R (on the application of Banghard) v Bedford Borough Council

Town and country planning – Planning application – Section 70C of Town and Country Planning Act 1990 – Claimant applying for planning permission for storage use of building – Defendant local authority refusing to determine application under section 70C of the 1990 Act – Claimant applying for judicial review – Whether defendants having power to decline to determine application – Whether defendants exercising power rationally on facts – Application granted The claimant applied for judicial review of the decision of the defendant local authority to decline to determine a planning application for “alteration to the building and use of building”. Section 70C provided: “(1) A local planning authority … 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. (2) …. a “pre-existing enforcement notice” is an enforcement notice issued before the application was received by the local planning authority”. In 2010, the defendants had granted planning permission for the “erection of outbuilding for the purpose of storing vehicles”. The claimant constructed a building on the site on the same footprint as the building which was the subject of the permission. However, the defendants took the view that that building was being used as a dwelling house and was not in the same form as the permitted building and issued an enforcement notice pursuant to section 172 of the 1990 Act. The claimant’s appeal against the enforcement notice under section 174 of the 1990 Act on grounds (a), (b), (f) and (g) was dismissed by the inspector. After the appeal decision the claimant submitted a planning application for a storage use of the building, the same use as was granted permission in 2010. The defendants declined to determine that application under section 70C. The issues for determination on the application for judicial review were: (i) whether the defendants had the power under section 70C to decline to determine the application; and, if they did, whether they exercised it rationally on the particular facts before them. Held: The application was granted. (1) Section 70C conferred a wide discretionary power on local planning authorities to decline to determine a retrospective planning application for a development, subject to an enforcement notice. Parliament’s intention was to provide a tool to local planning authorities to prevent retrospective planning applications being used to delay enforcement action. There was a legislative steer in favour of exercising the discretion, especially since enforcement notices could be appealed and the planning merits thereby canvassed. Section 70C was not a gateway for applicants to canvass the full planning merits. The intention was that the applicant could not insist on more than one determination of the underlying planning merits of the development. That was the mischief, or abuse, that section 70C was intended to remedy. The claimant was able to insist upon only one consideration of the underlying planning merits of the development by appealing against the enforcement notice. If the claimant subsequently applied for planning permission for that development, the planning authority was not obliged to determine that application but had a discretion to do so. The applicant could not have multiple bites of the cherry. However, where the relevant merits had not been determined, section 70C was not designed to prevent them being considered. That was not in conflict with the aims and purpose of section 70C: Ioannou v Secretary of State for Communities and Local Government [2014] EWCA Civ 1432; [2015] EGLR 10, Wingrove v Stratford on Avon District Council [2015] EWHC 287; [2015] PLSCS 56, R (O’Brien) v South Cambridgeshire District Council [2016] EWHC 36 (Admin) and R (Seventeen de Vere Gardens Management Ltd) v London Borough of Kensington and Chelsea [2016] EWHC 2869 (Admin); [2016] PLSCS 306 considered. (2) In the present case, the effect of the defendants’ interpretation of section 70C was that the claimant had not been able to have the planning merits of the storage building he now wished to construct considered by the local planning authority and ultimately on appeal. The inspector on the enforcement notice appeal could not consider them because he had an enforcement notice against residential use before him, and the ground (a) appeal could only relate to that use, and the defendants’ decision to rely on section 70C meant that the claimant could not have the matter considered under section 70 as would usually be the case. On the facts, it could not properly be said that the permission sought for a storage building was part of the breach of planning control in the enforcement notice, namely the erection of a dwelling house. If one took the statutory purpose to be to ensure that effective enforcement could not be avoided or delayed by those in breach of planning control having multiple bites of the cherry, it was easy to see why that situation did not arise here. The enforcement notice inspector was clear that he did not have the power to consider the proposed storage use within the section 174 enforcement notice appeal. That was a clear indication that the storage use was not part of the matters being enforced against. (3) Given that the court had found that the defendants had no jurisdiction to decline to determine the application under section 70C the issue of whether or not they acted unreasonably did not arise. However, even if they still had technical jurisdiction, the court would have found that it was unreasonable to refuse to determine the claimant’s application. On the facts, the claimant’s conduct did not make it lawful and rational for the defendants to deny him a determination of the storage application. Although the officer’s report said the planning application would almost certainly be refused, it was relevant that planning permission was granted by the defendants for a storage use in 2010. It could not sensibly be said that the application was hopeless or obviously made simply to defer the proper operation of the enforcement process. Accordingly, it was irrational to rely on section 70C. Annabel Graham Paul (instructed by Bond Adams LLP) appeared for the claimant; Jack Smyth (instructed by Bedford Borough Council) appeared for the defendants. Eileen O’Grady, barrister Click here to read the transcript: R (on the application of Banghard) v Bedford Borough Council