Gill, R (On the Application Of) v Central Bedfordshire Council

Section 70A of the Town and Country Planning Act 1990 permits a local planning authority to decline to determine a later application where the statutory conditions are met and the proposed development and land are the same or substantially the same as those previously considered. A material similarity may consist of retaining characteristics which caused the earlier application to fail. The power remains discretionary and must be exercised lawfully, having regard to relevant considerations and the purpose of preventing repetitive applications. An authority may rely on planning officers’ investigations and recommendations, but the authorised decision-maker must make the decision. A decision will be quashed where an irrelevant and legally erroneous consideration materially influences the exercise of the discretion.

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 an application for the partial demolition and roof reduction of an existing double garage in the Green Belt.

The garage had previously been the subject of an enforcement appeal. The Secretary of State’s Inspector dismissed the ground (a) appeal, finding that the garage, cumulatively with extensions to the dwelling, was a disproportionate addition causing harm to the Green Belt. The authority concluded that the later proposal was substantially the same development and that there had been no significant change in relevant considerations.

The claimant challenged the decision on the grounds that the similarity finding was irrational and that the authority had relied on an irrelevant and legally erroneous conclusion concerning alteration of the enforcement notice and the unlawfulness of the existing building.

1. The decision was quashed. The authority was required to reconsider the application lawfully.
2. Under section 70A of the Town and Country Planning Act 1990, the authority had to form the opinions that the later and earlier applications related to development and land which were the same or substantially the same, and that there had been no significant change in the relevant considerations. The power was discretionary, not automatic. Its purpose was relevant because the power is intended to inhibit repetitive applications while allowing genuine attempts to overcome earlier planning objections.
3. The authority was entitled to conclude that the applications concerned substantially the same development. Both proposals concerned a brick-built double garage on the same site, 1.1 metres from the dwelling. Although the later proposal reduced the height and depth, its width remained substantially unchanged. It was rational to treat as relevant the fact that the later proposal retained characteristics which the Inspector had found fatal, namely its size, bulk and siting, and the resulting disproportionate addition in the Green Belt. The court would not substitute its planning judgment for that of the authority. This approach was consistent with R (Harrison) v Richmond upon Thames LBC [2013] EWHC 1677 (Admin).
4. The authority’s statement that it was impossible to validate an application seeking to alter an unlawful building was wrong in law. Retrospective planning permission could in principle be granted even where the original construction was unlawful. The authority also wrongly treated the proposal as an attempt to alter the enforcement notice.
5. Those matters were not immaterial. They appeared to have influenced the authority’s discretionary decision to decline to determine the application. The court could not know how influential they had been and could not safely sever them from the lawful reasoning. The decision therefore had to be reconsidered.
6. The reasons were otherwise adequate. The authority could cross-refer to the Inspector’s decision, and supporting evidence could elucidate the decision and rebut an allegation of irrationality, provided that it did not contradict or improperly bolster the original reasons. The reasons principles in South Bucks District Council and another v Porter (No 2) [2004] 1 W.L.R. 1953 were satisfied.
7. The authorised decision-maker was entitled to be assisted by an unauthorised planning officer’s investigations, report and recommendation. The evidence established that the authorised officer made the decision and exercised independent judgment.