s70C- Decline to determine
This post was first published in November 2017.
The High Court recently gave some guidance on the the application of s70C of the TCPA 1990, the power to decline to determine retrospective planning applications. R (Deep Banghard v Bedford Borough Council [2017] EWHC 2391 (Admin) was an application for judicial review of a decision by Bedford BC to decline to determine an application.
As a reminder, s.70C of the 1990 Act was inserted by s123(2) of the Localism Act 2011. It was introduced as a measure to avoid delays in achieving effective planning enforcement due to multiple retrospective applications. Developers subject to enforcement notices would make retrospective applications for permission with the aim of delaying the need for compliance with the enforcement notice and/or delaying the council’s ability to take further action for non-compliance.
The appellant obtained planning permission in 2010 for erection of an outbuilding for storing vehicles. A subsequent investigation found that the building was used as a dwelling. Bedford BC issued an enforcement notice, subsequently upheld on appeal, which alleged the construction of a dwellinghouse. The appellant’s case under his ground (b) appeal was that there was an intervening storage use of the building (in accordance with the 2010 permission) prior to conversion to a dwelling. This ground failed as the Inspector concluded, on the balance of probabilities, that the earlier permission was never implemented. The building constructed was materially different in size, appearance, and functionality to that permitted. The Inspector considered that the design of the building would indicate that it was not intended for storage purposes, but was built as a dwelling without the claimed intervening storage use. The 2010 planning permission, not implemented, had lapsed by the time of the enforcement appeal.
The Inspector then considered Mr Banghard’s ground (f) appeal, which objected to the requirement to demolish the building. The Inspector was effectively invited to grant permission for 2010 development under ground (a) and amend the requirements of the notice under ground (f). Under s177, Inspectors only have power to grant permission under ground (a) for something which forms part of the breach stated in the enforcement notice. As the ground (b) findings were that the 2010 planning permission was not implemented, the Inspector could not conclude that the 2010 permission formed part of the matters alleged in the enforcement notice. The Inspector, therefore, did not have the option to grant permission and the ground (f) appeal failed.
By the time of the inquiry, the appellant had made two planning applications for retention of the building for holiday home and storage uses and the council had decided not to determine these applications under s70C. These could not be considered at the inquiry. After the inquiry, he submitted a further application for retention of the building for storage, which the council again declined to determine. It is this latter decision that was judicially reviewed.
From the appellant’s point of view, it can easily be seen why he might feel aggrieved that his proposals could not be considered at the inquiry but nor, it seemed, could he have them considered under the planning application system. From the council’s point of view (as detailed in the delegated report), the applications were simply a delaying tactic to avoid compliance with the notice.
In her ruling, Deputy High Court Judge Nathalie Lieven QC highlighted the relevant sections of the council officer’s s70C report, which referred to the application proposal involving the retention of the building which was enforced against, albeit modified, and as such (said the officer), formed part of the matters specified in the notice. Secondly, the officer analysed the merits of the storage use, suggesting that planning permission would not be granted should the application be allowed to be determined.
Mr Banghard said that s.70C was not engaged on the facts of the case. He said that the planning application proposed an entirely different scheme, i.e. a storage use, and not a dwelling as alleged in the enforcement notice. The Inspector’s findings in the ground (f) appeal, confirming that he could not assess the merits of a storage building (because it was not implemented or alleged), were heavily relied on. He also made an irrationality argument.
The council said that whether the schemes were the same was a planning decision, which was for the council rather than the court. While there was an element of unfairness arising from the inability to get the planning merits considered, that arose from the appellant’s own decision not to implement the 2010 permission and was in any case outweighed by the need for effective planning enforcement. There could be no unfairness while the notice had not been complied with.
The Judge agreed with the Council that the s70C question was, to a certain degree, a planning judgement for the authority, but added that it is important to bear in mind that the decision must not be clearly unfair to an applicant.
She disagreed with the Council that there is a need to balance a degree of potential unfairness against the need for effective enforcement action. She confirmed that the Parliamentary intention was to ensure fairness in all cases. An applicant can have the planning merits assessed either via an appeal against an enforcement notice or a planning application, but not both, and not neither.
The case is interesting for the arguments which were rejected. It was irrelevant, for instance, that Mr Banghard had chosen not to implement an earlier planning permission which had since lapsed. It was irrelevant that he had arguably used the 2010 permission to cover up subsequent unlawful development. It is also interesting that the judge considered that councils should not shy away from action for non-compliance where successive spurious applications are made. Such applications should not prevent eg prosecutions.
Ultimately, Judge Lieven concluded in this case that the application for a storage use was not in respect of the whole or any part of the development alleged in the enforcement notice, which involved the construction of dwelling. She found therefore, that the Council’s decision to decline to determine application was not correct on the facts of the case. The Council did not lawfully engage s.70C.
Cherries played an important role in the decision, mentioned no less than 5 times. As the judge put it,
“As Cranston J put it in Wingrove the applicant cannot have multiple bites of the cherry. However in the present case the effect of the Council's interpretation of s.70C is that rather than the Claimant having multiple bites of the cherry, he has had none.”
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