Thomas Connors, R (on the application of) v Bromley Borough Council

The discretion under section 70C of the Town and Country Planning Act 1990 is broad once its statutory conditions are met. It permits a local planning authority to decline to determine an application which overlaps with an extant enforcement notice, even where planning policy or the planning merits have changed. A changed planning policy will not invariably be an obviously material consideration requiring express consideration. Whether it must be considered depends on the facts, including the enforcement history, the state of the land and the authority’s legitimate enforcement objectives. Legally adequate reasons need not explain why a decision-maker disregarded a matter which it was entitled to treat as irrelevant.

The claimant sought judicial review of the defendant local planning authority’s decision under section 70C of the Town and Country Planning Act 1990 to decline to determine a retrospective application for a traveller site. The site was subject to two extant enforcement notices issued in 2019, which had not been complied with. The claimant relied on substantial changes to national planning policy concerning traveller sites and grey belt land. He argued that the authority had acted inconsistently with section 70C’s purpose, failed to consider an obviously material change in policy, and failed to give adequate reasons for disregarding it. Permission was granted on all three grounds, but the substantive claim was dismissed.

1. Disposition. Permission for judicial review was granted on all three grounds, but the claim was dismissed. The claimant was ordered to pay the defendant’s costs of £7,700.01. Permission to appeal was refused.
2. Purpose and scope of section 70C. The statutory power is triggered where there is a pre-existing enforcement notice and the application seeks permission for development which wholly or partly includes a breach identified in that notice. Its purpose is to prevent repeated consideration of the planning merits of an enforced breach. Once triggered, section 70C gives the authority a broad discretion. The decision is reviewable for public law unreasonableness, including failure to consider something so obviously material that it required consideration, and failure to give legally adequate reasons.
3. Planning merits and changed policy. Section 70C contains no fresh-claim test and does not invariably require an assessment of the application’s planning merits. On the facts, the authority was entitled to focus on the planning history, the continuing defiance of the enforcement notices, the absence of any reset of the land, and the legitimate objective of preserving its ability to enforce. The December 2024 changes to national planning policy were not an obviously material consideration which the authority was legally bound to address. The position might differ if the enforcement position had been reset.
4. Reasons. Since the policy change was not an obviously relevant consideration in the circumstances, the authority was not required to explain why it had not considered it. The reasons sufficiently identified the extant notices, the previous planning history, the prevention of further appeals and the objective of pursuing enforcement.