Chesterton Commercial (Bucks) Ltd v Wokingham District Council

Section 70C of the Town and Country Planning Act 1990 is engaged by an objective comparison between the enforcement notice and the planning application. The question is whether granting permission would involve permission for any part of the matters specified in the notice as constituting the breach. Complete coincidence is unnecessary.

The comparison is distinct from the later exercise of discretion. Differences between the developments may affect whether the discretion should be exercised, but do not prevent it being available. The provision is directed against repeated or tactical opportunities to obtain consideration of the same unauthorised development, including where an earlier opportunity was available but not used. A local planning authority may therefore decline to determine a retrospective application where it overlaps materially with the matters enforced against.

The claimant owned a riverside listed property containing a boathouse, garage and linking structure. After enforcement action, a planning inspector dismissed the claimant’s appeal under ground (a) but varied the enforcement notice under ground (f) to allow removal of the link section and modification of the remaining buildings to comply with existing permissions.

The claimant did not comply with the notice. It later applied for permission for a balcony linking the garage and boathouse. The defendant declined to determine the application under section 70C of the Town and Country Planning Act 1990. The judicial review concerned whether section 70C was engaged and, if so, whether the discretion had been lawfully exercised.

1. Application dismissed. The defendant was entitled to decline to determine the claimant’s application under section 70C of the Town and Country Planning Act 1990.
2. The starting point is the enforcement notice. Under section 173(1)(a), the relevant matters are those stated to constitute the breach, not the remedial steps required by the notice. The inspector’s variation of the remedial requirement did not alter the matters specified as constituting the breach.
3. Section 70C requires an objective comparison between the enforcement notice and the planning application. The exercise involves a limited element of planning judgment, but it is likely in most cases to have a single outcome. The court must first decide whether section 70C(1) is engaged and only then consider how the discretion was exercised.
4. Complete coincidence is unnecessary. Permission for any part of the matters specified in the notice is sufficient. The proposed balcony would retain or incorporate parts of the enforced building, including the slab, lavatory, part of the linking structure and part of its roof. Section 70C(1) was therefore available.
5. The statutory purpose is to prevent tactical appeals and retrospective applications from producing repeated consideration of the same planning merits. The applicant cannot insist on multiple opportunities, but an earlier available opportunity which was not used may also count against a later application. The claimant could have advanced the proposed modification in its ground (f) appeal.
6. The discretion was lawfully exercised. The inspector had found that additional development beyond the approved buildings could not be justified, and the proposed retention and relocation of structural elements raised a clear issue concerning openness in the Green Belt. The defendant’s planning judgment was open to it.