KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE KING on the application of PATRICK MORAN |
Claimant |
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- and - |
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MEDWAY COUNCIL |
Defendant |
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Mr James Neill (instructed by Legal Services Medway Council) for the Defendant
Hearing date: 22 January 2025
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Crown Copyright ©
Mr Justice Kerr :
Introduction
"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."
"an enforcement notice issued before the application was received by the local planning authority."
The Facts
Submissions
"The legislation is not limited to cases where the application for planning permission is triggered by the service of an enforcement notice and can be characterised as an attempt to delay the enforcement process."
"… the consequences for future decision-making on applications for planning permission and appeals in which the relevant exclusion is engaged will inevitably depend on the particular circumstances of the case in hand. In every such case it will be for the decision-maker – whether a local planning authority or an inspector – to assess when striking the planning balance what weight should be given, as material considerations, to the relevant exclusion and to such justification for its discriminatory effect as obtains at the time, and also to undertake such assessment as may be required under Article 8 of the Convention. As is always so, the result of that process of decision-making will emerge from the facts and circumstances of the individual case."
Reasoning and Conclusions
(1) The section 70C discretion is available where a pre-existing enforcement notice overlaps in subject matter with a subsequent planning application.
(2) Whether it does or not involves an element of planning judgment, but requires only a simple comparison often with only one possible outcome.
(3) The section may apply whether or not the enforcement notice was appealed by the applicant or by a previous owner.
(4) Its purpose is to limit the current or a previous owner to one opportunity to have a determination of the planning merits of the matters enforced against.
(5) The considerations to which the LPA will have regard are a matter for the LPA; if a consideration is relevant, it may be taken into account.
(6) However, some considerations may be so obviously material that it would be irrational not to have regard to them.
(7) Identifying any considerations of the latter type (see (6) above) is a question of fact in each case.
(8) Subject to the overarching requirement of rationality, the weight to be given to any particular consideration is a matter for the LPA.
(i) the local plan policies to protect the countryside and rural character of the land
(ii) the enforcement history including past applications and direct action;
(iii) changes to national and local policies since the local plan;
(iv) whether there was a realistic chance the application would succeed on its merits, if entertained;
(v) flood risk;
(vi) an acknowledged shortfall in sites for gypsies and travellers;
(vii) the personal circumstances of the claimant's son and his schooling (given no weight because it previously been taken into account); and
(viii) that the planning merits had not been tested (given little weight because of the enforcement history).
Disposal
Note 1 Ramsar is the Iranian city on the Caspian Sea where the Ramsar Convention on Wetlands took place in 1971. An intergovernmental treaty was made with the aim of conserving wetlands and biodiversity. [Back]