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

Section 70C of the Town and Country Planning Act 1990 may apply where a planning application is prospective, or where an enforcement notice has already been complied with or enforced by direct action, provided the application overlaps with matters identified in the notice. Its purpose is to prevent repeated consideration of the planning merits, rather than merely to prevent delay. The authority must first make an objective comparison between the notice and the application. If section 70C is engaged, it has a broad discretion whether to decline determination. A full merits assessment is unnecessary, but obviously material matters must be considered. An immaterial error will not invalidate the decision where other independent reasons remain.

The appellant, a Gypsy or Traveller, acquired land subject to a pre-existing enforcement notice concerning unauthorised residential use, caravans, hardstanding and related works. After the site had been cleared by direct action, he submitted a prospective planning application for residential use and associated development. Medway Council declined to determine it under section 70C of the Town and Country Planning Act 1990.

Kerr J dismissed the judicial review claim: [2025] EWHC 350 (Admin). The appeal concerned the proper construction and statutory purpose of section 70C, including whether it applied after the breach had been remedied and whether the Council had failed to consider mandatory material considerations.

The appeal was dismissed. Lord Justice Dove gave the judgment, with Lord Justice Arnold and Lord Justice Peter Jackson agreeing.

1. Construction and scope. Applying the principles of statutory interpretation in R v Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme Limited [2001] 2 AC, section 70C applied on its ordinary wording. The application sought permission for matters identified as breaches in a pre-existing enforcement notice. The provision was not limited to retrospective applications, did not exclude prospective development, and remained available after compliance with the notice or direct action by the authority.
2. Statutory purpose. The purpose of section 70C was to prevent an applicant insisting upon more than one consideration of the underlying planning merits of the same breach. Prevention of delay, gaming the system and uncertainty about planning status were collateral benefits, not the exclusive statutory purpose. The principle in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 was therefore not infringed.
3. Decision-making framework. The authority must first ask whether there is a pre-existing enforcement notice relating to the whole or part of the application site and whether the application includes, wholly or partly, development identified in that notice. If so, the authority has a discretion either to decline determination or to accept and determine the application. The comparison is objective, while the subsequent discretion is broad and subject to ordinary public law controls.
4. Material considerations. A full planning merits assessment was unnecessary. The Council nevertheless considered the relevant planning material, including Gypsy and Traveller need and environmental harm. Failure to identify policy H13 expressly was not material. The flood-zone error did not affect the exercise of discretion because several other independent reasons supported the decision. The absence of objections from statutory consultees and the possibility of enforcement delay were not obviously material mandatory considerations in the circumstances.
5. The approach in O’Brien, Seventeen De Vere Gardens, Banghard and Chesterton was consistent with that analysis. All three grounds of appeal were rejected.

1. Court of Appeal (Civil Division): Dove LJ dismissed the appeal, with Arnold LJ and Peter Jackson LJ agreeing.
2. High Court of Justice, King’s Bench Division, Planning Court: Kerr J dismissed the judicial review claim and upheld the Council’s decision to decline determination under section 70C of the Town and Country Planning Act 1990: [2025] EWHC 350 (Admin).