Banghard, R (on the application of) v Bedford Borough Council [2017] EWHC 2391 (Admin)

Case No CO/4939/2016[2017] EWHC 2391 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 September 2017
Before
MS NATHALIE LIEVEN QC(sitting as a Deputy High Court Judge)
Between
THE QUEEN (on the application ofClaimantMR DEEP BANGHARD)ClaimantBEDFORD BOROUGH COUNCILDefendant
Ms Annabel Graham Paul (instructed by Muhammad Gaffar of Bond Adams) for ClaimantJack Smyth (instructed by Harjit Gill of Bedford Borough Council) for DefendantHearing Hearing dates: 19 th July 2017
JudgmentMs Lieven QC :
[1]This is an application for judicial review of the decision of the Defendant (“the Council”), on 22 August 2016 to decline to determine a planning application, pursuant to s.70C of the Town and Country Planning Act 1990 (“the TCPA”). The application was dated 22 July 2016 and was for “alteration to the building and use of building for storage (“Class B8”)”.[2]The two issues in the case are whether the Council had the power under s.70C to decline to determine the application and, if they did have the power, whether they exercised it rationally on the particular facts before them.[3]In 2010 the Council had granted planning permission for the “erection of outbuilding for the purpose of storing vehicles”. The Claimant did construct a building on the site, and indeed on the same footprint as the building which is the subject of the permission. However, it was the Council’s view that that building was being used as a dwelling house and was not in the same form as the permitted building.[4]On 2 July 2015 the Council issued an enforcement notice (“EN”) pursuant to s.172 of the TCPA. The breach of planning control alleged in the EN was “Without planning permission the unauthorised erection of timber-clad self-contained dwelling house shown edged in green on the attached plan”. The requirements of the EN were to “(i) …cease residential use of the building … (ii) demolish the building… and (iii) remove permanently the resulting materials from the land after compliance with step (ii)”.[5]The Claimant appealed the EN under s.174 TCPA on grounds s.174(2)(a), (b), (f) and (g). The Inspector dealt first with ground (b), the allegation that the breach had not occurred. The Claimant (at that point the appellant) argued that although the building was now being used as a dwelling it had been erected and used as a storage building, albeit that subsequently the use had been changed to a dwelling house. The Inspector rejected this argument, finding at Decision Letter paragraph 16 (“DL16”) that the 2010 planning permission had not been implemented and the building had been constructed as a dwelling house, without any intervening use. He further found that the building had not been constructed in accordance with the approved plans and was materially different from the approved building. “16. When the differences described above are taken together the building, as constructed, is materially different to that approved in terms of its size, appearance and functionality. It is taller; the roof pitch is steeper; the internal volume is much greater; a different roof covering has been used; the vehicular access was not provided; and the specification of the roof trusses and use of cavity walls go beyond what would normally be necessary for a simple storage building. Consequently, on the balance of probability, I conclude that the 2010 permission was not implemented. Rather, the design of the building would indicate that it was not intended for storage purposes but was constructed as a dwelling without any intervening use.”[6]The Inspector then considered the ground (a) appeal, that planning permission should be granted for the breach of planning control. The claimant argued that if the Inspector was minded to dismiss the deemed application for a dwelling house, then a holiday occupancy condition should be imposed. The Inspector indicated some doubt about whether he would be entitled to take that course under s.177, but in any event he found that there was no policy support for such a residential use or for a holiday house use. He therefore dismissed the ground (a) appeal.[7]The Inspector next considered the ground (f) appeal. The Claimant argued that it would be excessive to require the demolition of the building, and that the EN could be altered to require adherence to the 2010 permission. In respect of this argument the Inspector said as follows:
“60. The appellant contends that it would be excessive to require the demolition of the building and that the notice could be altered to require adherence to the 2010 permission. In essence, the ground (f) appeal invites me to grant planning permission for the 2010 development under ground (a) and amend the requirements of the notice under ground (f). However, for the reasons set out in relation to the ground (b) appeal, I have concluded that the development did not accord with the 2010 permission and that the alleged breach has occurred as a matter of fact. In other words, the building was erected as a dwellinghouse. Consequently, the 2010 permission was not commenced and that permission has now expired. There is no ‘fall-back’ position in relation to the 2010 permission. 61. Whilst Inspectors have relatively wide powers to determine if there is an acceptable solution short of the complete remedy of the breach, those powers do not enable me to grant of planning permission for a development other than for those matters stated in the notice as constituting the breach of control, whether in relation to the whole or any part of those matters. In closing submissions the appellant acknowledges that ‘it is a little strained to find that the matters in the 2010 permission form part of the matters constituting the breach’. I cannot conclude that the 2010 permission forms part of the alleged breach; not only is the building considerably different in form and functionality, the proposed use is different to that alleged in the notice. …. 63. Therefore, it is not open to me to grant planning permission for the 2010 … 64. Following the submission of the enforcement notice the appellant submitted two planning applications relating to the appeal site to the Council. The first proposed the erection of a holiday home with storage and home office at first floor level ancillary to the main dwelling at Vicarage Farm and the second proposed the erection of a building for the storage of agricultural equipment. The Council declined to determine both of those applications under powers granted by section 70C of the Act. The powers granted under s70C enable a council to refuse to determine an application if granting planning permission would involve granting planning permission in respect of the whole or any part of the matters specified in an enforcement notice as constituting a breach of planning control. The reasons for their actions were set out in a letter to the appellant dated 11 November 2015 and the conclusions of that letter were that the proposals would involve granting planning permission in respect of the whole or part of the matters specified in the notice 65. In relation to the refusal to determine the agricultural store the Council put forward arguments to the Inquiry to the effect that there was no evidence that the building was erected as an agricultural store and that the building was not in accordance with the approved plans of the 2010 permission. In effect, their case to the Inquiry was that the 2010 permission did not form part of the development as constructed. Their arguments in that respect would appear to contradict the decision they took in relation to s70C of the Act. That said, I note that part of the appellant’s case was that the 2010 permission was implemented and subsequently converted to residential use, thereby representing a fall-back scenario. In that respect, the status of the 2010 permission was clearly of relevance to the alleged breach. Had I found with the appellant on that point, I would have concluded that the 2010 permission had been implemented and there would have been no need to consider the need to grant planning permission for the development. 66. However, regardless of the above, it is beyond the scope of this Inquiry to determine whether the Council’s refusal to determine the applications was legitimate. It would have been open to the appellant to seek a judicial review of the Council’s decision. Furthermore, the Council’s decision in relation to s70C does not alter my conclusions on the question of whether the 2010 permission forms part of the alleged breach. For the reasons set out I conclude that it does not. 67. The Council noted at the Inquiry that the purpose of the notice was to remedy the breach of planning control, as opposed to remedying any injury to amenity. Having regard to my comments above, I find that no lesser steps are available that would remedy the breach. Accordingly, the appeal on ground (f) must fail.”
[8]The Inspector extended the time for compliance in respect of the physical building under ground (g) for steps (ii) and (iii) to 9 months, but upheld the EN.[9]After the appeal decision the Claimant submitted the planning application (16/02301/FUL) which is the subject of this judicial review. That application is for a storage use of the building, thus the same use as was granted permission in 2010. The application included material changes to the building. It was not possible on the material before me to be confident about all the physical changes from the building that had been constructed, but it was clear that the door was to be an “up and over” roll door, and the application made clear that the roof was to be lowered.[10]The Council declined to determine this application under s.70C, as they also had done on the earlier application referred to in the Inspector’s decision letter. The decision under s.70C was made under delegated powers, but there is a fairly detailed report setting out the reasons for the making of this decision.[11]The relevant parts of the Council report state as follows:
“6. Approval of the application would therefore result in granting planning permission in respect of part of the matters specified in the enforcement notice as constituting the breach of planning control (i.e. retention of the building, albeit in an altered form, required to be demolished by the Enforcement Notice).”
The report then set out some of the background and the policy position for agricultural storage and said:
“15. In my professional opinion the planning application would almost certainly be refused, being contrary to the development plan and with no case being made in the application for other material considerations that would outweigh the conflict with the development plan. 16. Should the Council be required to consider this application and it refuses it, any subsequent appeal would delay the Council’s ability to pursue compliance with the EN in the courts, would require the Council to re-present its case and incur further costs associated with doing so. It could also be seen as an attempt wear down opposition to an undesirable development with no real prospect of success, noting in particular that the proposal is essentially an attempt to retain a lower version of the same building with some fenestration changes. In all likelihood, given the limited resources of the Council, the opportunity cost of pursuing this matter would result in other cases not being pursued.”
The report then set out its conclusions which effectively repeated the same points.[12]It is this decision which is the subject of the judicial review.

The law

[13]Section 70C was inserted into the TCPA by 123(2) of the Localism Act 2011 and came into force on 6 April 2012. It states as follows:
“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.”
[14]Section 70C has only been considered in a small number of cases. In Wingrove v Stratford on Avon District Council [2015] EWHC 287 the EN required the residential use of the building in issue to cease, and the building to be demolished. Mrs Wingrove did not appeal the EN but then submitted a retrospective application for planning permission to retain the residential accommodation subject to an occupancy condition. The local planning authority declined to determine the application under s.70C. Mrs Wingrove applied for judicial review on the basis that she had been badly advised in respect of the EN, and that there were now good reasons to grant permission. In that circumstance it was argued by the Claimant that the local planning authority had acted unlawfully in declining to determine under s.70C.[15]Cranston J refused the judicial review. The following two passages are the most important for present purposes: “21. In an illuminating article on the history of the relevant legal provisions, Professor Michael Purdue suggests that although an application for retrospective planning permission might appear unnecessary when the enforcement notice can be appealed, it might still be made for tactical reasons: Professor Michael Purdue, "Reform of the Enforcement of Planning Control: Where Are We Now?" [2012] J.P.L. 795. Section 70C, he states, was directed at the problem of delay under the existing provisions. Of the situation where an application for retrospective planning permission is made where enforcement action has already been taken, Professor Purdue writes: "The purpose must be to prevent a retrospective applications being made just to delay enforcement. It seems that if the service of an enforcement notice leads to a retrospective application being made, this can cause delay. This is because if there is an appeal against the enforcement notice (which is of course very likely) and the planning application is refused, the two appeals will normally be conjoined … However, the Government spokesman accepted when discussing this new power in s.123 [i.e. 70C], that it should not be used in the case of a genuine mistake when it had not been realised that the development was in breach of planning control or, as the Secretary of State for Communities and Local Government put it, is there to: ‘protect the gormless but deter the greedy’." Professor Purdue’s analysis seems correct since, as Ms Paul observed in her written grounds, Parliament amended the 1990 Act s.174 at the same time to provide that, if a retrospective planning application has been made, but an enforcement notice has been issued before the time for making a decision has expired, there cannot be an appeal against the enforcement notice under s.174(2)(a). In other words, the applicant cannot have multiple "bites at the cherry". … Discussion30. Section 70C 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 s.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 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 s.70C.31. There may be factors pointing against exercising the discretion in s.70C 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, s.70C is far from being a gateway for applicants to canvass the full planning merits. It is 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 were 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 of March 21, 2014, was that in light of the retrospective planning application any prosecution would be "held over".” "The purpose must be to prevent a retrospective applications being made just to delay enforcement. It seems that if the service of an enforcement notice leads to a retrospective application being made, this can cause delay. This is because if there is an appeal against the enforcement notice (which is of course very likely) and the planning application is refused, the two appeals will normally be conjoined … However, the Government spokesman accepted when discussing this new power in s.123 [i.e. 70C], that it should not be used in the case of a genuine mistake when it had not been realised that the development was in breach of planning control or, as the Secretary of State for Communities and Local Government put it, is there to: ‘protect the gormless but deter the greedy’." Professor Purdue’s analysis seems correct since, as Ms Paul observed in her written grounds, Parliament amended the 1990 Act s.174 at the same time to provide that, if a retrospective planning application has been made, but an enforcement notice has been issued before the time for making a decision has expired, there cannot be an appeal against the enforcement notice under s.174(2)(a). In other words, the applicant cannot have multiple "bites at the cherry".

Discussion

[16]Section 70C was also considered by Hickinbottom J (as he then was) in R (Seventeen de Vere Gardens Management Limited) v London Borough of Kensington and Chelsea [2016] EWHC 2869. The facts of the case are largely irrelevant and the fact that the decision was quashed turned on an error in the officer’s report, however the Judge made some comments on the correct approach to and purposes of s.70C and referred to the judgment of Lewis J in R (O’Brien) v South Cambridgeshire District Council [2016] EWHC 36 (Admin):
“32 Thus, in respect of section 70C, as Lewis J recently emphasised in R (O'Brien) v South Cambridgeshire District Council [2016] EWHC 36 (Admin) at [41] and [44]: ‘41. … [T]he logic of the provision is clear. The aim is to ensure that the applicant cannot insist upon having two separate considerations of the underlying merits, namely by having a right to appeal any refusal of planning permission and a right to appeal against the enforcement notice on the ground that planning permission should be granted. The intention is that the applicant cannot insist on more than one determination of the underlying planning merits of the development. That is the mischief, or abuse, that section 70C of the 1990 Act is intended to remedy. … 44. …The Claimant is able to insist upon only one consideration of the underlying planning merits of the development, and that is done by appealing against the enforcement notice. 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 some 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).’ As Cranston J pithily put it in R (Wingrove) v Stratford-upon-Avon District Council [2015 EWHC 287 (Admin) at [21], so far as merits are concerned: “[T]he applicant cannot have multiple ‘bites of the cherry’”. 33 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.”
That is not in conflict with the aims and purpose of section 70C . The main proposition derived from Ioannou , so far as the issues in this claim is concerned, is that for an inspector to allow an appeal under ground (g) to allow an appellant time to bring an effective appeal under ground (a) is not in itself incongruous; and, dependent upon the circumstances, it may be entirely appropriate.” ‘41. … [T]he logic of the provision is clear. The aim is to ensure that the applicant cannot insist upon having two separate considerations of the underlying merits, namely by having a right to appeal any refusal of planning permission and a right to appeal against the enforcement notice on the ground that planning permission should be granted. The intention is that the applicant cannot insist on more than one determination of the underlying planning merits of the development. That is the mischief, or abuse, that section 70C of the 1990 Act is intended to remedy. … “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.” That is not in conflict with the aims and purpose of section 70C . The main proposition derived from Ioannou , so far as the issues in this claim is concerned, is that for an inspector to allow an appeal under ground (g) to allow an appellant time to bring an effective appeal under ground (a) is not in itself incongruous; and, dependent upon the circumstances, it may be entirely appropriate.”[17]The principles to apply to the consideration of officer’s reports on planning applications are extremely well known and do not need to be repeated, see for example Hickinbottom J in R (Zurich Assurance) v North Lincolnshire Council [2012] EWHC 3708 (Admin). This case concerns a decision made under delegated powers, but the principles in Zurich Assurance and the cases referred to therein apply to the extent that the report sets out the local planning authority’s reasons.

Submissions

[18]Ms Graham Paul who represented the Claimant, had two closely related grounds of challenge. The first was that s.70C was not engaged on the facts of this case, and therefore the Council had acted outside their jurisdiction. The basis of the argument was that s.70C only applied where planning permission was sought for “the whole or any part of the matters specified in the enforcement notice as constituting the breach of planning control”. The matters so specified in the EN here were “the unauthorised erection of a detached timber-clad self-contained dwelling house”. The planning application however is not for a dwelling house, but rather for a storage building. Therefore, she argued that s.70C was not engaged because the matters specified in the EN were entirely different from those in the planning application.[19]The Claimant relies heavily on what the Inspector said about the building having been constructed as a dwelling house, and therefore stating that he was unable under ground (f) to consider the planning merits of a storage building. The Claimant also relied on the Inspector’s view that the Council’s position, at the inquiry, was inconsistent because they maintained that the building had been erected as a dwelling house, but at the same time had refused to determine a planning application for a storage building.[20]Although Ms Graham Paul accepts that some parts of the building were to be retained under the application, and that the building applied for is on the same footprint as the building the subject of the EN, she says that those facts are irrelevant to the issue of whether s.70C is engaged.[21]The second ground is that the Claimant argues it is irrational for the Council to exercise its discretion to refuse to determine under s.70C. She essentially relies on the same facts as under ground one, namely that the use proposed in the planning application is completely different from that enforced against, and that the Claimant has not had the opportunity to have the planning merits of the storage application determined. She argued that this is not the type of case to which the statutory purpose is directed, that is where an applicant seeks use a planning appeal to cover the same matters as were, or could have been, raised in a ground (a) appeal and thereby delay enforcement action.[22]She also argued that the view in the officer’s report that the application would be likely to be refused is irrelevant under s.70C. The Council is taking an oppressive and unreasonable approach and therefore denying the Claimant the right to have a potentially acceptable application determined.[23]Mr Smyth, for the Council, started by emphasising the breadth of the words in s.70C and in particular the words “whole or any part of the …..” as being an indicator of the breadth of the local planning authority’s discretion under the statute. Second, he argued that in deciding what fell within the scope of s.70C there had to be an element of planning judgement, and that judgement was entirely for the Council rather than for the Court. Third, he relied on what he said was the statutory purpose of the provision, namely to prevent delay in enforcement action. He relied on the comments of Cranston J in Wingrove at paragraphs 30-31 and the list of examples given at paragraph 31, although he accepted that this was a non-exhaustive list. Fourth, he pointed to the explanation in the officer’s report at paragraph 5 that the building was on the same footprint and had a similar design to that enforced against.[24]He accepted that there was some unfairness to the Claimant on the facts of this case, because he was denied the opportunity to have his storage application determined. However, Mr Smyth argued firstly, that that right was trumped by the requirement to first obey the EN. Mr Smyth’s argument was that the Claimant was under an obligation to obey the EN, and that there was no unfairness whilst he continued not to do so. Therefore the Claimant should first remove the building and then apply for a new building with a storage use.[25]Secondly, Mr Smyth argued that the Claimant had obtained permission in 2010 for a storage building, but had chosen to erect the dwelling house under cover of the 2010 permission. Therefore the loss of the ability to implement the 2010 planning permission was a direct consequence of the Claimant’s decision to erect the dwelling. In those circumstances he has been the author of his own misfortune. However, Mr Smyth accepted after questions from me that the fact of the 2010 permission could not go to ground one, and the engagement of s.70C, but only to ground two if ground one failed.[26]Thirdly, he argued that it was an inevitable consequence of the broad way that s.70C was framed that there could be some unfairness in an individual case. But that any such unfairness should be balanced against the public interest in ensuring that ENs are obeyed. He argued that the priority must be that the EN is obeyed.[27]On ground two Mr Smyth made five points, many of which overlap with those set out above. Firstly, the building was on the same footprint and was substantially the same building as that enforced against. Secondly, the matter was one of planning judgment for the Council. Thirdly, the need to maintain public confidence in the enforcement system and avoid delay was a very strong consideration. Fourthly, the Claimant had obtained planning permission in 2010 and then cynically used it as a cover for the erection of the dwelling. Fifthly, he relied on the comments the Inspector had made about the Claimant’s evidence at the inquiry and its apparent implausibility, at DL14. Finally, Mr Smyth argued that although the prospects of success would rarely be determinative on an s.70C decision they were capable of being relevant.

Conclusions

[28]The issue under the first ground is whether granting planning permission for the 2017 application would involve granting permission “in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control”. I agree with Mr Smyth that there must be an element of planning judgement involved in this question, as it is necessary to consider what are the matters specified in the enforcement notice. However, in deciding this issue it is important to have closely in mind the purpose of s.70C and ensure that it is not used in a way that is clearly unfair to an applicant for permission and is outside the statutory purpose.[29]The purpose of s.70C is as explained by Lewis J in O’Brien v South Cambridgeshire District Council [2016] EWHC 36, 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 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. 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 s.70C means that the Claimant cannot have the matter considered under s.70 TCPA as would usually be the case.[30]In terms of the correct approach to s.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, and s.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 s.70C. Such a decision will indeed involve the exercise of planning judgement 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 s.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 s.70C. The fundamental principle must be that that an individual can have their application determined once.[32]The planning authority under s.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 those 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 s.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.[34]Mr Smyth argued that if s.70C was not construed in the way he suggested then individuals could avoid effective enforcement action by putting in subsequent applications for a range of uses and thus stopping the planning authority from bringing the unauthorised development to an end. It is correct that in most cases if there is an outstanding appeal the planning authority will not seek to take steps to enforce the EN, for example prosecution or injunction proceedings, until the appeal is determined. However if it was clear that an individual was making successive spurious applications for the purpose of avoiding s.70C, then it would be open to the planning authority to put the facts before the Magistrates or the civil court and to take further action. Therefore I do not think that preventing s.70C being used in a case such as the present will undermine either its effectiveness, or the ability of local planning authorities to properly enforce.[35]For these reasons I allow Ground One.[36]Given that I have found that the Council had no jurisdiction to decline to determine the application under s.70C the issue of whether or not they acted Wednesbury unreasonably does not arise. However, even if they had still had technical jurisdiction I would have found that it was unreasonable to refuse to determine in circumstances where the Inspector had made clear, at the Council’s urging, that he did not have jurisdiction to consider a storage use. I agree with the Inspector that the Council is seeking to have the matter both ways, by relying on s.70C whilst at the same time arguing the Inspector did not have jurisdiction to consider the storage use because it was not the use in front of him. The end result is to deny the Claimant his right to have his application determined even once.[37]The test of irrationality is a high one, particularly in the context of decisions which involve an element of planning judgment. As Cranston J said in Wingrove the authority has a wide discretion as to whether to use s.70C or not. However, it must still exercise that discretion rationally and to achieve the purposes of the statute. It cannot simply use s.70C because it is quicker and cheaper than determining the application and thus risking a further appeal.[38]I have closely in mind the importance of ensuring effective and reasonably speedy enforcement action, not least to maintain public confidence in the planning system. It does appear that the Claimant used the 2010 consent as a cover for instituting a residential use on the site, in plain breach of planning control. However, on the facts of this case I do not consider that the Claimant’s conduct make it lawful and rational for the Council to deny him a determination of the storage application. Although the officer’s report says the planning application would “almost certainly” be refused, it is relevant that planning permission was granted by the Council for a storage use in 2010. It therefore cannot sensibly be said that the application was hopeless or obviously made simply to defer the proper operation of the enforcement process.[39]For these reasons I also find for the Claimant on Ground Two, that it was irrational to rely on s.70C on the facts of this case.

Cited in 6 later judgments