Town and country planning – Planning permission – Section 70C of the Town and Country Planning Act 1990 – Claimant seeking retrospective permission for equine dwellings – Defendant local authority exercising discretion not to determine application – Claimant applying for judicial review of decision – Whether defendants giving adequate reasons for decision – Whether defendants taking irrelevant factors into account – Whether defendants failing to correctly interpret and apply planning policy – Application dismissed
The claimant occupied a farm in Bascote Heath which lay in the open countryside to the west of Southam, in Warwickshire. It extended over 3.2 hectares and consisted of permanent pasture. There were a number of farm buildings close to a road from which the farm was accessed. The farm was used for the claimant’s equestrian business.
The defendants served an enforcement notice on the claimant alleging that, without planning permission, she had erected a building to provide two units of residential accommodation contrary to local plan policy. The enforcement notice required residential use to cease and demolition of the building. The claimant did not appeal against the enforcement notice but applied for retrospective planning permission for the building as equestrian dwellings on the grounds that the horses required daily monitoring, care and attention, especially during the breeding season and in case of emergency and for security purposes.
The defendants declined to determine the retrospective application in accordance with section 70C of the Town and Country Planning Act 1990 which provided that a local planning authority in England might decline to determine an application for planning permission for the development of any land if it would involve granting, in relation to the whole or part of the land to which a pre-existing enforcement notice related, planning permission in respect of anything specified in the enforcement notice as constituting a breach of planning control.
The claimant applied for judicial review of the defendants’ exercise of discretion under section 70C on three grounds: (i) inadequate reasons; (ii) taking irrelevant factors into account and not taking into account relevant considerations; and (iii) failing to correctly interpret and apply planning policy.
Held: The application was dismissed.
(1) Section 70C conferred a wide discretionary power on local planning authorities to decline to determine a retrospective planning application for a development, subject to an enforcement notice. The legislative history of section 70C demonstrated 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. There was a legislative steer in favour of exercising the discretion, especially since an enforcement notice could be appealed and the planning merits thereby canvassed. Since delay was the bugbear against which the section was directed, a claimant’s actual motives for using a retrospective planning application to delay matters was clearly a consideration in favour of a decision to invoke section 70C. There might be factors pointing against exercising the discretion in section 70C which for a local planning authority to ignore would open their decision to a public law challenge. However, section 70C was far from being a gateway for applicants to canvass the full planning merits: it was a discretion to decline to determine those merits.
In the present case there was no real evidence that the claimant was badly advised at the time, or unaware of the opportunity to appeal the enforcement notice. In any event, the claimant’s right of appeal and the time limits and grounds of appeal were clearly stated on the enforcement notice itself. The claimant had a long history of engagement with the planning process, including with enforcement action. It was a reasonable inference for the defendants to draw that the application for retrospective planning approval was to delay effective enforcement yet further, in relation to residential units which had been there for over five years without planning approval. The defendants were entitled in coming to conclusions about the claimant’s intention to take into account that she had not sought pre-application advice, and that her expressed wish was that, in light of the retrospective planning application, any prosecution would be “held over”.
(2) In any event, the defendants had not exercised their discretion in a manner challengeable on public law grounds. As to local policies in the development plan, the planning officer’s professional opinion was that the building was a new building for residential purposes and was not the conversion of a previously existing building, that there was other available residential accommodation on the site, and that there was insufficient evidence to demonstrate an essential need for the two unauthorised units for residential accommodation for equestrian workers on site. The description of the development in the retrospective planning application was more specific than in the enforcement notice because it related to a particular type of residential accommodation, ie for workers in the equestrian enterprise, but in the officer’s professional judgment the condition did not materially alter the residential nature of the accommodation. Further, the decision letter and the accompanying report considered whether there had been any changes to policy since the enforcement notice was issued, noted that the defendants gave the National Planning Policy Framework (NPPF) greater weight due to a lack of a demonstrable five-year housing supply, but came to the conclusion, as a matter of planning judgment, that the breach did not constitute a sustainable form of development. That was a proper exercise of planning judgment which was unimpeachable.
(3) The claimant’s criticisms about the defendants’ reasons were unarguable. She had the benefit not only of the decision letter but of the officer’s report. As with other planning decisions, these were addressed to a knowledgeable readership. Given their focus, the reasons challenge constituted in fact an attack on planning judgment: R (Trashorfield Limited) v Bristol City Council [2014] EWHC 757 (Admin); [2014] EWHC 757 (Admin) considered.
Celina Colquhoun (instructed by Jacqui Fulton Equine Law, of Tamworth) appeared for the claimant; Paul Cairnes and Annabel Graham Paul (instructed by The Wilkes Partnership LLP, of Birmingham) appeared for the defendants.
Eileen O’Grady, barrister
Click here to download the transcript of Wingrove v Stratford on Avon District Council
