A local planning authority (“LPA”) enjoys a general power under section 73A of the Town and Country Planning Act 1990 (“the 1990 Act”) to grant planning permission with retrospective effect. In some cases, this may be the appropriate way to regularise the situation where an owner or occupier of land has carried out unauthorised development.
However, where in that event the LPA has already issued an enforcement notice, other considerations come into play. Section 70C of the 1990 Act allows a LPA to decline to determine an application for planning permission for development of any land, if granting planning permission for the development would involve granting – whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates – planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.
The only means of ensuring that the planning merits are canvassed lies in an appeal against the enforcement notice under section 174 of the 1990 Act to the secretary of state. (Such an appeal also covers legality and – separately – can be said to “stop the enforcement process in its tracks”).
In R (on the application of Wingrove) v Stratford-on-Avon District Council [2015] EWHC 287 (Admin), the claimant had built two units of residential accommodation on her farm without planning permission. The LPA issued an enforcement notice requiring their demolition. The claimant did not appeal against the enforcement notice, but submitted an application for retrospective planning permission. The LPA exercised its discretion under section 70C of the 1990 Act, and declined to determine it. In so doing, it furnished the claimant with its reasons, both in its decision letter and in an accompanying officer’s report. The claimant applied to quash the LPA’s decision, contending that on a number of grounds it was flawed.
The court dismissed the application, stressing that parliament’s intention in enacting section 70C was to provide a tool to LPAs to prevent retrospective planning applications being used to delay enforcement action taken against unauthorised development. The judge suggested that there was a “legislative steer” in favour of exercising the discretion, especially as an appeal against an enforcement notice results in the planning merits being canvassed. Furthermore, the claimant’s motive for using a retrospective planning application was itself a consideration in favour of the LPA’s decision to invoke section 70C.
John Martin is a planning law consultant
