Council defeats Court of Appeal challenge over refusal to determine planning permission

This concerned powers in section 70C(1) of the Town and Country Planning Act 1990 and the Secretary of State for Housing, Communities and Local Government was made an intervener due to issues raised about its proper construction.

Lord Justice Dove said a Mr Moran appealed against Kerr J's dismissal last year of a claim for judicial review of Medway’s refusal to determine his planning application.

In November 2020, Mr Moran became the registered owner of ‘Plot C’ near Rainham on which in May 2017 Medway had served an enforcement notice on the then owners identifying a number of breaches of planning control, which marked the start of a convoluted chain of disputes over the site’s use.

Medway in August 2018 had a committal order made against those then occupying the site following the earlier grant of an injunction.

Later that month, relying on section 70C of the 1990 Act, Medway declined to determine a further application.

By the spring of 2020 building work started to change the site to one for residential caravans and Medway later required compliance with an enforcement notice, and in February 2022 took direct action and cleared the site.

After a series of disputes, Medway relied on section 70C - for a seventh time - in March 2022, when an application was made for a single-bedroom house.

In September 2023 Mr Moran applied for the siting of caravans and mobile homes together with the construction of four day rooms and a stable building and said there was an acknowledged need for an additional 34 pitches for Gypsies and Travellers in the area in 2017-35.

Mr Moran said the application presented a detailed and carefully thought-through application providing a strong case in support of the development.

Medway’s chief planning officer, though, concluded that the criteria for the engagement of section 70C were again satisfied as the application overlapped with earlier breaches.

Mr Moran argued that use of section 70C was inconsistent with the object of the legislation as its purpose is to defeat attempts to delay enforcement action by avoiding having two separate considerations of the underlying merits of the breach of planning control comprised in an enforcement notice.

He argued that section 70C could not therefore apply here, as any breach of planning control has been remedied by the council in clearing the site.

Medway responded that the legal mischief with which section 70C is concerned is the existence of an opportunity to have two separate considerations of the underlying merits of a breach of planning control and while preventing a delay to enforcement proceedings may be a consequence of the power it is not the sole purpose of the provision. The Secretary of State supported this argument.

Mr Moran’s second ground was that the section could not apply to an application for prospective development and that it only applies to retrospective cases.

Medway and the Secretary of State argued instead that the language of section 70C of the 1990 Act “means what it says. The words are clear and permit a local planning authority to decline to determine an application for planning permission for unauthorised development if it would involve granting permission in respect of development which a pre-existing enforcement notice which is in force has enforced against as constituting a breach of planning control”.

Dove LJ said: "!In my view given the language used in section 70C of the 1990 Act its purpose is clear. It is designed to enable a local planning authority to decline to determine an application for planning permission in respect of either the whole or part of a breach of planning control at a parcel of land which has a pre-existing enforcement notice issued in respect of that breach of planning control.

“It prevents a duplication of the consideration of the planning merits of the breach of planning control which is the subject of the enforcement action unless the local planning authority are prepared for that to be undertaken.

“The potential for the occupier of the land subject to the enforcement notice to insist upon more than one determination of the planning merits of the breach of planning control is in my view clearly the mischief which section 70C is aimed at and prevention of that is its statutory purpose.”

He said this meant Mr Moran’s grounds 1 and 2 must be dismissed  and “I would have reached this conclusion simply on the basis of the proper construction of the section itself and as a result of that construction the clear purpose and objective which it seeks to fulfil”.

He said the officer's report took account of effective enforcement action in relation to this case, in that Medway had twice taken direct action to remedy breaches of planning control.

Dove LJ also rejected Mr Moran’s contention that Medway failed properly to take account of the need for Gypsy and Traveller sites.

“The report directly addressed the shortfall of sites for Gypsy and Traveller accommodation and took that into account in assessing the acceptability of the site,” the judge said.

He rejected Mr Moran’s case and Lord Justice Arnold and Lord Justice Peter Jackson both agreed.

Mark Smulian