Seventeen De Vere Gardens (Management) Ltd, R (On the Application Of) vThe Royal Borough of Kensington And Chelsea

Section 70C of the Town and Country Planning Act 1990 gives a planning authority a discretion, rather than an obligation, to decline a retrospective application concerning development already covered by an enforcement notice. The discretion prevents repeated consideration of the same planning merits, but does not prevent consideration where those merits have not previously been determined. The authority must consider why the merits were not determined and whether delay or manipulation is involved. A planning committee may rely on an officer’s report, but the report must fairly and accurately identify material matters. Where an inspector has extended time under ground (g) to permit a complete application for the same development, the authority must address that decision and give reasons if it declines to determine the application.

The claimant challenged the Council’s decision under section 70C of the Town and Country Planning Act 1990 to decline to determine a complete retrospective planning application for pigeon-deterrent netting. An earlier application for the same development had been invalid because required drawings were not supplied. An enforcement notice was then issued. On appeal, the merits route under ground (a) lapsed because the required fee was not paid, but the Inspector allowed ground (g) to the extent of extending the compliance period so that a revised application could be submitted.

The claimant submitted a complete second application within that period. The Council’s officer’s report treated the Inspector’s decision as referring to a materially different development and recommended declining to determine the application. The central issue was whether that interpretation materially misled the planning committee and unlawfully constrained its section 70C discretion.

1. Claim allowed. The Council’s decision to decline to determine the second planning application was quashed. The matter was remitted to the Planning Applications Committee, and no enforcement steps were to be taken until reconsideration.
2. Section 70C confers a wide discretion. Its purpose is to prevent an applicant obtaining multiple determinations of the same underlying planning merits through parallel or successive procedures. It does not require an authority to decline an application where those merits have not previously been determined. Relevant circumstances include the reason the merits were not determined and whether delay or manipulation is involved.
3. The Inspector’s ground (g) decision had to be read in context. The reference to a revised application meant, or included, a further complete application for the same development, supported by the missing scale drawings. It did not necessarily refer to a materially different development.
4. The officer’s report materially misstated the Inspector’s decision and wrongly suggested that the planning merits had already been considered. The committee effectively adopted that analysis and was materially misled. The committee remained entitled to decide whether to exercise the section 70C discretion, but it had to address the Inspector’s decision and give reasons if it declined to determine the application.
5. An officer’s report must be read fairly as a whole and not subjected to statutory exegesis. Nevertheless, it must not significantly mislead the committee about material matters. A planning committee and an inspector perform different functions: the former determines an application administratively, while the latter adjudicates an adversarial appeal and addresses the principal controversial issues.