High Court refuses permission for challenge to decision not to take enforcement action against breaches of planning control

Timothy Corner KC, sitting as a deputy High Court judge, heard that the claimant objected to his neighbour’s works to the next door house.

The claimant challenged the council’s decision not to take enforcement action against breaches of planning control by the neighbour (the interested party), which included construction of a garage/store that differed from the approved plans by being closer than allowed to the claimant’s property, and higher than permitted.

The interested party made two applications under s.73 of the Town and Country Planning Act 1990 for planning permission for development without compliance with conditions previously imposed.

The first of these concerned changes to the design and materials in the front and rear extensions and was approved.

West Oxfordshire though rejected the second concerning the garage, but the neighbour successfully appealed to a planning inspector.

Between April 2025 and February 2026, there was correspondence between the claimant and the council in which he urged it to take enforcement action.

The council refused, stating in a letter: “It is our officers' view that the garage and the extensions as built are not harmful in planning terms.

“Moreover, it is not the purpose of planning enforcement to punish alleged contraveners; the council is impartial and will not become involved in neighbour disputes except where there is a formal legislative adjudication process (such as the high hedges regime).

“Any intention on the part of your client's neighbour (even if it could be demonstrated) is irrelevant to the question of whether there is planning harm….”.

Mr Corner said he first had to decide whether the claimant had brought the case out of time.

The council submitted it made the decision concerned on 29 August 2025 and not on 12 February 2026, as the claimant claimed.

It said its February letter made clear that it simply restated the August decision and was drafted so the claimant could make a complaint to the Local Government Ombudsman if desired, not as indicating any further decision had been made.

The claimant argued the February letter was a new decision because neither a surveyor's report, which he had commissioned, nor the points regarding intentional unauthorised development had previously been considered by the council.

Therefore they constituted material changes in circumstance from the previous correspondence.

Mr Corner said: “The fact that that the surveyor's report was sent to the council after the council's decision of 29 August 2025 did not make the council's letter of 12 February 2026 a fresh decision.

“If that were so, a person disappointed by an authority's failure to take enforcement action could continually send new letters making fresh points, with the result that time for challenging the authority's failure to take enforcement action would not begin.

“This would circumvent the time limit for bringing a claim for judicial review, thus subverting the certainty which…is an essential purpose of that time limit.”

He added the council took relevant decisions on 17 June 2025, and 29 August 2025, and “in either case, this claim is out of time and in the absence of an application for an extension of time or any reason given by the claimant why time should be extended, I cannot grant permission because the claim is well out of time.”

Mr Corner did though say he would consider the grounds put.

These were failure to take account of material considerations, unreasoned inconsistency in decision-making and irrationality.

The deputy judge said the council had concluded there was no unacceptable harm to amenity and officers, who had the delegated powers, considered that in this situation no enforcement action should be taken.

“In those circumstances, applying section 31 (3C) and (3D) of the Senior Courts Act, I would have to refuse to grant permission to apply for judicial review on ground 1 even if the council's letter of 12 February 2026 was a fresh decision,” Mr Corner said.

He said ground 2 was unarguable as “I see no reason why, even if the council's letter of 12 February 2026 was a fresh decision, the council needed to repeat the reasoning contained in its previous letters”.

Mr Corner said the irrationality challenge “does not come anywhere near establishing irrationality in the planning judgement in the present case”.

Mark Smulian