The High Court in Chesterton Commercial (Bucks) Ltd v Wokingham District Council [2018] EWHC 1795 (Admin) has recently clarified the broad rights of local planning authorities to decline to determine planning applications which are similar to (in whole or part) planning breaches detailed in an existing enforcement notice.
Legislation
Section 70C(1) of the Town and Country Planning Act 1990 provides that:
"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 facts
Separate planning permissions had been granted for a garage and boathouse for a residential property at Henley-on-Thames in Berkshire. However, without planning permission, the owner constructed such buildings together with a link building. Following discussions with the LPA, the owner submitted a retrospective planning application for the erection of the garage, boathouse and linking structure. The LPA issued an enforcement notice for all these buildings (the garage and boathouse having not been implementation of their respective extant permissions) and refused the retrospective planning application.
The owner appealed, and the planning inspector upheld the enforcement notice and refusal of planning permission, as the additional link building was considered inappropriate development in the green belt and had a detrimental impact on openness. Importantly, the inspector did not amend the details of the planning breach in the enforcement notice (i.e. which included all three buildings) but did amend the remedial actions required from demolition of all buildings to alternatively removing the link building, together with adjustments to the garage and boathouse, in line with the approved drawings in the planning permissions for those buildings.
The owner did not take the required remedial action to remove the link building, and instead applied for permission to construct a balcony to link the garage and boathouse at first floor level.
The LPA declined to determine the application pursuant to its discretion under section 70C(1) on the grounds that it related to matters specified in the enforcement notice as constituting a breach of planning control. The owner argued in the case that such decision was unlawful.
The decision
The High Court dismissed the claim for judicial review. It noted the statutory purpose of section 70C(1) was to avoid giving landowners a second bite of the cherry and, importantly, trying to delay enforcement.
The court noted the following key guiding principles as to the application of the power to decline:
- Section 70C(1) requires an assessment of whether granting the planning permission sought would involve granting permission for ‘any part’ of the matters specified in the enforcement notice. The purpose of the comparison is to identify any overlap between the matters enforced against and the subject of the new application;
- The fact that granting the new application would also involve granting permission for matters which were not specified in the enforcement notice, or that it would not involve granting permission for other matters which were specified in the notice, are nothing to the point when considering whether the power to decline to determine the application is engaged;
- Section 70C(1) only concerns identification of the matters specified in the enforcement notice as constituting the breach. Those same matters, stated in the notice, define the scope of the planning permission which an inspector will be required to consider on any appeal under section 174(2)(a). It is not concerned with the steps which the enforcement notice requires to be taken, or the activities which must cease, in order to remedy the breach or any injury to amenity which has been caused by the breach; and
- Section 70C(1) is a discretionary power of the LPA. The extent of any differences between the matters in the enforcement notice and the new application may be very relevant to the exercise of this discretion (which would be challengeable on Wednesbury reasonable). In this case, given the inspector’s comments on the impact to the openness of greenbelt building the existing permissions, it was determined the council did not act unreasonable.
Lesson: The power of councils to decline to determine a planning application on a development already the subject of an enforcement notice is broad. If any new application includes part of the details of the breach in the enforcement notice, then the council could decline its determination. Therefore, during any appeal of the enforcement notice, it is important that consideration is given to the description of the breach of planning and whether all of the stated breaches of planning are accepted or any part contested (and requires amendment).
