Wingrove v Stratford-On-Avon District Council

Section 70C of the Town and Country Planning Act 1990 gives a local planning authority a wide discretion to decline a retrospective application where the development is covered by a pre-existing enforcement notice. Its purpose is to prevent retrospective applications being used to delay enforcement. The discretion is not a gateway for reconsidering the full planning merits. Relevant considerations may include the applicant’s reasons for not appealing, the likelihood of delay, material changes in policy, plain misapplication of planning provisions, or whether proper conditions could make the development acceptable. A decision will withstand judicial review where the authority properly addresses those matters and reaches an unimpeachable planning judgment. Reasons may be read with the officer’s report and assessed for a knowledgeable readership.

The claimant sought judicial review of Stratford-on-Avon District Council’s refusal to determine a retrospective planning application for two residential units used in an equestrian enterprise. An enforcement notice had required the residential use to cease and the building to be demolished. The claimant had not appealed the notice and had made successive retrospective applications, each declined under section 70C of the Town and Country Planning Act 1990.

She alleged inadequate reasons, irrelevant or omitted considerations, and misapplication of planning policy, including the National Planning Policy Framework and local equestrian policies. The central issue was whether the Council had lawfully exercised its discretion to decline the application.

1. The claim was dismissed. Section 70C of the Town and Country Planning Act 1990 confers a wide discretion to decline a retrospective planning application where permission would relate to matters specified in a pre-existing enforcement notice.

2. The legislative history showed that the section was intended to prevent retrospective applications being used to delay enforcement. That purpose created a legislative steer in favour of exercising the discretion where the application appeared directed to delay. The applicant’s actual motive was therefore a relevant consideration.

3. The discretion was not a gateway to a full determination of planning merits. Nevertheless, public law grounds might arise where there had been a legitimate failure to appeal and the development plainly complied with planning provisions, where provisions had plainly changed or been plainly misapplied, or where proper conditions could readily make the development acceptable.

4. The Council was entitled to infer a delaying purpose from the claimant’s history, failure to appeal, failure to seek pre-application advice and request that prosecution be held over. Its planning judgment that the proposed occupancy condition did not materially alter the residential nature of the accommodation was open to it. The Council also properly considered the relevant local policies and the NPPF, including the effect of its inadequate five-year housing supply, and reasonably concluded that the development was not sustainable.

5. The reasons challenge failed. The decision letter and officer’s report had to be read together and were addressed to a knowledgeable readership, following R (Trashorfield Limited) v Bristol City Council [2014] EWHC 757 (Admin).

6. The late argument that the building was immune from enforcement under section 171B(1) also failed. The claimant did not establish that the works were substantially complete more than four years before the enforcement notice. The burden was not discharged, applying Newtoreva-Goremsandu v Secretary of State for Communities and Local Government [2010] EWHC 793 (Admin).

First-instance judicial review. The judgment records an earlier judicial review claim which was compromised by a consent order dated 26 February 2014, followed by the Council’s redetermination. The present application was dismissed.