A recent high court case clarified the application and scope of Section 70C of the Town and Country Planning Act 1990, which covers the power to decline determining a planning application.
In Chesterton v Wokingham BC  EWHC 1795 (Admin), the High Court (Upper Tribunal Judge Martin Rodger QC) examined if the local authority Wokingham District Council had properly exercised its discretion under section 70C of the Town and Country Planning Act 1990.
Section 70C involves declining to determine an application if to do so might grant planning permission for the whole or any part of a matter identified as a breach of planning control in a pre-existing enforcement notice. This provision’s objective is to avoid delay in enforcement by making sure that the merits of unauthorised development are only considered once, which would be in an appeal against the enforcement notice.
In this High Court case, the Claimant exercised his right to such an appeal against an enforcement notice. The notice was issued against a complex with a new boathouse and garage in Chesterton. These were connected together by a single-storey link building.
The enforcement notice was upheld but was changed to require only the removal of the link building. Planning permission was refused under the deemed application provision of Section 117(5). Then, the Wokingham Borough Council declined to determine the Claimant’s latter planning application, involved the creation of a balcony to link the boathouse and garage.
The Claimant argued the reliance on the power was unlawful where there was a material difference between the development proposed in the new application and the matter enforced against as the proposed development may give rise to different planning considerations than the ones used in the appeal against the enforcement notice.
However, this submission was rejected on four grounds. UTJ Martin Rodgers accepted the arguments from the Council. The judge ruled that the breach specified in the enforcement notice is what matters. Section 70C is concerned with the existence of similarities between two developments and not the existence of differences.
The statutory purpose was to prevent tactical appeals. The Claimant had failed to raise the proposal that he now sought permission for during the enforcement appeal. The judge commented: “the applicant cannot have multiple ‘bites at the cherry’, but nor can he decline the cherry when it is available to be bitten, and insist on biting it on a later occasion”.
The claimant heavily relied on the case of R (Banghard) v Bedford Borough Council  EWHC 2391 (Admin), which was distinguished on its facts. Here, permission was sought for a storage unit, and the matter enforced against was the erection of a dwelling.
On whether or not the discretion is available to an LPA is a matter of judgement and requires a comparison between two documents. This case is an important assessment of Section 70C and is helpful to LPAs hoping to curb the tactical use of new applications to dodge complying with enforcement notices.