Chesterton v Wokingham
This article was first published in the NAPE newsletter of August 2018.
Case report - Chesterton vs Wokingham BC[1] – s70C TCPA 1990
The High Court recently had another chance to consider the scope of s70C TCPA 1990 and took that opportunity to further restrict the judgment in R(Deep Banghard) vs Bedford Borough Council[2] to its facts. Our article on Deep Banghard was published in the NAPE November 2017 newsletter.
S70C enables LPAs to decline to determine a planning application where to grant permission would involve granting permission for the whole or any part of the matters specified in an enforcement notice. The section was intended to stop appellants using strategic planning applications to delay effective enforcement.
In Chesterton vs Wokingham BC, the appellant was the owner of a very nice spread on the banks of the Thames at Henley which was occupied by its main director. The land is designated green belt, it is in a conservation area and in a prominent location. As well as the main house, there is a 2 storey garage and 2 storey boathouse which were connected by a single storey storage building with a terrace on its roof. The built forms of the garage and boathouse were in line with planning permissions but their linking by the storage building meant that their permissions could not be said to have been implemented.
The appellant applied for retrospective permission for the structure as built in May 2016 and the council served an enforcement notice in June 2016 against the whole structure. The permission application was refused and the enforcement notice was upheld on appeal on the basis that the size, scale and massing meant that it was inappropriate development in the greenbelt context. While complete demolition had been sought, the inspector altered the notice under ground (f) to require the storage building to be demolished and the rest of the structure brought into line with the extant permissions. Time to comply was extended.
Rather than complying, the appellant lodged a further application shortly before the expiry of the compliance period seeking permission for a balcony linking the boathouse and garage. The council declined to determine the application on the basis that it related to matters specified in the enforcement notice. The balcony incorporated elements of the existing store roof. The appellant sought judicial review of the council’s decision.
The judgement contains an interesting review of the purpose of s70C and its related provision, 174(2A), which prevents the ground (a) appeal of an enforcement notice which is issued after a planning application has been made for the matters specified in the enforcement notice. The logic of the two provisions is not to prevent the merits of an unauthorised development being considered at all but rather to ensure that they are considered only once, the proverbial “one bite at the cherry”.
In the Deep Banghard case, the council was prevented from declining an application for retention and storage use of a dwelling building under s70C on the basis that the inspector had already ruled that the permission sought under ground (a) in the enforcement appeal (ie retention as storage) was not something he could decide within the limits of s174(2)(a) as it was not a matter set out in the enforcement notice. Judge Nathalie Levien QC decided that all developers were allowed one chance to have the planning merits of a proposal considered, one “bite at the cherry”.
Banghard has already been significantly restricted by Gilbart J in R (Smith) vs Basildon Borough Council[3].
In Chesterton, Martin Rodgers QC sitting as a deputy judge noted the breadth of the wording of s70C which allowed LPAs a discretion to decline to determine where the application related to the whole or any part of the matters specified in the enforcement notice and noted that these reflected the breadth of the basis for the ground (a) appeal. It was not necessary, he said, that there is complete overlap between the EN breach and the planning application before s70C is engaged. The appellant relied on Banghard where it was suggested that anything more than minor differences would mean that the EN and the PP application related to different matters. The judge rejected this; so long as “any part” (beyond deminimis) of the application related to the same matters as the EN, it could be declined under s70C. Of course, whether it should be declined was a planning judgement and no doubt the differences were relevant to that judgment
Further, the “one bite at the cherry” doctrine in Banghard was qualified in the sense that if the applicant had already had the chance to have the merits of his planning application considered at the enforcement appeal but had failed to take that chance, it was reasonable to decline to determine the planning application. In this case, the appellant could have raised its current scheme as an alternative under ground (f) in the enforcement appeal. Its failure to do so counted against it. This seems a little harsh as the work required to get from the “as built” storage building to the balcony proposal was not insubstantial and it is difficult to see that it would have been a winning approach under ground (f). It seems likely that we will see further litigation on the extent to which theoretical possibilities under ground (f) should be sufficient to engage s70C.
The “whole or any part of” test for appeals under ground (a) is a minefield on which inspectors are not consistent and on which there are some significant court judgments For instance, the inspector in Banghard rightly held that an alternative storage use for a building was not “part of” the dwelling which the enforcement notice alleged had been created. Other inspectors have reached wholly different conclusions focusing on the built form and ignoring the use. If the s70C power is to stand or fall on the “whole or any part of” test, more consistency is required and it seems likely that we may see another spate of litigation on this aspect.
LPAs must also bear in mind that the s70C power is a discretionary one and the question of whether an application covers the whole or part of the matters set out in an enforcement notice is a matter which requires the exercise of planning judgment, rather than an administrative stroke of the pen.
[1] Chesterton Commercial (Bucks) Limited vs Wokingham DC [2018] EWHC 1795 (Admin)
[2] R (Deep Banghard) vs Bedford Borough Council [2017] EWHC 2391 (Admin)
[3] R (Smith) vs Basildon Borough Council [2017] EWHC 2696 (Admin)
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