“THE MATTERS THAT APPEAR TO THE LOCAL PLANNING AUTHORITY [TO] CONSTITUTE THE BREACH OF PLANNING CONTROL 1. Material Change of Use Without the benefit of planning permission the unauthorised change of the use of the Land to residential use and the stationing of caravans and mobile homes. 2. Operational Development Without the benefit of planning permission the unauthorised development of the Land including: a) the laying of hard surfacing b) the storage and breaking of vehicles; and c) the stock piling of hardcore and aggregate”
“The site, which is an unallocated site, is wholly unsuitable for the provision of residential accommodation. The benefits of the use of the site for additional residential accommodation for self-build or for Gypsy and Traveller communities, does not outweigh the significant and well-established harm to the character and appearance of the site and surrounding area in the absence of any exceptions which might justify it. The development is likely to have a significant detrimental impact on the rural character of the area, the adjacent SSSI and Undeveloped Coast, a classified Special Protection Area (SPA)/RAMSAR site. On that basis the uses proposed are clearly contrary to policy. Moreover, the Environmental Agency flood map for planning shows the site as in flood zone 3, an area with a high probability of flooding. The proposed use is classified as highly vulnerable to flood risk and development should not be permitted for such use in flood zone 3 (Table 2 of Food risk and coastal change Government guidance). Even if the site was limited to flood zone 2, for the proposed use a sequential test and then if this was met, an exception test would be required. There is no evidence that it would not be possible to locate the proposed development in alternative low-risk areas to meet the sequential test (and even if it was, it is highly unlikely that the exception test would also be met), such that the grounds for refusal or permission on flood risk grounds would remain. The site itself sits outside of the urban area, located within the open countryside and therefore policies BNE25 and BNE34 of the Local Plan are relevant. These policies seek to enhance the character of the countryside and more particularly in those areas designated as Areas of Local Landscape Importance (ALLI) to ensure that any development does not materially harm the landscape character and function of the area. The site is located within the Riverside Marshes Character Area as set out in the Medway Landscape Character Assessment 2011 (MLCA). This character area is identified as forming an important buffer to the urban edge of Gillingham and protects Natura 2000/Ramsar sites, is a valuable recreational and diversity resource, green corridor from countryside into urban area and is integrally linked to the Lower Rainham Farmland character area. … This proposal would introduce development within an area that was previously open in in appearance and is located within close proximity to the North Kent Marshes Special Landscape Area (Policy BNE45) which are particularly valued landscapes protected by specific policies. The proposal would have an adverse impact on the visual and landscape character of the area and none of the abovementioned policies is supportive of this form of development in this location. The site also falls within the area identified in the Environment Agency flood map for planning as susceptible to tidal flooding. The introduction of mobile homes or caravans in this area would be contrary to Policy CF13 of the Local Plan and should not be permitted in accordance with subsequent Government flood risk guidance, referred to above. It is noted that the current submissions include a Planning Support Statement, a Landscape and Visual Appraisal, a Landscape Policy Assessment and a Preliminary Ecological Appraisal. Consideration has been given to these submissions, but it is not considered that they overcome all the fundamental concerns raised by the development, such that a different conclusion should be reached. This includes recognition that the ALLI designation has limited weight in reaching a decision and that it would be possible to enhance biodiversity of the site, bearing in mind the neglected state of the land and the significant disturbance caused by previous unauthorised development. The development would be in a rural location, harmful to the character and appearance of its surroundings and would be unacceptable with regard to flood risk. Likelihood of success – special circumstances and other considerations The application is stated to be for use by Gypsies/Travellers and although the applicants’ status as Gypsy/Traveller has not been tested, such status has been assumed for the purposes of the preparation of this report. Medway Council undertook a Gypsy & Traveller Accommodation Assessment (GTAA) in 2017 which was completed in 2018 as part of the Local Plan process. The 2018 GTAA showed that there is a shortfall in the provision of sites for Gypsy and Traveller families. An update to this Assessment was commissioned in late 2022 and is still underway, although it is recognised that there is still a shortfall in sites. However, the shortfall in sites does not mean that any given site though receive permission or be tacitly accepted through inaction. Instead, the lack of sites is a consideration to be weighed in the balance when considering whether a site is acceptable. In this case the site is wholly contrary to policy and therefore the lack of sites is not excepted to be sufficient to outweigh the harms and would not justify the granting of permission.”
“(2) An appeal may be brought on any of the following grounds— (a) that, in respect of any breach of planning control which may be constituted by the matters stated in the notice, planning permission ought to be granted or, as the case may be, the condition or limitation concerned ought to be discharged; (b) that those matters have not occurred; (c) that those matters (if they occurred) do not constitute a breach of planning control; (d) that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters; (e) that copies of the enforcement notice were not served as required by section 172; (f) that the steps required by the notice to be taken, or the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach; (g) that any period specified in the notice in accordance with section 173(9) falls short of what should reasonably be allowed.”
“70C Power to decline to determine retrospective application (1) A local planning authority [...] may decline to determine an application for planning permission [or permission in principle] 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 [or permission in principle], a “pre-existing enforcement notice” is an enforcement notice issued before the application was received by the local planning authority.”
“I go back to first principles. The present appeal raises a point of statutory interpretation: what is the ambit of the power conferred on the minister bysection 31(1) of the Landlord and Tenant Act 1985 ? No statutory power is of unlimited scope. The discretion given by Parliament is never absolute or unfettered. Powers are conferred by Parliament for a purpose, and they may be lawfully exercised only in furtherance of that purpose: "the policy and objects of the Act", in the oft-quoted words of Lord Reid in Padfield v Minister of Agriculture, fisheries and Food[1968] AC 997 , 1030. The purpose for which a power is conferred, and hence its ambit, may be stated expressly in the statute. Or it may be implicit. Then the purpose has to be inferred from the language used, read in its statutory context and having regard to any aid to interpretation which assists in the particular case. In either event, whether the purpose is stated expressly or has to be inferred, the exercise is one of statutory interpretation. Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the "intention of Parliament" is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning "cannot be what Parliament intended", they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG[1975] AC 591 , 613: "We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used." In identifying the meaning of the words used, the courts employ accepted principles of interpretation as useful guides. For instance, an appropriate starting point is that language is to be taken to bear its ordinary meaning in the general context of the statute. Another, recently enacted, principle is that so far as possible legislation must be read in a way which is compatible with human rights and fundamental freedoms: seesection 3 of the Human Rights Act 1998 . The principles of interpretation include also certain presumptions. To take a familiar instance, the courts presume that a mental ingredient is an essential element in every statutory offence unless Parliament has indicated a contrary intention expressly or by necessary implication. Additionally, the courts employ other recognised aids. They may be internal aids. Other provisions in the same statute may shed light on the meaning of the words under consideration. Or the aids may be external to the statute, such as its background setting and its legislative history. This extraneous material includes reports of Royal Commissions and advisory committees, reports of the Law Commission (with or without a draft Bill attached), and a statute's legislative antecedents. Use of non-statutory materials as an aid to interpretation is not a new development. As long ago as 1584 the Barons of the Exchequer enunciated the so-called mischief rule. In interpreting statutes courts should take into account, among other matters, "the mischief and defect for which the common law did not provide": Heydon's Case (1584) 3 Co Rep 7a, 7b. Nowadays the courts look at external aids for more than merely identifying the mischief the statute is intended to cure. In adopting a purposive approach to the interpretation of statutory language, courts seek to identify and give effect to the purpose of the legislation. To the extent that extraneous material assists in identifying the purpose of the legislation, it is a useful tool. This is subject to an important caveat. External aids differ significantly from internal aids. Unlike internal aids, external aids are not found within the statute in which Parliament has expressed its intention in the words in question. This difference is of constitutional importance. Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament. This gives rise to a tension between the need for legal certainty, which is one of the fundamental elements of the rule of law, and the need to give effect to the intention of Parliament, from whatever source that (objectively assessed) intention can be gleaned. Lord Diplock drew attention to the importance of this aspect of the rule of law in Fothergill v Monarch Airlines Ltd[1981] AC 251 , 279-280: "The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely upon that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament's real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation." This constitutional consideration does not mean that when deciding whether statutory language is clear and unambiguous and not productive of absurdity, the courts are confined to looking solely at the language in question in its context within the statute. That would impose on the courts much too restrictive an approach. No legislation is enacted in a vacuum. Regard may also be had to extraneous material, such as the setting in which the legislation was enacted. This is a matter of everyday occurrence. That said, courts should nevertheless approach the use of external aids with circumspection. Judges frequently turn to external aids for confirmation of views reached without their assistance. That is unobjectionable. But the constitutional implications point to a need for courts to be slow to permit external aids to displace meanings which are otherwise clear and unambiguous and not productive of absurdity. Sometimes external aids may properly operate in this way. In other cases, the requirements of legal certainty might be undermined to an unacceptable extent if the court were to adopt, as the intention to be imputed to Parliament in using the words in question, the meaning suggested by an external aid. Thus, when interpreting statutory language courts have to strike a balance between conflicting considerations.” "The source to which Parliament must have intended the citizen to refer is the language of the Act itself. These are the words which Parliament has itself approved as accurately expressing its intentions. If the meaning of those words is clear and unambiguous and does not lead to a result that is manifestly absurd or unreasonable, it would be a confidence trick by Parliament and destructive of all legal certainty if the private citizen could not rely upon that meaning but was required to search through all that had happened before and in the course of the legislative process in order to see whether there was anything to be found from which it could be inferred that Parliament's real intention had not been accurately expressed by the actual words that Parliament had adopted to communicate it to those affected by the legislation." That said, courts should nevertheless approach the use of external aids with circumspection. Judges frequently turn to external aids for confirmation of views reached without their assistance. That is unobjectionable. But the constitutional implications point to a need for courts to be slow to permit external aids to displace meanings which are otherwise clear and unambiguous and not productive of absurdity. Sometimes external aids may properly operate in this way. In other cases, the requirements of legal certainty might be undermined to an unacceptable extent if the court were to adopt, as the intention to be imputed to Parliament in using the words in question, the meaning suggested by an external aid. Thus, when interpreting statutory language courts have to strike a balance between conflicting considerations.”
“It is implicit in the argument for the Minister that there are only two possible interpretations of this provision—either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case. I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.”
“30 Section 70C of the 1990 Act confers a wide discretionary power on local planning authorities to decline to determine a retrospective planning application for a development, subject to an enforcement notice. The legislative history of section 70C demonstrates that Parliament’s intention was to provide a tool to local planning authorities to prevent retrospective planning applications being used to delay enforcement action being taken against a development. It seems to me that there is a legislative steer in favour of exercising the discretion, especially since an enforcement notice can be appealed and the planning merits thereby canvassed. Since delay is the bugbear against which the section is directed, a claimant’s actual motives to use a retrospective planning application to delay matters is clearly a consideration in favour of a decision to invoke section 70C. 31 There may be factors pointing against exercising the discretion in section 70C of the 1990 Act to decline to determine an application which for a local planning authority to ignore would open their decision to a public law challenge. Examples might be where for legitimate reasons there has been a failure to appeal an enforcement notice and the development is plainly compliant with planning provisions (for example, they have been patently misapplied or have changed) or the development can readily be made acceptable by the correct planning conditions. However, section 70C is far from being a gateway for applicants to canvass the full planning merits: it is a discretion to decline to determine those merits, not a discretion to determine them. 32 In this case there is no real evidence that the claimant was badly advised at the time, or unaware of the opportunity to appeal the enforcement notice. There have been no statements from her in this litigation, except for a short statement on a matter of no direct relevance. In any event, the claimant’s right of appeal and the time limits and grounds of appeal were clearly stated on the enforcement notice itself. The fact is that the claimant has a long history of engagement with the planning process, including with enforcement action. It was a reasonable inference for the council to draw that the application for retrospective planning approval was to delay effective enforcement yet further, in relation to residential units which have now been there for over five years, without planning approval. The council was entitled in coming to conclusions about the claimant’s intention to take into account that she had not sought pre-application advice, and that her expressed wish, in the Frampton’s covering letter of21 March 2014 , was that in light of the retrospective planning application any prosecution would be “held over”.”
“40. First, in my judgment, the words of the 1990 Act s.70C are clear. They permit a local planning authority to decline to determine an application for planning permission for unauthorised development if that would involve granting permission in respect of matters which a “pre-existing enforcement notice” relating to the land specified as constituting a breach of planning control. A pre-existing enforcement notice is defined in the 1990 Act subs.70C(2) as “an enforcement notice issued before the application was received by the local planning authority”
“However, where the relevant merits have not been determined, section 70C is not designed to prevent them being considered. Thus, in Ioannou v Secretary of State for Communities and Local Governments[2014] EWCA Civ 1432 , it was held that, in an enforcement appeal, it is open to an inspector to grant an appeal under ground (g) to allow time for a planning application to be made for something outside the development with which the notice itself is concerned. Sullivan LJ, giving the judgment of the court, said (at [38]): “If, as in the present case, an alternative scheme is put forward which is not part of the matters stated in the enforcement notice as constituting a breach of planning control, but which the Inspector considers may well be acceptable in planning terms, he can follow the course which the inspector adopted in the present case: allow the appeal under ground (g) and extend the period for compliance with the notice so the planning merits of the alternative can be properly explored.”
“29 The purpose of section 70C is, as explained by Lewis J in O’Brien’s case [2016] JPL 656, to ensure that the applicant cannot insist on two separate considerations of the planning merits by having a right to appeal the refusal of planning permission and an appeal against the EN on effectively the same grounds. As Cranston J put it in Wingrove’s case[2015] PTSR 708 , the applicant cannot have multiple bites of the cherry. However, in the present case the effect of the council’s interpretation of section 70C is that rather than the claimant having multiple bites of the cherry he has had none. He has not been able to have the planning merits of the storage building he now wishes to construct considered by the local planning authority and ultimately on appeal. The inspector on the EN appeal could not consider them because he had an EN against residential use before him and the ground (a) appeal could only relate to that use, and the council’s decision to rely on section 70C means that the claimant cannot have the matter considered under section 70 of the TCPA as would usually be the case. 30 In terms of the correct approach to section 70C, I do not agree with Mr Smyth that Parliament intended to balance some potential unfairness against the need for effective enforcement action. Rather the parliamentary intention was to ensure fairness in all cases, because an applicant could have his or her application determined under either the EN appeal or through the medium of the planning application but not both. If this approach is taken there is no necessary unfairness in any individual case and in every case the individual can have the application determined. There may of course be cases where the developer fails to appeal, as happened in Wingrove’s case, and section 70C can still be used. But in such cases the developer had a full opportunity to a fair process and did not avail himself of it. There may also be cases where the developer makes a very minor change from what was considered in the enforcement appeal, whether in terms of a minor change to the nature of the use applied for or a minor change to the built form. In those circumstances it will be open to the local planning authority to rely on section 70C. Such a decision will indeed involve the exercise of planning judgment by the authority. However, on the facts of this case I think the position is clear. The matter specified in the enforcement notice as constituting the breach was the unauthorised erection of a dwelling house. Planning permission was for a storage use, so in my view it cannot be said on the facts of the case, that section 70C could lawfully be engaged. 31 On the facts of the present case, it is correct, as Mr Smyth says, that the claimant chose not to implement the 2010 permission and therefore is to some extent the author of his own misfortune. However, it seems to me that that is beside the point in analysing the correct approach to section 70C. The fundamental principle must be that an individual can have their application determined once. 32 The planning authority under section 70C does have a wide discretion and there is necessarily an element of planning judgment in whether the development for which permission is being sought involves “any part of the matters specified” in the EN as constituting the breach of planning control alleged. However, on the facts of this case I do not see how it can properly be said that the permission sought for a storage building is part of the breach of planning control in the EN, namely the erection of a dwelling house. The fact that some part of the building is the same and it is on the same footprint is not sufficient to mean that part of the matters is specified in the EN. 33 If one takes the statutory purpose as to be to ensure that effective enforcement cannot be avoided or delayed by those in breach of planning control having multiple bites of the cherry, then it is easy to see on the facts of this case why that situation does not arise. The EN inspector was clear that he did not have the power to consider the proposed storage use within the section 174 EN appeal. That is a very clear indication that the storage use was not part of the matters being enforced against. The point is further strengthened by the fact that there are also proposed to be changes to the building itself, so that it becomes suitable for a storage use.”
“60Section 70C(1) is not concerned with the steps which the enforcement notice requires to be taken, or the activities which must cease, in order to remedy the breach or any injury to amenity which has been caused by the breach. In this case the inspector modified the enforcement notice (which required the removal of the whole building) by permitting an alternative course of remedial action (the removal of only the link section). That modification had no effect on the matters specified in the notice as constituting a breach of planning control. I therefore approach with some caution the submission of Mr White that, because of the modifications to the notice allowed by the inspector, the focus ought to be on the extent to which the original store room and the new balcony raised distinct planning considerations which required separate consideration. In practice it may not make much difference (because section 70C(1) allows consideration of any part of the land to which the enforcement notice relates) but in principle the inspector’s modification of the remedy is irrelevant, and what is important is the breach specified in the enforcement notice. 61Having identified the matters specified as constituting the breach, section 70C(1) then invites a comparison between those matters and the development to which the retrospective application for planning permission relates. The purpose of the comparison is to identify any overlap between the matters enforced against and the subject of the retrospective application. It is clear that something very much less than a complete coincidence between the matters enforced against and the matters for which permission is sought will be sufficient to engage section 70C(1). It is enough that the retrospective application relates to “the whole or any part of the land” to which the enforcement notice relates, and that granting it would involve granting permission for “the whole or any part of” the matters specified in the enforcement notice. 62In the course of argument both counsel agreed that the question whether section 70C was capable of being relied on involves an element of planning judgment. I accept that submission, which is consistent with thedecision in Banghard’s case[2018] PTSR 1050 , but I would qualify it in two respects. The first is that the matters to be considered are of objective matters requiring a comparison between two documents, the enforcement notice and the application for planning permission. Making that comparison necessarily involves a judgment, possibly on a number of factors, but it remains a relatively limited exercise which is likely in most cases to be capable of only a single outcome. Secondly, and as a result, it seems to me to be important not to approach the application of section 70C as if it involves simply a single exercise of the authority’s discretion. Where reliance on the provision is challenged it is necessary to consider first whether the circumstances described in section 70C(1) exist, so that the discretion to decline to determine an application is available, before considering any complaint about the manner in which the discretion has been exercised. In their submissions both parties tended to elide these stages.”