Town and country planning – Planning application – Section 70C of Town and Country Planning Act 1990 – Claimant applying for planning permission for creation of balcony to link buildings – Defendant local authority refusing to determine application in reliance on section 70C of 1990 Act – Claimant applying for judicial review – Whether discretion in section 70C being engaged – Whether defendant lawfully exercising discretion – Application dismissed
The claimant was a company which owned land and a Grade II listed cottage on the banks of the River Thames in Henley-on-Thames, Berkshire. The land had been the subject of unauthorised development by the claimant, followed by a number of applications for retrospective planning permission, which had been met by refusals and enforcement action. The claimant applied for the creation of a balcony to link a garage and a boathouse at first floor level on the claimant’s land. The defendant local authority declined to determine the claimant’s application, relying on section 70C of the Town and Country Planning Act 1990 which provided: “A local planning authority in England may 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 claimant applied for judicial review of that decision. The issues were whether the discretion in section 70C was engaged on the facts and, if it was, whether the defendant‘s refusal to consider an application for planning permission made by the claimant was a lawful exercise of that discretion. The claimant asserted that the boathouse and garage elements of the new building were built in accordance with planning permissions, but it acknowledged that the link building was not. The defendant disputed the first part of that assertion and said that the whole of the new range was built without planning permission.
Held: The application was dismissed.
(1) By section 173(1)(a) of the 1990 Act, an enforcement notice was required to state “the matters which appear to the local planning authority to constitute the breach of planning control”. It was that statement on which the comparison required by section 70C(1) had to focus. In the present case, the matters stated in the enforcement notice as constituting a breach of planning control were “without planning permission the erection of an outbuilding, brick wall, gates and gate posts (“the building”) in the approximate position shown …” on the plan attached to the notice. The plan identified the whole of the new building comprising the garage, boathouse and link building. The matters specified were therefore the erection of a particular structure in a specific location.
(2) To engage section 70C(1), it was enough that the retrospective application related to “the whole or any part of the land” to which the enforcement notice related, and that granting it would involve granting permission for “the whole or any part of” the matters specified in the enforcement notice.
The question whether section 70C was capable of being relied on involved an element of planning judgment. However, the matters to be considered were of objective matters requiring a comparison between two documents, the enforcement notice and the application for planning permission. Making that comparison necessarily involved a judgment, possibly on a number of factors, but it remained a relatively limited exercise which was likely in most cases to be capable of only a single outcome. It was important not to approach the application of section 70C as if it involved simply a single exercise of the authority’s discretion.
Where reliance on the provision was challenged it was necessary to consider first whether the circumstances described in section 70C(1) existed, so that the discretion to decline to determine an application was available, before considering any complaint about the manner in which the discretion had been exercised. The statutory language of section 70C required an assessment of whether granting the planning permission sought would involve granting permission for any part of the matters specified in the enforcement notice. In this case, granting planning permission for the balcony would involve granting permission for part of the matters specified in the enforcement notice.
The statutory objective of stopping applicants who had undertaken development in breach of planning control from gaming the system by tactical appeals and retrospective applications was not achieved by asking only whether the planning merits of a proposal had already been determined. The statutory purpose required that the unexploited opportunity to have the planning merits considered should also count against the applicant, because in such cases the developer had had a full opportunity to a fair process and did not avail himself of it.
The inspector expressed a very clear conclusion that any additional development could not be justified and, given the extent to which the unlawful development was sought to be retained by the balcony application, with other elements to be reused in different locations, it could not be suggested that the defendant’s decision was not properly open to it. In particular, given the claimant’s desire to retain parts of the structure between the garage and the boathouse, and to relocate the staircase so that it projected beyond the front of the building, the potential for an adverse impact on openness in the green belt was clear.
The assessment of that impact was a matter for the defendant and could not be challenged on the very broad grounds advanced by the claimant: Wingrove v Stratford on Avon District Council [2015] EWHC 287 (Admin); [2017] PLSCS 287 and R (on the application of Banghard) v Bedford Borough Council [2017] EWHC 2391 (Admin); [2017] PLSCS 181 considered.
Sasha White QC and Anjoli Foster (instructed by Richard Max & Co LLP) appeared for the claimant; Saira Kabir Sheikh QC (instructed by Select Business Services: Legal Solutions) appeared for the defendant.
Eileen O’Grady, barrister
