Home > News > High Court rules on the power to decline to determine planning applications

The High Court (Upper Tribunal Judge Martin Rodger QC) in Chesterton v Wokingham BC [2018] EWHC 1795 (Admin) considered whether a local authority had properly exercised its discretion to decline to determine a planning application under section 70C of the Town and Country Planning Act 1990. Section 70C provides that a local authority can decline to determine where granting permission would involve granting permission for the whole or any part of the matters specified in a pre-existing enforcement notice as constituting a breach of planning control.

In Chesterton, the local authority had issued an enforcement notice against a building comprising a boathouse and a garage which were linked by a “store room”. Following an appeal to a planning inspector, the enforcement notice was varied to require only the removal of the “store room”. The Claimant subsequently made a planning application for the creation of a “balcony”, which would link the boathouse and the garage rather than the “store room”. The local authority declined to determine this application under section 70C.

The Judge held that section 70C was not concerned with the existence of differences between two developments, but with the existence of similarities. Thus, the discretion is available where any part of an enforced against matter was involved, regardless of whether the application would also involve granting permission for matters which were not specified in the enforcement notice and regardless of whether the application would involve consideration of different planning merits.

The “balcony” would involve retaining some parts of the “store room”, thus the Judge found that granting permission for the “balcony” would involve granting permission for part of the matters specified in the enforcement notice and therefore the local authority had acted lawfully.

The Claimant had relied on the recent decision in R (Banghard) v Bedford Borough Council [2017] EWHC 2391 (Admin), where the High Court had found that a local authority had not properly exercised their discretion in section 70C. The Judge in Chesterton found that Banghard was distinguished on its facts, and importantly stated that he found parts of the Judge’s dicta in Banghard “difficult to reconcile” with the statutory language, in particular the suggestion that section 70C is restricted to cases where the application for planning permission involves only “a very minor change” from the development described in the enforcement notice.

Sasha White QC and Anjoli Foster acted on behalf of the Claimant.

The judgment can be found here.

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