Section 70C of the Town and Country Planning Act 1990 provides: “(1) 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. (2) For the purposes of the operation of this section in relation to any particular application for planning permission, a “pre-existing enforcement notice” is an enforcement notice issued before the application was received by the local planning authority.”
The claimant applied to the defendant local planning authority for the grant of retrospective planning permission for the erection of a balcony in an area specified in the application. Part of the area specified in the planning permission application was also a part of the area specified in a pre-existing enforcement notice, issued by the authority against the claimant, which required the removal of a building which had been erected without authorisation by the claimant, and which requirement had not been complied with. The authority purported to exercise its discretion to decline to determine the application on the basis that section 70C of the Town and Country Planning Act 1990 was engaged. The claimant sought judicial review of that decision on grounds, inter alia, that section 70C had not been engaged because of the substantive and real differences between the balcony proposal, and the breach of planning control specified in the enforcement notice, so that the decision to refuse to determine the application was unlawful.
On the claim—
Held, the claim was dismissed. Section 70C of the Town and Country Planning Act 1990 conferred a discretion upon a local planning authority to decline to determine an application for planning permission if the grant of permission would entail granting planning permission in respect of the whole of, or any part of, matters specified in an extant enforcement notice. In considering the discretion under section 70C the only relevant part of the enforcement notice was that which specified the matters which constituted the breach of planning control; it was not concerned with the steps required by the enforcement notice to remedy the breach. Once the matters constituting the breach were identified, section 70C then invited a comparison between those matters and the development to which the retrospective application for planning permission related. When conducting that comparison, section 70C was concerned not with the existence of differences between the enforcement notice and the planning application, but with their similarities, and the section was engaged if there was any overlap between “the whole or any part of the land” to which the enforcement notice related and the subject of the retrospective application, such that granting the application would have meant granting permission over “the whole or any part of” the matters specified in the enforcement notice. Section 70C was not confined to cases involving only a very minor change from the development described in the enforcement notice; it applied to all cases involving “planning permission for... any part of the matters specified in the enforcement notice”, which included changes of substantive and real difference between the matters specified in the enforcement notice and the matters specified in the planning application. On the facts, the matters specified in the enforcement notice were the erection of a particular structure in a specific location. If planning permission had been granted, it undoubtedly would have constituted the grant of planning permission over a part of the matters specified in the enforcement notice. Accordingly, the local authority had been entitled to rely on section 70C to refuse to determine the claimant’s application for retrospective planning permission (paras 56–58, 60, 62, 67, 68, 73).
Sasha White QC and Anjoli Foster (instructed by Richard Max & Co llp) for the claimant.
Saira Kabir Sheikh QC (instructed by Select Business Services: Legal Solutions, Wokingham) for the local authority.