A local planning authority’s power to decline to determine a subsequent similar planning application
Section 70A of the Town and Country Planning Act 1990 gives a local planning authority (“LPA”) a discretion to decline to determine a subsequent similar planning application in three sets of circumstances, where it considers that there has been no change in the development plan and any other material considerations. “Similar”, in this context, means where the LPA thinks that the development, and the land to which the applications relate, are the same or substantially the same. One such set of circumstances is where, in the period of two years ending with the date on which the subsequent planning application is received, the Secretary of State has dismissed an appeal against the refusal of a similar application.
Circular 08/2005 sets out government guidance on the exercise of this discretion. In particular, paragraph 8 states: “[LPAs] should use the power to decline to determine repeat applications only where they believe that the applicant is trying to wear down opposition by submitting repeated applications. If an application has been revised in a genuine attempt to take account of objections to an earlier proposal, the [LPA] should determine it”. This guidance is a material consideration that should be taken into account by a LPA when deciding whether or not to exercise this power. It may depart from such guidance, but it must give its reasons for doing so.
Section 70A of the Town and Country Planning Act 1990 gives a local planning authority (“LPA”) a discretion to decline to determine a subsequent similar planning application in three sets of circumstances, where it considers that there has been no change in the development plan and any other material considerations. “Similar”, in this context, means where the LPA thinks that the development, and the land to which the applications relate, are the same or substantially the same. One such set of circumstances is where, in the period of two years ending with the date on which the subsequent planning application is received, the Secretary of State has dismissed an appeal against the refusal of a similar application.
Circular 08/2005 sets out government guidance on the exercise of this discretion. In particular, paragraph 8 states: “[LPAs] should use the power to decline to determine repeat applications only where they believe that the applicant is trying to wear down opposition by submitting repeated applications. If an application has been revised in a genuine attempt to take account of objections to an earlier proposal, the [LPA] should determine it”. This guidance is a material consideration that should be taken into account by a LPA when deciding whether or not to exercise this power. It may depart from such guidance, but it must give its reasons for doing so.
No appeal lies to the Secretary of State against a decision by a LPA to decline to determine a subsequent planning application in accordance with section 70A. However, such a decision may be challenged by means of a claim for judicial review. The court will interfere if it can be shown that the LPA took into account irrelevant considerations, or failed to have regard to a material consideration or its decision was perverse.
In R (on the application of Skillcrown Homes Limited) v Dartford Borough Council [2014] EWHC 365 (Admin) the court concluded that the LPA, in deciding to exercise its discretion under section 70A, failed to have regard to material passages in Circular 08/2005, including paragraph 8. In that particular respect, it had failed to have regard to the underlying purpose of the statutory discretion conferred by Parliament in section 70A, namely that it should only be used where an applicant is attempting to wear down local opposition through the use of repeated applications. Accordingly, it quashed the LPA’s decision and remitted it for reconsideration in the light of the court’s judgment.
John Martin
