PP 2013/114

A rare example of a challenge to the decision of a local planning authority to decline to determine a subsequent planning application   Section 70A of the Town and Planning Act 1990 gives a discretionary power to a local planning authority (“LPA”) to decline to determine a subsequent planning application in a number of given sets of circumstances where planning permission has previously been refused. (The underlying purpose of the statutory provisions is to reduce the value of a long recognised practice of some developers to seek to “wear down” the resistance of the LPA by the use of repeat applications.) To exercise the power, the LPA must initially form two opinions. The first is that the new and the earlier applications are “similar” in the sense that the development and the land to which the applications relate are the same, or substantially the same. The second is that there has been no significant change in the development plan, so far as material, or in any other material considerations. Circular 8/2005 gives guidance on the use of the section 70A power. That guidance is a material consideration itself to which the LPA must have regard. It advises, in particular, that the power should only be used where the LPA considers that the applicant is trying to wear down opposition by submitting repeat applications. It advises also that if the application in question has been revised in a genuine attempt to take account of objections to an earlier proposal, the LPA should determine it. There is no right of appeal against the LPA’s decision, though the applicant is entitled to seek judicial review of it. The claim in R (on the application of Harrison) v Richmond Upon Thames London Borough Council [2013] EWHC 1677 (Admin) provides a rare example of such a challenge. The court disagreed with the claimant’s first contention, namely that the applications were not “similar”. The land was certainly the same, and while details of the development in each case may have differed, the developments were on the facts substantially the same. It was clear from earlier authority that they did not have to be identical. Similarly, it disagreed with his second contention. There had been no material underlying change in the development plan, and additional reports that had been submitted to the LPA on the later occasion did not, on the facts, amount to a significant change in the material considerations. However, it set aside the decision holding that despite this the LPA had acted perversely in that it had misconstrued Circular 8/2005 in purporting to apply it.   John Martin