R (O’Brien) – v – South Cambridgeshire Council and the Secretary of State for Communities and Local Government [2016] EWHC 36 (Admin), 22 January 2016

This case involved applications for retrospective planning permission.  Localism Act 2011 Section 123 amends Town and Country Planning Act 1990  by adding a new Section 70C which reads as follows:-

Power to decline to determine retrospective application

(1) A local planning authority in England may decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control.

(2) For the purposes of the operation of this section in relation to any particular application for planning permission, a ‘pre-existing enforcement notice’ is in an enforcement notice issued before the application was received by the local planning authority.

Article 9 of the relevant Order which deals with transitional and other provisions regarding the new Section 20C states:-

(1)  In a case where, before 6th April 2012, an enforcement notice has been issued under section 172 of the 1990 Act (issue of enforcement notice) and not withdrawn under section 173A of that Act (variation and withdrawal of enforcement notices) and either or both of the following sub-paragraphs apply –

a) An appeal under section 174 of the 1990 Act (appeal against enforcement notice) has been made against that notice; or

b) An application for planning permission for the development of any land to which that enforcement notice relates has been made after the date on which that notice was issued, section 123 (2) and (3) of the Act (retrospective planning permission) shall not apply to that case.

The local authority in this case had issued an enforcement notice on 22nd June 2005.  An appeal was lodged but then withdrawn.  Subsequently the Claimant made a planning application on 28th March 2015 and the local authority declined to deal with this application on the basis of the above statutory provisions.

It was argued that, where an enforcement notice had been served prior to 6th April 2012 then, provided there was a subsequent planning application, that planning application would have to be dealt with by the local authority.

Mr Justice Lewis did not accept this proposition.  He stated that:-

…dealing with Article 13 (1) (b) of the Order, the enforcement notice had to have been issued before the 6th April 2012 and an application for planning permission had to have been made after issue of the enforcement notice but before the 6th April 2012 if the case was to fall within that sub-paragraph (para 27).

He also stated that:-

…there is no realistic basis in which it can be said that the consequences of interpreting section 70C of the 1990 Act, and the provisions of the Order, as applying in cases where an enforcement notice was issued before 6th April 2012, and where an application for planning permission for the unauthorised development had not been made before that date, was so unfair that Parliament cannot have intended the relevant provisions to be construed in that way (para 34).

Looking at the reasons for the amendments brought in by the Localism Act, he stated:-

The common thread underlying both parts of section 123 of the 2011 Act, therefore, is the introduction of mechanisms to prevent the applicant being able to insist upon more than one consideration of the underlying planning merits of a development in circumstances where the planning authority have issued an enforcement notice specifying that the development constitutes a breach of planning control.

On that basis, the wording, and indeed the purpose, of section 70C of the 1990 Act do apply to the present case… If the Claimant subsequently makes an application for planning permission for that development, the planning authority is not obliged to determine that application.  The planning authority has a discretion to do so (for example, where the development plan has changed, or other material planning considerations have changed, so that the underlying planning merits may be different and it may be appropriate to grant planning permission for the unauthorised development) (paras 43 and 44).

Comment

This decision is extremely disappointing since TAT interprets the provisions of section 70C and the relevant Order to mean that planning applications can still be made after 6th April 2012 in these circumstances.  It is understood that the Claimant is considering appealing against this decision.

Please see the attached Judgment:-