“The aforementioned appeals considered the planning merits of the use now proposed and the current application is made on the basis that national policy and other considerations of the case have changed and/or ought to be reconsidered. Firstly, changes to national planning policy and traveller definition are cited. However such changes are not infrequent and do not compel reconsideration of a case. The Council has no unmet need for traveller pitches, let alone a demonstrable one (as per NPPF para 155), the site is not previously developed land and is not identified or designated as grey belt. The use therefore continues to comprise inappropriate development in the green belt which should only be approved in very special circumstances. The personal circumstances of the appellants are cited as very special circumstances but their situation has not changed significantly since the appeal hearing, in terms of their health, education, traveller status or otherwise. The current application fails to demonstrate why an alternative decision should be made from that of the previous appeal decisions, where the issues were robustly examined. Section 70C of the Town and Country Planning Act gives local planning authorities the power to decline to determine applications that are the subject of a pre-existing enforcement notice, as is the case here. The powers exist as a measure to avoid delays in achieving effective planning enforcement due to multiple retrospective applications which is also considered relevant in this case. The powers are discretionary and, having considered all the relevant arguments for the application and considerations made, it is considered that they ought to be exercised in this case, in the public interest. In declining to determine the application the Council has had due consideration of its duties under theEquality Act 2010 and theHuman Rights Act 1998 ….”
“70C (1) A local planning authority 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 an enforcement notice issued before the application was received by the local planning authority.”
“[116]… A useful summation of the law was given by Simon Brown LJ in R v Somerset County Council Ex p Fewings[1995] 1 WLR 1037 , 1049, in which he identified 3 categories of consideration as follows: ‘the judge speaks of a “decision maker who fails to take account of all and only those considerations material to his task”
‘What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the [relevant public authority] as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.’
“[118] … assessment of the proportionality of a measure which interferes with a Convention right involves the application of a four-stage test... (i) is the aim sufficiently important to justify interference with a fundamental right? (ii) is there a rational connection between the means chosen and the aim in view? (iii) was there a less intrusive measure which could have been used without compromising the achievement of that aim? (iv) has a fair balance been struck between the rights of the individual and the general interest of the community? A significant question may arise regarding the margin of appreciation to be afforded to the decision-maker in making the relevant judgment about what measure or measures are appropriate to deal with the particular matter of concern being addressed. [120] … the court has to make its own assessment whether a measure is proportionate to a legitimate aim. If the measure is not proportionate... it will be incompatible with the relevant Convention right and its adoption by the relevant public authority will be unlawful as contrary to section 6 (1) of the HRA. The question of whether the action taken by the public authority is lawful or not is what the court has to decide on a challenge.... the question whether an act is incompatible with a Convention right is a question of substance for the court itself to decide; The court's function is not the conventional one in public law of reviewing the process by which a public authority reached its decision... the question is whether there actually has actually been a violation of Convention rights and not ‘whether the decision maker properly considered the question of whether the applicant's rights would be violated or not’... In this sense, it can be said that the court's function is not merely a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected itself or acted irrationally or was guilty of procedural impropriety. [121] However, in a challenge based on Convention rights under the HRA to action by a public authority, it is not accurate to say that the court becomes the primary decision maker in the full sense of that term… The court's role is to assess the lawfulness of the authority's action against the substantive legal criteria which are inherent in the Convention rights, including the criterion of proportionality. The public authority decides on the action it will take, and hence is the primary decision maker; but the court makes its own assessment whether such action is proportionate, and hence lawful, or not. [122] Accordingly, although the court will have regard to and may afford a measure of respect to the balance of rights and interests struck by the public authority in assessing whether the test at stage (iv) is satisfied, it will not treat itself as bound by the decision of the public authorities subject only to review according to the rationality standard:… This reflects the features that the Convention rights are freestanding rights enacted by Parliament to be policed by the courts, that they are in the form of rights which are enforced by the European Court of Human Rights on a substantive basis rather than purely as a matter of review as according to a rationality standard, and that the question whether a measure is proportionate or not involves a more searching investigation than the application of the rationality test. Thus, in relation to the test of proportionality stricto sensu, even if the relevant decision-maker has had regard to all relevant factors and has reached the decision which cannot be said to be irrational, it remains open to the court to conclude that the measure in question fails to strike a fair balance and is disproportionate. [123] This account explains how it is that, in the context of the proportionality assessment to be carried out by the court, there is room for the appropriate respect and weight to be given to the views of the executive or the legislature as to how the balance between the interests of the individual and of the general community should be struck, depending on the nature of those respective interests…. [124] …. the context relevant to determining the measure of respect to the balance of rights and interests struck by a public authority will include the importance of the right, the degree of interference and the extent to which the courts are more or less well placed to adjudicate, on grounds of relative institutional expertise and democratic accountability. [125] It is fair to say that this approach to the assessment of proportionality, bringing into account as it does the respective constitutional responsibilities of the courts and the public authority whose actions are under challenge and their respective institutional competencies, and involving a spectrum between elements of substantive decision-making and elements of review on on the part of the courts, can on occasion lead even experienced judges into error... A judge conducting a proportionality assessment needs to take care in the language they use to explain how they have approached the task overall and also their consideration at the particular elements which are relevant to that assessment. It is to be hoped that the recapitulation of the proper approach in this section of our judgement will provide clear guidance.”
“..the court must indeed exercise its own judgement. Of course, it may defer to the [decision-maker’s] assessment of the risks involved and of the consequences, should the risks materialise. But that does not relieve the court of the duty to confront frankly the stark questions whether, given those risks and consequences, it (as opposed to the decision-maker) has been persuaded that the measures are no more than is required to achieve the stated object and that the fair balance has been struck.”
“(a) The occupation of a caravan by a member of the Gypsy and Traveller community was an ‘integral part of her ethnic identity’ and her removal from the site interfered with her art 8 rights not only because it interfered with her home, but also because it affected her ability to maintain her identity as a Gypsy (para 73); (b) There was an emerging international consensus amongst Council of Europe States recognising the special needs of minority communities and the obligation to protect their security, identity, and lifestyle (para 93); (c) Members of the Gypsy and Traveller community were in a vulnerable position as a minority, with the result that ‘special consideration should be given to their needs and their different lifestyle’; to that extent there was a positive obligation on States to facilitate the Gypsy way of life (para 96); (d) The fact that a home had been established unlawfully was highly relevant (para 102); (e) If no alternative accommodation is available, the interference was more serious than where such accommodation is available (para 103); (f) Individuals affected by an enforcement notice ought to have a full and fair opportunity to put any relevant material before the decision maker before enforcement action was taken (para 106).”
“Of course, there may be other consequential or collateral benefits arising from this purpose of the statutory provision. Those will depend upon the very many circumstances, which cannot be exhaustively defined, in which the discretion under section 70C of the 1990 Act may arise. Those benefits may include providing clarity and certainty to the planning status of the land the subject of the enforcement notice. A further benefit may be the prevention of unnecessary delay to enforcement action or precluding an occupier seeking to game the system or wear down the local planning authority. At its heart, however, it is clear that the purpose of section 70C is to preclude any requirement that there be two separate considerations of the underlying planning merits of a breach of planning control in circumstances where the local planning authority have issued an enforcement notice against that breach of planning control prior to the submission of any application in respect of that breach.”
“The next issue raised is the question of the consideration of the merits of a new application. This was a matter which was assessed by the officers. Whilst the exercise of the section 70C discretion did not require a full appraisal of the planning merits of the application, the respondent did review the planning merits of the material which were comprised in the application.”
“insofar as any challenge to the exercise of that discretion pursuant to section 70C…concerns a rationality challenge to the exercise of planning judgement, this, presents a high hurdle for a claimant to surmount: see the observations of Sullivan J….in paragraph 7 of R (on the application of Newsmith Stainless Steel Limited) v Secretary of State for the Environment, Transport and the Regions[2001] EWHC 74 (Admin) …”
“The whole point of s.70C is that it is addressing whether the LPA is going to determine the planning application on its planning merits. Parliament has empowered the LPA to decline to do so. There is no circumscription of the discretion, based on the apparent strength of the merits. There is, within the statute or policy or the caselaw, no ‘fresh claim’ test which asks whether material not previously considered support a planning merits claim with a realistic prospect of success (cf. rule 353 of the immigration rules). An LPA may certainly choose to give some consideration to planning merits. In Moran itself there had been an OR which identified as a ‘key consideration … whether there is any realistic chance that [planning] permission would be granted’ (see §9). The LPA submitted to the Court of Appeal (see §52) that it was ‘not necessary for [it] to provide a full merits determination of the planning application but only to make such assessment as was necessary in order to determine the exercise of the discretion under s.70C’. Dove LJ was careful in stopping short of saying that any ‘review of the planning merits’ is legally necessary, in recording that one had taken place (see §67). Kerr J had explained in Moran at §107 that it can be appropriate to avoid ‘straying into the very planning merits which s.70C, where it applies, permits the LPA not to determine’. Mr Rudd, rightly in my judgment, stops short of saying that a review of planning merits is always and invariably needed in an exercise of the s.70C. I think an idea inherent in the nature of the s.70C power is that an application for planning permission – independently of whether it would succeed on its planning merits – may nevertheless be the subject of a lawful adverse exercise of this DTD power.”
“Once the power is triggered, it is a broad discretion concerned with what the LPA is ‘prepared’ to allow to be undertaken, where the LPA has to make a reasonable choice.”
“Green Belt serves five purposes: a) to check the unrestricted sprawl of large built-up areas; b) to prevent neighbouring towns from merging into one another; c) to assist in safeguarding the countryside from encroachment; d) to preserve the setting and special character of historic towns; e) to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.” a) to check the unrestricted sprawl of large built-up areas; b) to prevent neighbouring towns from merging into one another; c) to assist in safeguarding the countryside from encroachment; d) to preserve the setting and special character of historic towns; e) to assist in urban regeneration, by encouraging the recycling of derelict and other urban land.”
“.. land in the Green Belt comprising previously developed land and/or any other land that, in either case, does not contribute strongly to any of purposes (a), (b) or (d) in paragraph 143…..”
“When considering any planning application, local planning authorities should ensure that substantial weight is given to any harm to the Green Belt, including harm to its openness [fn 55 says ‘Other than in the case of development on ….grey belt land, where development is not inappropriate’]. Inappropriate development is, by definition, harmful to the Green Belt and should not be approved except in very special circumstances. ‘Very special circumstances’ will not exist unless the potential harm to the Green Belt by reason of inappropriateness, and any other harm resulting from the proposal, is clearly outweighed by other considerations.”
“The development of homes, commercial and other development in the Green Belt should not be regarded as inappropriate where all the following apply: a. the development would utilise grey belt land and would not fundamentally undermine the purposes (taken together) of the remaining Green Belt across the area of the plan; b. there is a demonstrable unmet need for the type of development proposed; [fn 56 says ‘..in the case of traveller sites means the lack of a five year supply of deliverable traveller sites assessed in line with [PPTS]’] c. the development would be in a sustainable location….[fn 57 says ‘In the case of development involving the provision of traveller sites, particular reference should be made to [PPTS] paragraph 13’]”
“Inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development. Subject to the best interests of the child, personal circumstances and unmet need are unlikely to clearly outweigh harm to the green Belt and any other harm so as to establish very special circumstances.” [The last sentence was reproduced in para 24.] In the new PPTS, para 16 reads: “Inappropriate development is harmful to the Green Belt and should not be approved, except in very special circumstances. Traveller sites (temporary or permanent) in the Green Belt are inappropriate development unless the exceptions set out in Chapter 13 of the [NPPF] apply.”
“If a local planning authority cannot demonstrate an up-to-date 5 year supply of deliverable sites this should be a significant material consideration in any subsequent planning decision when considering applications for the grant of temporary planning permission.[fn 9 says ‘There is no presumption that a temporary grant of planning permission should be granted permanently.’] The exception is where the proposal is on land designated as Green Belt...”
“If a local planning authority cannot demonstrate an up-to-date 5 year supply of deliverable sites, the provisions in paragraph 11 (d) of the [NPPF] apply..”
“..If the Claimant subsequently makes an application for permission for [development in respect of which an enforcement notice is in force], 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)…”
“He [the defendant’s counsel] has persuaded me that on the particular facts of this individual case, the decision-maker was entitled to look at the planning history, the position on the ground (with no reset), and the interests in maintaining a clear position and being able to enforce the ENs. All in the context of the objection made, that the land should be restored to [its] original state in accordance with the ENs. The ENs have been disobeyed and ignored while repeated planning applications have been made and rejected in the public interest. That is the essence of the decision: [see 20-22] above. That being so, the decision-maker was acting in a legally legitimate way in the present case, when making this reasoned decision, without engaging with the points which were being made about changed planning policy and changed planning merits. I think the position could be very different if there were a reset: see [12] above. That would remove a central aspect of the reasoned basis for the decision. But whether a feature is to be identified as an obviously relevant consideration, and the linked question of whether the s.70C decision is obliged to give considerations to planning merits, is a fact-specific and case-specific question. I am unable to accept, on the facts and in the circumstances of the present case, that the LPA was obliged to stray into the very planning merits which s.70C permits it not to determine: see [9] above. In Moran Kerr J (at [107]) had warned against treating that as necessary. And the specific context of his warning is instructive. He cited previous judicial observations about ‘whether it might be necessary’ to consider a planning application on its merits ‘where the development plan has changed, or some other material planning considerations have changed so that the underlying merits may be different’ (see [105]). He gave his warning about that, precisely because he saw the dangers of treating such matters as ‘mandatory considerations’ (see [107]). I think this case illustrates those dangers. I find that the December 2024 change in national policy were [sic] not, applying the reasonableness standard, an obvious material consideration to which the decision maker was then duty bound to have regard.”
“The circumstances of this case are somewhat different [from those in Connors]. Here the Defendant had the benefit of an independent Planning Inspector’s decision which demonstrated that the Site should be categorised as Grey Belt land; and the Defendant’s consideration of both that issue and the question of whether there was an unmet need for Gypsy and Traveller sites in the District fell well short of what would be expected of a reasonable decision-maker.”