Jeeves & Anor, R (on the application of) v Gravesham Borough Council

Section 70A permits a local planning authority to decline a similar planning application only where the statutory conditions are met and the authority reasonably considers that no significant change has occurred in the relevant considerations. Similarity does not require identical applicants or proposals. Government guidance on the power is a material consideration and may create a legitimate expectation that it will be followed. The guidance indicates that the power is intended for repeated applications used to wear down resistance, not merely for a genuinely different applicant seeking a home. Continued occupation in breach of an enforcement notice may be relevant, but cannot alone justify refusal to entertain the application. A failure to apply the guidance unlawfully vitiates the decision.

The claimants, Romany gypsies, occupied land in the Green Belt with their children and sought planning permission for a mobile home. A previous owner had made a similar application, which had been refused on appeal. An enforcement notice had also taken effect.

The Council declined to determine the claimants’ application under section 70A of the Town and Country Planning Act 1990, considering that there had been no significant change in the relevant considerations. The claimants sought judicial review, arguing that their personal circumstances, their children’s education and medical needs, and the applicable government guidance materially distinguished their application. The central issue was whether the Council had lawfully exercised its discretion to decline to determine the application.

1. The claim succeeded. The Council’s decision was quashed. It was not entitled to rely on section 70A to refuse to entertain the application.
2. Under section 70A, applications are similar where the development and land are the same or substantially the same. Identical applicants, factual circumstances or detailed proposals are unnecessary. The applications here were plainly similar.
3. The statutory question under section 70A(1)(b) was whether the authority reasonably thought that there had been no significant change in the relevant considerations. The provision did not require an objectively correct conclusion, but the decision had to be reasonable on the material before the authority. The claimants’ need for a home, their children’s education and the child’s medical condition were potentially material, although the evidence explaining the absence of alternatives was limited. The Council’s view on significant change could not, by itself, be impugned.
4. Circular 14/91 remained relevant because the substituted statutory provision made no material change. The guidance indicated that the power should be used narrowly, principally where repeated similar applications were intended to wear down local communities or the planning authority. Continued occupation in defiance of an enforcement notice could support an inference of misuse, but could not alone justify refusal under the guidance. There was no sufficient evidence of a continuing scheme or link between the earlier application and the claimants’ genuinely personal application.
5. The guidance did not override the statute, but it was a material consideration governing the exercise of the statutory discretion. The Council’s officer had misconstrued and failed properly to apply it. The claimants were entitled to expect compliance with the guidance unless a departure was clearly announced in advance.
6. The application had to be entertained and determined. Its ultimate success was undecided; the material did not establish that it was doomed to fail. Costs followed the event, subject to detailed assessment.