Teresa Casey & Anor, R (on the application of) v Crawley Borough Council

Section 70C of the Town and Country Planning Act 1990 confers a discretionary power to decline a planning application where permission would overlap with matters covered by a pre-existing enforcement notice. The discretion must be exercised fairly and rationally, having regard to the statutory purpose of preventing repeated applications from delaying enforcement.

That purpose does not require automatic refusal whenever an enforcement notice exists. The authority must consider the chronology, the opportunities previously available to address the planning merits, changes in those merits, and any relevant challenge to an earlier planning decision. A decision to decline determination may engage Article 8 rights indirectly by affecting the right to a fair determination, even where it is not itself a direct interference with private or family life.

The claimants, Irish Travellers occupying land in Crawley, renewed an application for permission to judicially review the council’s decision dated 16 May 2024 to decline to determine a further planning application under section 70C of the Town and Country Planning Act 1990.

An enforcement notice had been upheld in part, and earlier planning applications and appeals had addressed the proposed Gypsy and Traveller site. An earlier temporary permission was quashed by consent, and a subsequent appeal was dismissed on flood-risk grounds. The claimants challenged the council’s reliance on the extant enforcement notice, its treatment of the planning merits and the pending statutory challenge, and the effect of its decision on their Convention rights.

1. Permission. Ground 1 was arguable. Ground 2 was not arguable on its own merits. Ground 3 was permitted to be pursued and was arguable only to the extent identified below.
2. Section 70C is discretionary. Its purpose is to prevent the forestalling of enforcement through multiple applications and appeals where applicants have had sufficient opportunity to address the planning merits. The existence of an enforcement notice does not, however, make refusal inevitable.
3. In exercising the discretion, the authority must consider the chronology and circumstances as a whole. Relevant matters may include whether the applicant previously had a fair opportunity to pursue planning permission, whether that opportunity was deliberately or tactically abandoned, and whether the planning merits have materially changed. The judge considered it arguable that the council had failed to give adequate weight to the fact that the first planning application had been made while the enforcement appeal was still pending, and that later proceedings had altered the planning position.
4. The council was required to examine the nature and apparent merits of the pending section 288 challenge to the later appeal decision. It was not required to predict the outcome of that challenge. This ground was nevertheless not arguable on its own merits.
5. The decision not to determine the application was not a direct interference with Article 8 rights, because the relevant Article 8 merits arose within the enforcement and planning proceedings. It was arguable, however, that the decision directly affected the claimants’ right to a fair hearing or determination and therefore arguably affected their Article 8 rights in that limited sense. The Article 6 argument was not separately developed in the permission conclusion.
6. The parties were directed to draw up an order reflecting the judgment.

This was a renewed application for permission to apply for judicial review. Permission had previously been refused on the papers by Mr Justice Eyre on 9 August 2024.