Declining to determine planning applications - effective use of s70C

I recently came back to work after a beautiful summer break. More or less the first thing I had to do was deliver a talk on the use of s70C – not exactly a slow start! It is a relatively new provision which many in the planning world can find confusing, as evidenced by a number of successful judicial review cases. Used correctly, though, it is a powerful weapon in the hands of the planning authority. This article explains how the section works and gives some practical tips to those using it.

S70C in one sentence

S70C allows a council, if it wishes to, to refuse to determine a planning application for development that is already subject to an enforcement notice.

It was introduced in 2012 with the aim of preventing tactical games and delay in the enforcement of planning control. At the same time, s174 was also amended to prevent a ground (a) appeal where a retrospective application for planning permission had already been determined: this is the mirror image of s70C. It is not to be confused with ss70A and 70B, which apply to repeat applications for planning permission outside an enforcement context.

The courts have been clear that using s70C involves a two stage process – first to ask does it apply, second to ask whether it should be exercised.

Does s70C apply?

S70C will apply if the following there questions are answered ‘yes’ in relation to the application for planning permission:

?      Is there a pre-existing enforcement notice in respect of the whole or any part of the land?

?      Was the notice issued after 6 April 2012? (If no the section can still apply but unlikely - see R (O Brien) v South Cambridgeshire DC [2016] EWHC 36 on the transitional provisions)

?      Is planning permission sought for “the whole or any part of the matters specified in the enforcement notice as constituting the breach of planning control”?

The third question is the one most likely to pose a difficulty. The question is whether there is any overlap between the breach of planning control (note: not necessarily the requirements) specified in the notice and the development now applied for. Use and operational development have to be looked at together, so that (on the law as it stands now) seeking permission for the same or a similar building but in a modified use is unlikely to engage s70C.

Should s70C be used?

S70C provides that the council may decline to determine an application when it is engaged. The authority therefore has a discretion. That discretion, however, has to be exercised lawfully and with care. The courts have provided some guiding principles:

?      No obligation to use s70C but a “legislative steer” in favour once it is engaged;

?      A wide discretion but LPA subject to general public law duties;

?      Aim is to prevent applicant having “two bites of the cherry”, not to shut out any consideration at all – should not be used so as to cause unfairness to applicants;

?      However, not a gateway for applicants to canvas the full planning merits.

Factors to consider include the following:

?      Is there/could there have been a ground (a) appeal against the notice?

?      What is the motivation of the applicant?

?      Has the notice been complied with?

?      How similar are the two developments? The greater the difference, the greater the public interest in determination.

?      Has planning policy changed materially since the notice was issued? If so, may weigh in favour of determination.

?      If the application relates to only part of notice development, would that part alone be enforced?

 Some practical pointers

 Applicants for planning permission faced with the possibility of the use of s70C would be well advised to put in a detailed statement explaining why it does not apply and/or should not be used. This will make it more difficult for the authority to take an arbitrary decision not to determine.

 From the authority’s point of view, there is no requirement to give reasons for use of s70C, but it is generally advisable to prepare a delegated report setting out the reasons in full. Given the complexity of the provision and the possibility of challenge by way of judicial review, it is generally a good idea to take legal advice on any such report. Otherwise, the cases show that the prospect of a successful challenge may well be high.

 Cain Ormondroyd is a barrister at Francis Taylor Building, specializing in all aspects of planning and land valuation, with a particular focus on planning enforcement.