Patrick Moran, R (on the application of) v Medway Council

Section 70C of the Town and Country Planning Act 1990 permits a local planning authority to decline a planning application where it overlaps with matters specified in a pre-existing enforcement notice. Its purpose is to prevent an applicant or successor in title from obtaining more than one determination of the underlying planning merits. The power is not confined to applications intended to delay enforcement, or to cases involving the same applicant. The statutory discretion is open-textured. Any relevant consideration may be taken into account, but only a consideration so obviously material that it would be irrational to disregard it is mandatory. The weight given to relevant considerations is for the authority. A change of ownership, ignorance of the planning history, cessation of the breach, or improved application materials does not itself frustrate the statutory purpose.

The claimant, the owner of land subject to a 2017 enforcement notice, challenged Medway Council’s decision of 9 November 2023 to decline to determine his planning application under section 70C of the Town and Country Planning Act 1990. The application sought residential use of the land for caravans and mobile homes, together with associated buildings.

The enforcement notice had required clearance and restoration of the site. The council had previously declined several applications and had ultimately used direct action to clear the site in 2022. The claimant argued that the breach had ceased, that he had not been able to appeal the enforcement notice, that the planning merits had changed, and that several matters were mandatory considerations. The central issues were the statutory purpose of section 70C and whether the council had unlawfully disregarded mandatory relevant considerations.

1. The claim was dismissed. The council had lawfully exercised its section 70C discretion.
2. Section 70C applies where a pre-existing enforcement notice overlaps in subject matter with a subsequent planning application. Determining overlap involves an element of planning judgment, but ordinarily requires a simple comparison of the enforcement notice and application, often with only one possible outcome.
3. The section may apply whether the enforcement notice was appealed by the present applicant, by a predecessor in title, or not at all. Planning restrictions run with the land. A successor cannot insist on a fresh determination merely because they acquired the land later or were unaware of its planning history.
4. The statutory purpose is to limit the current or a previous owner to one opportunity to have the planning merits of the matters enforced against determined. The purpose is not confined to preventing delay caused by repeated applications, nor is it defeated merely because the enforcement notice was complied with by direct action or the breach later ceased. Compliance does not discharge an enforcement notice under sections 181(1) and 181(2) of the Town and Country Planning Act 1990.
5. No considerations are expressly or impliedly mandatory or excluded by section 70C. The authority may take into account any relevant consideration. However, a consideration becomes mandatory where it is so obviously material that failure to consider it would be irrational, applying the familiar Wednesbury standard. The identification of such a consideration is fact-sensitive. The weight given to it remains for the authority.
6. The council had considered the enforcement history, planning policies, flood risk, the shortfall in gypsy and traveller sites, personal circumstances, the likelihood of planning permission, and the fact that the merits had not previously been tested. The claimant’s motive, the changed definition of travellers, the matters arising from Lisa Smith, five-year housing supply, temporary permission, updated flood-risk information, absence of objections, and express discussion of policy H13 were not mandatory considerations on these facts.
7. The claimant’s arguments substantially challenged the planning judgment and merits of the application. They did not establish irrationality or unlawful disregard of mandatory considerations. The Padfield challenge also failed.