to vitiate the overall discretionary decision given the multiple other reasons advanced. The court also emphasised the high threshold for challenging planning judgments as irrational.

Holding and Implications

APPEAL DISMISSED.

Holding: The Court of Appeal dismissed the appeal and upheld Judge Kerr's decision that Company A lawfully exercised its discretion under section 70C(1) of the Town and Country Planning Act 1990. The court held that section 70C(1) applies where an application would involve granting permission for any part of the matters specified in a pre-existing enforcement notice, that "retrospective" in the heading does not restrict the operative text, and that the respondent had taken the necessary considerations into account when exercising the discretion.

Implications: The direct effect is that the Appellant's judicial review challenge failed and the decision of the first-instance judge was affirmed. The opinion frames section 70C(1) as a power to prevent duplicate consideration of underlying planning merits where a pre-existing enforcement notice exists; the decision was reached by applying and reconciling earlier authorities rather than purporting to depart from them.