Sam Smith, R (on the application of) v South Kesteven District Council

Town and Country Planning Act 1990, section 70C gives a local planning authority a wide discretion to decline to determine an application concerning matters previously subject to enforcement action on the same land. The supervisory review has two stages: whether the statutory gateway is open, and whether the authority lawfully exercised its planning judgment. At the second stage, the authority asks whether new material raises new points warranting reconsideration. It need not conduct a full planning merits assessment or a fresh section 38(6) balance. Policy change, pitch need, personal circumstances, mitigation, equality and Convention rights may be relevant, but need not require reconsideration where the authority rationally finds no material difference. The court will not reweigh those matters, and a challenge faces a high threshold.

The claimant renewed permission to challenge the council’s decision to decline determination of a planning application under section 70C of the Town and Country Planning Act 1990. The application concerned a proposed 13-pitch Gypsy and Traveller site. An earlier enforcement appeal had considered the planning merits, including noise, odour, living conditions, need and personal circumstances, and had resulted in refusal of permission.

The later application contained new reports and mitigation proposals, involved different intended occupants, and was made against a background of policy change and increased pitch need. The grounds alleged irrationality, failure to consider relevant matters, errors concerning environmental permit conditions, denial of a fair hearing, interference with Article 8 rights, failure to comply with the Public Sector Equality Duty, and failure to consider a later planning appeal. The central issue was whether those matters required a fresh consideration of the planning merits.

Disposition. The renewed application for permission was refused on all grounds. None of the grounds was arguable.

1. Section 70C framework. The power under section 70C of the Town and Country Planning Act 1990 was wide, but had to be exercised lawfully, rationally and compatibly with Convention rights. The court applied the two-stage approach in Chesterton Commercial (Bucks) Ltd v Wokingham District Council [2018] EWHC 1795 (Admin). First, the statutory gateway had to be open because the new application concerned matters previously subject to enforcement proceedings on the same land or part of it. Secondly, the authority had to exercise its planning judgment lawfully. Following R (on the application of Moran) v Medway Council [2026] EWCA Civ 484, relevant considerations could be taken into account, obviously material matters could not irrationally be ignored, and weight remained for the authority.
2. Noise and odour. The second-stage exercise did not require a full appraisal of the planning merits. The council had to consider whether the new material raised new points warranting reconsideration. The environmental protection officer had considered the revised noise evidence, the difference between park homes and mobile homes, and the proposed bund and fencing. The conclusion that there was very little material difference was adequately reasoned and was not arguably irrational.
3. The officer also considered the arguments concerning the maggot farm’s environmental permit. A detailed investigation into permit enforcement or a fresh planning merits assessment was unnecessary. The conclusion that the permit arguments did not warrant reconsideration was lawful and rational.
4. Planning balance. A fresh planning balance under section 38(6) of the Town and Country Planning Act 1990 was not a mandatory part of a section 70C decision. Policy changes, increased pitch need, mitigation and personal circumstances could inform the broader comparison, but did not automatically require a new merits assessment. The previous appeal had already given weight to need and personal circumstances, and the council was entitled to find no material difference.
5. Rights and equality. The fair-hearing and Article 8 grounds depended on the rejected contention that the planning circumstances had materially changed. The Public Sector Equality Duty did not require a separate detailed evaluation or express reliance where the officer’s report, read in context, showed awareness of the occupants’ status, circumstances and need. The court applied R (on the application of Buckley) v Bath and North East Somerset Council [2018] EWHC 1551 (Admin).
6. A later planning appeal concerned a different site and planning context and was not a mandatory consideration. A split decision was not requested during the application process and was not an arguable factor in the section 70C exercise. The remaining irrationality ground therefore also failed.