Declining to determine planning applications

The High Court has revisited the limits of a local planning authority’s powers to decline to determine planning applications where an existing enforcement notice is in place. Annabel Graham Paul analyses the ruling.

In Deep Banghard v Bedford Borough Council [2017] EWHC 2391 (Admin), Ms Nathalie Lieven QC, sitting as a Deputy High Court Judge, quashed the council’s refusal to determine Mr Banghard’s planning application on the grounds that s. 70C of the Town and Country Planning Act 1970 was not engaged and, in any event, the council’s decision was irrational.

Mr Banghard had been granted planning permission for a storage building on his land. He had built a building on the correct footprint but had used it as a dwellinghouse from the outset rather than as a storage building. The council had enforced against the dwellinghouse.

Mr Banghard then applied for planning permission to retain certain parts of the building which the enforcement notice required to be demolished, but to use it for storage and not residential. The council had declined to determine his application on the basis that the application was in respect of “part of the matters specified in the enforcement notice as constituting the breach of planning control” in reliance on s. 70C.

Ms Lieven QC reviewed the small number of cases which have considered s. 70C, in particular Wingrove v Stratford on Avon District Council [2015] EWHC 287. She held that whether or not an application involves granting permission for the whole or part of the matters specified in an enforcement notice is a matter of planning judgment. However, it is important to have closely in mind the purpose of s. 70C and ensure that it is not used in a way that is clearly unfair to an applicant for permission and is outside the statutory purpose.

S. 70C was designed to ensure that applicants for planning permission do not have ‘multiple bites of the cherry’. However, she agreed that they must be able to have ‘one bite of the cherry’. In this case, Mr Banghard had not been able to have the planning merits of a storage building determined on appeal against an enforcement notice alleging the construction of a dwellinghouse. Therefore, the LPA had no jurisdiction to decline to determine Mr Banghard’s application.

She further found that, even if the council had had technical jurisdiction, their decision was unreasonable in the circumstances since the end result was to deny the claimant his right to have his application determined even once.

The judgment is important to LPAs and practitioners in illustrating the limits to the “wide discretion” to applying s. 70C set out in Wingrove.

Annabel Graham Paul is a barrister at Francis Taylor Building. She acted for Mr Banghard instructed by Muhammed Guffar of Bond Adams. She also successfully acted – on the other side – for the council in Wingrove.