Teresa Baker, R (on the application of) v Reigate and Banstead Borough Council

Section 70C of the Town and Country Planning Act 1990 gives a local planning authority a broad discretion to decline a later application covering development subject to a pre-existing enforcement notice. Its purpose is to avoid a second determination of the underlying planning merits. A change in policy, including new Green Belt or traveller-site policy, does not by itself create an obviously material consideration requiring reconsideration or a full merits assessment. The authority must still address any consideration that is obviously material and may act irrationally if it fails to do so.

Where Article 8 is engaged, the court makes its own proportionality assessment. It may respect the authority’s judgment, but must decide whether the measure is necessary and strikes a fair balance. On the facts, refusing to determine the application was proportionate despite the families’ vulnerability and cultural interests.

The claimant sought judicial review of the council’s decision under section 70C of the Town and Country Planning Act 1990 to decline a second retrospective application for a Gypsy/Traveller caravan site. An earlier application had been refused, and conjoined planning and enforcement appeals were dismissed in May 2023. The enforcement notices remained outstanding.

The second application relied on changes to national policy, including the grey-belt concept, revised traveller-site policy, a wider definition of Gypsies and Travellers, and the possible operation of the tilted balance. The issues were whether the council had failed to consider obviously material matters, acted irrationally, or made a disproportionate interference with Article 8 rights.

The claim was rejected.

1. Section 70C of the Town and Country Planning Act 1990 confers a broad discretion to decline an application which would involve granting permission for development covered by a pre-existing enforcement notice. The Court of Appeal’s reasoning in R (On the application of Moran) v Medway Council and the Secretary of State [2026] EWCA Civ 484 established that the statutory purpose is to prevent an occupier requiring a second determination of the underlying planning merits. R (Connors) v London Borough of Bromley [2026] EWHC 1517 (Admin) confirmed that the discretion is not subject to a fresh-claim test.
2. The discretion remains reviewable for irrationality. The categories of considerations identified in R (Friends of the Earth Ltd) v Secretary of State for Transport [2020] UKSC 52 applied. A failure to address a matter so obviously material that it requires direct consideration may invalidate the decision. However, changed policy or changed underlying planning merits did not, in this context, create an obligation to determine the second application. The absence of any reset, while the enforcement notices remained uncomplied with, was material.
3. The earlier Inspector’s decision did not establish that the Site was grey belt. The grey-belt concept did not exist when that decision was made, and the Inspector had not addressed all the cumulative requirements for non-inappropriate Green Belt development. In any event, the council had considered the claimant’s arguments on grey belt and unmet need. Even if those matters had been obligatory considerations, the council was not required to give fuller reasons in the section 70C context where no actual error had been shown.
4. For proportionality, the court applied the four-stage approach stated in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs [2026] AC 607 and R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department [2014] UKSC 60. The court made its own assessment, while giving appropriate respect to the council’s judgment. The guidance on the Article 8 rights and cultural identity of Gypsies and Travellers in Bromley LBC v Persons Unknown [2020] PTSR 1043 was taken into account. Even assuming that the application had a realistic prospect of success, refusing to determine it was the least intrusive measure compatible with section 70C’s objective and struck a fair balance. The claim therefore failed on all three grounds.

1. Planning appeal: The claimant’s planning and enforcement appeals were conjoined and dismissed by an Inspector’s Decision Letter dated 11 May 2023.
2. High Court (Planning Court): Permission was refused on the papers by Mould J on 23 February 2026 and granted on renewal by Sir Peter Lane on 2 April 2026. The judicial review claim was then rejected.