Harrison, R (On the Application Of) v Richmond Upon Thames London Borough Council

Under section 70A of the Town and Country Planning Act 1990, similarity is assessed by reference to features relevant to whether the power should be used. A fresh application may be substantially the same as an earlier application despite differences in design, where both share a characteristic previously found fatal to the proposal.

Satisfaction of the statutory preconditions does not automatically justify declining to determine the application. The authority must properly consider the guidance in Circular 8/2005, including whether repeated applications are intended to wear down opposition. An application which does not accommodate earlier objections is not automatically an attempt to wear down opposition. Failure to ask that question constitutes a material error of law.

The claimant sought judicial review of the defendant local planning authority’s decision under section 70A of the Town and Country Planning Act 1990 to decline to determine a fresh application for residential mooring of a houseboat at Phoenix Wharf, Eel Pie Island.

An earlier enforcement appeal concerning a larger vessel had been dismissed by a planning inspector. The claimant’s fresh application concerned a different, smaller traditional houseboat and relied on a heritage report. The authority considered the applications substantially the same and found no significant change in relevant considerations. It declined to determine the application without properly addressing the guidance on repeated applications in Circular 8/2005.

1. The decision was set aside. The authority had been entitled to conclude that the fresh and earlier applications were the same or substantially the same, and that there had been no significant change in the relevant considerations.
2. Similarity under section 70A is not confined to identical proposals. Parliament contemplated points of similarity relevant to the exercise of the power. Here, both applications shared the characteristic previously found fatal: residential use of the mooring. The difference between the vessels did not prevent them being substantially the same. The court applied the reasoning in Jeeves and Baker v Gravesham Borough Council [2006] EWHC 1249 (Admin).
3. The authority nevertheless retained a discretion. The statutory preconditions did not require it automatically to decline the application. Circular 8/2005 was a material consideration, although it was guidance rather than legislation.
4. The central guidance in paragraph 8 was that the power should be used only where the authority believed that the applicant was trying to wear down opposition by repeated applications. An application revised in a genuine attempt to address earlier objections was an example of a proposal not designed to wear down opposition. These were opposite ends of a spectrum, not mutually exclusive categories. The fact that an application did not address earlier objections did not itself establish an attempt to wear down opposition.
5. The authority had not asked and answered the paragraph 8 question, nor considered whether there was good reason to depart from the guidance. It therefore misconstrued the Circular and failed to address the correct questions. The court did not need to decide whether a properly reasoned conclusion against the claimant would have been irrational.
6. The decision became definitive when the application and fee were returned. Later events could not retrospectively alter its lawfulness. Any resubmitted application would require a fresh decision in the prevailing circumstances. No mandatory order was made, although permission to apply was reserved if the authority again exercised section 70A.
7. The claimant was awarded costs of £28,876.78.

This was a first-instance judicial review. Permission was refused on paper by Mr Christopher Symons QC on 11 October 2012, but granted by Swift J after an oral hearing on 6 February 2013.