Court rules on power to decline to determine retrospective planning applications

The High Court has issued a ruling that clarifies the scope of a local authority’s power to decline to determine a retrospective planning application when an enforcement notice is in place.

The case of Wingrove v Stratford on Avon District Council [2015] EWHC 287 (Admin) was the first time the ambit of s. 70C of the Town and Country Planning Act 1990 had been considered.

Mr Justice Cranston concluded that s. 70C conferred a “wide discretionary power” on local planning authorities.

“The legislative history of section 70C demonstrates that Parliament's intention was to provide a tool to local planning authorities to prevent retrospective planning applications being used to delay enforcement action being taken against a development,” the judge said.

“It seems to me that there is a legislative steer in favour of exercising the discretion, especially since an enforcement notice can be appealed and the planning merits thereby canvassed. Since delay is the bugbear against which the section is directed, a claimant's actual motives to use a retrospective planning application to delay matters is clearly a consideration in favour of a decision to invoke section 70C.”

Mr Justice Cranston found that in the circumstances of the claimant’s (Mrs Wingrove’s) case, Stratford were entitled to make reasonable inferences as to her motive for submitting the retrospective application rather than appealing the enforcement notice.

The judge said accepting the claimant’s case on its face regarding bad advice, ignorance and innocent motives, he simply could not conceive that the council exercised its discretion in a manner challengeable on public law grounds.

He added that the exercise of planning judgment by the officer had been “unimpeachable”, and that the claimant’s criticisms about the council’s reasons were unarguable.

Annabel Graham Paul, a barrister at Francis Taylor Building who acted for the successful local planning authority, said: “The judgment should give local authorities greater confidence in exercising the power under s. 70C and provide those advising recipients of enforcement notices with a clear steer as to the circumstances when the only option for having the planning merits considered is an appeal, rather than a further application.”

Graham Paul was led in the substantive hearing by Paul Cairnes of No5 Chambers. She was instructed by Leenamari Aantaa-Collier of The Wilkes Partnership LLP.