Banghard, R (on the application of) v Bedford Borough Council

Town and Country Planning Act 1990, section 70C, prevents repeated consideration of the same planning merits through an enforcement appeal and a later planning application. It does not permit an authority to refuse determination where the later application concerns materially different matters, merely because part of the building or its footprint is retained. The discretion must be exercised rationally and for the statutory purpose. Speed, cost and enforcement convenience cannot alone justify refusing a determination.

The claimant sought judicial review of the Council’s decision of 22 August 2016 to decline, under section 70C of the Town and Country Planning Act 1990, a planning application for alteration of a building and storage use. An earlier enforcement notice alleged the unauthorised erection of a dwelling house and required cessation of residential use and demolition. The planning inspector found that the 2010 storage permission had not been implemented and could not consider storage use in the enforcement appeal. The issues were whether section 70C was engaged and whether its use was rational.

1. Ground One allowed. Section 70C is a wide discretionary power directed to preventing an applicant from obtaining two separate determinations of the same underlying planning merits. It is not a power to refuse consideration of different planning merits. The approach in R (O’Brien) v South Cambridgeshire District Council [2016] EWHC 36 (Admin) and R (Wingrove) v Stratford-on-Avon District Council [2015] EWHC 287 (Admin) supported that purpose.
2. Whether the power is engaged involves planning judgment about the matters specified in the enforcement notice. Here the notice concerned the unauthorised erection of a dwelling house, whereas the application concerned storage use and proposed material changes to the building. The fact that some of the building would remain on the same footprint did not make the storage proposal part of the breach specified in the notice. Section 70C therefore could not lawfully be used.
3. The inspector’s inability to consider storage use in the enforcement appeal reinforced that conclusion. Ioannou v Secretary of State for Communities and Local Government [2014] EWCA Civ 1432 demonstrated that an alternative scheme outside the matters in the notice could be explored through an appropriate extension of time.
4. Ground Two also succeeded. Although the rationality threshold is high and effective enforcement is important, the Council could not rely on section 70C simply because determining the application would be quicker or cheaper and might lead to a further appeal. The earlier permission for storage meant that the application was not hopeless or obviously intended merely to delay enforcement. The principles concerning officer’s reports in R (Zurich Assurance) v North Lincolnshire Council [2012] EWHC 3708 (Admin) applied to the delegated decision.
5. The judge added that successive spurious applications intended to avoid enforcement could be placed before the Magistrates or civil court. Preventing reliance on section 70C in this materially different case did not undermine effective enforcement.

This was a first-instance judicial review. The judgment records that a planning inspector had upheld an enforcement notice after finding that the building had been erected as a dwelling house and that the storage use could not be considered in that enforcement appeal. The High Court then allowed both grounds of challenge to the Council’s later section 70C decision.