Derek Kelly, R (on the application of) v West Oxfordshire District Council

In planning enforcement, the judicial review time limit runs from the decision first giving rise to the grounds unless later correspondence contains a genuinely fresh decision. New evidence or repeated arguments do not suffice. An authority’s reasons may be read across a chain of correspondence, so a later letter need not repeat earlier reasoning. Intentional unauthorised development is a material consideration in deciding whether to enforce. A failure to address it will not justify permission where the authority in fact considered the issue or, applying the Senior Courts Act 1981, it is highly likely that the outcome would have been unchanged. A departure from an earlier inconsistent planning decision requires reasons, while rationality challenges to planning judgment face a high hurdle.

Derek Kelly, R (on the application of) v West Oxfordshire District Council concerned a renewed application for permission to bring judicial review proceedings against the Council’s refusal to take enforcement action over a garage/store and extensions at a neighbouring property. The Council had refused permission for the garage in 2024, but a planning inspector allowed the owner’s appeal. After correspondence in 2025 and a surveyor’s report, the Council’s letter of 12 February 2026 maintained that enforcement was unnecessary. The claimant said that letter was a fresh decision and challenged the treatment of intentional unauthorised development, the unexplained departure from the earlier refusal, and the rationality of the planning judgment. The court had to decide whether the claim was in time and, if so, whether the grounds were arguable.

Permission refused. The claim was out of time, and the substantive grounds were in any event unarguable.

1. The relevant question was whether a fresh decision had actually been made in February 2026, not whether one ought to have been made. Applying R (Arnold White Estates Ltd) v Forestry Commission [2023] PTSR 242, correspondence that merely articulates an existing decision does not restart time. A genuine internal review of the kind described in Inclusion Housing Community Interest Co v Regulator of Social Housing [2020] EWHC 346 (Admin) would be different, but the February letter contained no indication of such a review. The relevant evidence and allegations had been raised earlier. The court therefore identified decisions in June and August 2025 and found the claim out of time.
2. On the assumed basis that the February letter was fresh, the Written Ministerial Statement made intentional unauthorised development a material consideration in deciding whether to take enforcement action. Reading the Council’s correspondence as a whole, however, its statement that intention was irrelevant concerned the question of planning harm and did not show that the allegation had been ignored. In any event, applying sections 31(3C) and (3D) of the Senior Courts Act 1981, it was highly likely that the outcome would have been the same because the officers considered the absence of planning harm decisive.
3. The principle in North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P&CR 137 required reasons where a proposed planning decision departed from an earlier inconsistent decision. The Council’s August 2025 letter gave sufficient reasons, relying on the inspector’s assessment and further officers’ site visits. The later letter did not need to repeat that reasoning.
4. A rationality challenge to planning judgment faced the high hurdle described in R (on the application of Newsmith Stainless Steel Limited) v Secretary of State for the Environment, Transport and the Regions [2001] EWHC 74 (Admin). There was no process irrationality because the Council had considered the earlier decision in the correspondence chain. Permission to apply for judicial review was refused.

Permission to apply for judicial review was previously refused on the papers. The claimant renewed the application before the High Court (Planning Court), which refused permission.