“Two Bites of the Cherry” - Court of Appeal clarifies scope of Section 70C powers

The Court of Appeal has handed down judgment in Moran v Medway Council [2026] EWCA Civ 484, marking the first occasion it has considered the scope and purpose of section 70C TCPA. Introduced in 2011, section 70C allows local planning authorities the power to refuse planning applications where an enforcement notice is already in force and the proposed development for which permission is sought would overlap with the development the subject of an enforcement notice. In practice, the provision has often been described as preventing landowners taking “two bites of the cherry” when seeking planning permission for development already caught by an existing enforcement notice.

The claimant argued that section 70C could only operate where the application was a retrospective application (by reference to the title of the provision). The enforcement notice was issued in 2017, and the local authority had since taken direct action to clear the site. It was also argued (in reliance on various first instance judgments) that section 70C could only apply if the effect of proceeding to determine an application would cause delay to enforcement.

The Court rejected both arguments and clarified that the statutory purpose is not restricted to preventing delay. The judgment confirms the broad discretion available to local planning authorities when deciding whether to exercise its section 70C power. Lord Justice Dove (with whom the other judges agreed) stated that the purpose is simply the prevention of “the potential for the occupier of the land subject to the enforcement notice to insist upon more than one determination of the planning merits of the breach of planning control”.

James Neill acted for Medway Council, the successful respondent.