The owner of a riverside house by Henley Bridge in Henley-on-Thames today lost a high court dispute over planning permission.
The case tests the circumstances in which a planning authority can refuse to consider planning permission if it contradicts an existing enforcement notice.
It centres on Bird Place Cottage in Henley, a riverside property whose owner, in 2016, built a linked boathouse and garage in the grounds.
The 2016 development had a complex planning history and the owner found himself, at one point, the subject of three enforcement notices.
In August last year, the owner applied for planning permission for the linking building. However, the planning authority, citing section 70C of the Town and County Planning Act 1990, refused to consider the application.
The act says an authority may do this if to consider the application would involve granting planning permission for something that has already been stated to be a breach on an enforcement notice.
At a hearing last month, lawyers for the owner argued that the planning application was “sufficiently different” from the terms in the enforcement notice.
However, in his judgment today Judge Martin Rodger QC disagreed. Although the case required an “element of planning judgement”, paragraph 70 of the act didn’t require a consideration of differences, he said; it required a consideration of similarities.
“The fact that granting the application would involve granting permission for matters that were not specified in the enforcement notice… is nothing to the point… In this case there can be no doubt that granting planning permission for the balcony would involve granting planning permission for part of the matters specified in the enforcement notice.”
The planning objective of the clause is to stop “applicants who have undertaken development in breach of planning control from gaming the system by tactical appeals and retrospective applications”, he said.
“The applicant cannot have ‘multiple bites at the cherry’ but nor can he decline the cherry when it is available to be bitten, and insist on biting it at a later occasion,” he said.
He dismissed the appeal, saying he was “satisfied” that the planning authority could rely on section 70C(1) of the act.
Chesterton Commercial (Bucks) Ltd v Wokingham District Council
Planning Court (Judge Martin Rodger QC) 13 July 2018
