Local planning authorities were given a power under the Localism Act 2011 (“the 2011 Act”) to decline to determine planning applications made after enforcement action has started. In R (O’Brien) v South Cambridgeshire District Council [2016] EWHC 36 (Admin) the High Court confirmed that the power applies where enforcement began before the Localism Act changes came into effect but the retrospective planning application was made later.
Section 70C of the Town and Country Planning Act 1990 (“the 1990 Act”) came into force on 6 April 2012, subject to transitional measures in article 13 of the Localism Act 2011 (Commencement No. 4 and Transitional, Transitory and Saving Provisions) Order 2012. It allows authorities to “decline to determine an application for planning permission for the 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 changes were intended to stop repeat applications forestalling enforcement action while the merits of each application are considered. The saving provisions in article 13 of the order disapply section 70C where enforcement proceedings began before 6 April 2012 and a planning application was made afterwards (or a “ground (a)” appeal against the enforcement notice – that permission should be granted on its merits, under Section 174(2)(a) of the 1990 Act – was made).
In O’Brien, the authority enforced against Ms O’Brien in relation to the surfacing, siting of caravans and residential use of the land in 2005. She appealed, but then withdrew (before 6 April 2012). Meanwhile, the caravans remained on site in breach of the enforcement notice. The authority then declined an application made in April 2015 to regularise the position, as a temporary permission, relying on Section 70C. The claimant’s case, in seeking judicial review of that decision, was that the transitional provisions – limiting the application of S70C – applied where enforcement had begun before 6 April 2012 regardless of the date on which the application for permission was made (or whether the appeal was withdrawn). She also claimed that article 13 of the order was a disproportionate interference with Article 8 of the European Convention on Human Rights.
Lewis J held that both the enforcement proceedings and the application for permission must have taken place before 6 April 2012 to fall within the Article 13 carve out. He also rejected the alternative argument on the basis that any ground (a) appeal had to have been on foot at 6 April 2012 (rather than having been made but withdrawn). The interference with Article 8 rights under the order was held to be proportionate and in line with parliament’s intentions, in the sense that applicants were not entitled to insist on more tan one determination of the underlying planning merits.
The case is a reminder that when facing enforcement proceedings, a ground (a) appeal should be pursued where appropriate to ensure that there is at least one bite of the cherry. It is also worth bearing in mind previous authority confirming the broad discretion for councils when deciding whether to rely on Section 70C, including consideration of applicants’ motives (R (Wingrove) v Stratford-on-Avon District Council [2015] EWHC 287 (Admin)).
Roy Pinnock is a partner in the planning and public law team at Dentons
