Derek Kelly, R (on the application of) v West Oxfordshire District Council [2026] EWHC 2145 (Admin)

[2026] EWHC 2145 (Admin)Case No AC-2026-LON-001512
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/08/2026
Before
Timothy Corner KCSitting as a Deputy High Court Judge
Between
The King (on the application of Derek Kelly)ClaimantWest Oxfordshire District CouncilDefendantFrank CreeseInterested Party
Daniel Stedman Jones and Jake Thorold (instructed by Blake Morgan) for ClaimantNick Grant (instructed by the solicitor to West Oxfordshire District Council) for Defendant for The Interested Party did not appear and was not representedHearing Hearing date: 23 July 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 11 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Timothy Corner KC:

[1]In this claim for judicial review, the Claimant challenges the decision (“the Decision”) of the Defendant (“the Council”) not to take enforcement action against breaches of planning control by the Interested Party (“IP”) at Chalfont, 3 Wroslyn Road, Oxfordshire (“the Site”). The Claimant lives in the neighbouring property, Pembroke House.[2]Tim Smith, sitting as a Deputy High Court Judge, refused permission on the papers on 1 June 2026. The hearing before me was the Claimant’s renewed application for permission to apply for judicial review. BACKGROUND The planning applications[3]On 14 March 2023, the Council granted planning permission (“the 2023 Permission”) to the IP for a “Garage/store in the rear garden” (ref: 23/00124HHD).[4]In breach of the 2023 Permission, the IP constructed a garage/store which differed from the approved plans in respect of its proximity to Pembroke House’s southern boundary and its height, which was materially larger than what was approved.[5]On 23 January 2024, the IP made two applications under s.73 of the Town and Country Planning Act 1990 (“the 1990 Act”) for planning permission for development without compliance with conditions previously imposed.[6]The first application (“the first application”) (Application ref: 24/00215/S73) was for changes to the design and materials used in the front and rear extensions to the main house. The first application was approved on 29 May 2024.[7]The second application (“the second application”) (Application ref: 24/00216/S73) related to the garage and was for “[v]ariation of condition 2 of Planning Permission 23/00124/HHD to allow design changes (retrospective)”. It was recommended for approval by the case officer, Sarah Hegerty.[8]Notwithstanding the officer recommendation, the second application was refused by the Council on 29 May 2024 (“the 2024 Decision”). The reason for refusal was:
“[t] he proposed scheme by virtue of its siting, design, massing and scale would result in an overbearing impact on the neighbouring property (Pembroke House) in conflict with Policies OS4 and H6 of the West Oxfordshire Local Plan 2031.”
The appeal[9]The IP appealed the 2024 Decision to the Planning Inspectorate.[10]The inspector, E Worley BA (Hons) Dip EP MRTPI allowed the appeal by decision letter (“the DL”) dated 17 January 2025.[11]The DL was the subject of a separate challenge by the Claimant. The High Court has reserved judgment and hand down is awaited. Correspondence since April 2025[12]Between April 2025 and February 2026, there was correspondence between the Claimant and the Council regarding breaches of planning control at the Site.[13]The Claimant’s solicitors wrote to the Council on 3 April 2025 setting out the Claimant’s position that there had been a number of breaches of planning control at the Site. The letter identified two categories of breach: i) Construction of the garage/store not in accordance with the scheme permitted by the DL; and ii) Extensions to the main house not in accordance with the planning permission granted on 29 May 2024.[14]The letter concluded by urging the Council to take enforcement action against the unauthorised works and offering to pay for the appointment of an independent surveyor.[15]On 17 June 2025, Ella Charles replied substantively on behalf of the Council, declining the offer to pay for an independent surveyor’s report and refusing to take enforcement action.[16]On 26 June 2025, the Claimant’s solicitors responded to the Council, drawing attention to alleged flaws in the Council’s reasoning. The letter concluded by requesting the Council to reconsider its position in respect of the decision to not take enforcement action.[17]On 29 August 2025, Kelly Murray, the Council’s Principal Planner for Enforcement and Appeals, replied, in a two page letter dealing with both the construction of the garage and the extensions to the main house, stating:
“We have …carefully re-considered the Council’s position in the context of your particular concerns… I hope your client is reassured that we have, as requested, re-considered this case. On the facts as they appear to us at this time, however, we remain of the view that no further action is appropriate.”
[18]The Claimant subsequently instructed specialist surveyors, Stephen Hodge Associates, to assess the position at the Site and produce a report (“the Surveyor’s Report”), dated 19 September 2025, which concluded as follows:
“Conclusions It is clear to us that the depth of the rear extension has actually been built out to a total of 890 mm. The height is also increased by approximately 450 mm. In addition, we can confirm that the front extension protrudes out to the west by an extra 175 mm.”
[19]The Surveyor’s Report was sent to the Council on 1 October 2025 and, following a lack of response by the Council, the Claimant’s solicitors wrote to the Council’s legal department on 13 January 2026 setting out the Claimant’s position in detail and requesting the Council to reconsider its position in light of that report. The letter stated as follows:
“In response to [the Council’s letter of 29 August 2025], our client engaged a surveyor to undertake an assessment of the works against the Retrospective Application plans. The surveyor’s results directly contradict the Council’s assertion as several deviations have been identified which are having a cumulative negative effect on our client. The most significant being that the overall siting of the main house with the additional extensions is incorrect as it is set back approximately two metres to the east from where the permitted plans have approved meaning that the main house structure is protruding two further meters [original emphasis] into the rear garden and nearer our client’s property than where it should be (see drawing ref: 22012.08). Intention and conduct of the Applicant [original emphasis] As explained above, the works the Retrospective Application approved were substantially complete in October 2023. The Retrospective Application was submitted in late January 2024. It is our client’s view that the applicant knowingly submitted drawings which did not reflect the precise nature of the construction works that had been carried out and, by doing so, deliberately misled the council in its submission in January 2024. This type of behaviour is unacceptable and undermines the public and transparent nature of the planning system. Applicants who knowingly submit incorrect information, particularly in the context of retrospective applications where works have been carried out unlawfully, should be enforced against to uphold public trust and to deter future applicants from knowingly making submissions containing false information to obfuscate the true nature of the development works that had been undertaken without permission.”

Intention and conduct of the Applicant [original emphasis]

[20]The Council’s Development Manager, Abby Fettes, replied on 12 February 2026. The material part of her letter was:
“As Ms Murray explained in her letter, the decision to take enforcement action is discretionary and is based on planning harm. It is our officers’ view that the garage and the extensions as built are not harmful in planning terms. Moreover, it is not the purpose of planning enforcement to punish alleged contraveners; the Council is impartial and will not become involved in neighbour disputes except where there is a formal legislative adjudication process (such as the high hedges regime). Any intention on the part of your client’s neighbour (even if it could be demonstrated) is irrelevant to the question of whether there is planning harm….. I note your stated intention to pursue the Council’s formal complaints process should we decide against taking the action you are advocating, however, as is stated on our website, this process cannot be used in respect of decisions involving planning judgement or whether to take enforcement action. You are of course within your rights to refer a grievance to the Ombudsman and for this purpose I now confirm that, in the absence of any material change in the circumstances in planning terms, this letter will be our final communication with you on this matter.”
The refusal of permission on the papers

The refusal of permission on the papers

[21]On 29 May 2026 Tim Smith refused permission to apply for judicial review, on the following grounds: i) The claim is out of time because the Council’s decision not to take enforcement action was taken on 17 June 2025. ii) The challenge is in any case unarguable, because: a) The assertion by the officer in the letter of 12 February 2026 that the IP’s intentions were irrelevant to whether there was planning harm is not challengeable: b) The claim that the Council’s approach as to the existence of planning harm is inconsistent with its previous position and the inconsistency was not explained is not challengeable. c) The Council’s decision not to take enforcement action is not challengeable on rationality grounds. The Written Ministerial Statement[22]In a Written Ministerial Statement on 17 December 2015 (“the WMS”), Baroness Williams of Trafford, Parliamentary Under Secretary of State for Communities and Local Government, said that:
“This Statement confirms changes to national planning policy to make intentional unauthorised development a material consideration…. The Government is concerned about the harm that is caused where the development of land has been undertaken in advance of obtaining planning permission. In such cases, there is no opportunity to appropriately limit of mitigate the harm that has already taken place. Such cases can involve local planning authorities having to take expensive and time consuming enforcement action. For these reasons, we introduced a planning policy to make intentional unauthorised development a material consideration that would be weighed in the determination of planning applications and appeals. This policy applies to all new planning applications and appeals received since 31 August 2015.”
THE PARTIES’ SUBMISSIONS The Claimant Is the claim out of time? THE PARTIES’ SUBMISSIONS The Claimant

Is the claim out of time?

[23]Mr Daniel Stedman Jones and Mr Jake Thorold for the Claimant say it is incorrect that the claim was brought out of time. The Decision was taken on 12 February 2026, and the claim was filed within six weeks of that date.[24]It is not correct to characterise the Decision as merely a restatement of the Council’s earlier position. It was a fresh decision, because: i) As part of its ongoing duty to consider enforcement action, the Council was required to consider the Surveyor’s Report pursuant to its duty to take account of all material considerations. The Claimant’s letter also raised new points regarding the intentional character of the unauthorised development. Neither the Surveyor’s Report nor the points regarding intentional unauthorised development had previously been considered by the Council, and therefore they constituted material changes in circumstance from the previous correspondence. The Council was therefore making a fresh decision based on a changed evidential picture. ii) The Decision contained new rationale from the Council, in particular in relation to the relevance of intentional unauthorised development. As such, the Decision was not simply a restatement, because it contained new (and legally erroneous) reasoning which had not previously featured.[25]The claim was therefore brought in time. Grounds of challenge Ground 1: Misdirection regarding intentional unauthorised development and/ or failure to take account of material considerations[26]In the Decision (of 12 February 2026), the Council stated that “[a]ny intention on the part of your client’s neighbour (even if it could be demonstrated) is irrelevant to the question of whether there is planning harm”.[27]This is, however, directly contradicted by the WMS, High Court caselaw and indeed the Council’s own enforcement policy. In particular, the WMS states that intentional unauthorised development is a material consideration in planning decision making.[28]Plainly, therefore, it was a material misdirection by the Council to contend in the Decision that intentional unauthorised development was “irrelevant” to the question of planning harm. Where made out, such intentional unauthorised development will weigh in the planning balance against the development as a material consideration. If intentional unauthorised development can be shown, it represents a material planning harm which should be taken account of. It reflects the harm that arises from intentional gaming, or worse, of the planning system and it reflects the fact that it is harmful in planning terms for unauthorised development to be permitted “by the back door”. The Council’s statement in the Decision was therefore incorrect as a matter of law.[29]In circumstances where the Claimant provided robust prima facie evidence that the IP had carried out intentional unauthorised development, it was incumbent upon the Council to consider this evidence and reach a view on whether the unauthorised development was in fact intentional. If it was, then this was a factor which the Council needed to take into account as part of its assessment of the expediency of taking enforcement action. By misdirecting itself that this issue was “irrelevant”, however, the Council entirely failed carry out this necessary exercise.[30]The WMS makes clear that it is a material planning harm of itself, which the Defendant needed to take account of but did not. This was made clear by the High Court in Bedford Borough Council v Hodson and others(KB-2025-002668), where it was concluded (at [62]):
“There is a need to uphold the integrity of the planning enforcement system. There is a public interest in ensuring effective enforcement of that system, particularly in cases where there has been intentional unauthorised development or intentional continuation of breach of planning control. That is, in my judgement, properly to be regarded as planning harm.”
Ground 2: Unreasoned inconsistency in decision-making[31]As was repeatedly highlighted in the Claimant’s correspondence to the Council, in the 2024 Decision the reason for refusal for the second application relating to the garage was based on overbearing impact on Pembroke House.[32]As outlined in the Decision, however, the Council (or at least its officers) has now entirely changed its position from the reason for refusal advanced when refusing the 2024 Application to contend that “the garage and the extensions as built are not harmful in planning terms”. Remarkably, the Council’s officers have reached this view notwithstanding the Claimant providing evidence that the as-built development is even bigger than the development outlined in the IP’s retrospective application materials, which the Council had already considered unacceptable due to its overbearing nature.[33]Importantly, the 2024 Decision was properly made by elected members of the planning committee rather than officers. The planning committee have never disavowed the position they adopted – the need for the Council to provide a sound rationale is further heightened in those circumstances. Instead, the Council’s officers have illegitimately preferred their own view in place of the planning committee’s decision, without providing any good reason (or indeed legal basis) for doing so. This was unlawful.[34]Furthermore, the fact that the Inspector disagreed with the 2024 Decision plainly did not obviate the need for the Council in the Decision to provide an explanation for departing from its previous position in the 2024 Decision. The Council was still required to properly explain in the Decision why it considered it appropriate to adopt the exact opposite conclusion to that reached just two years previously. The Claimant relies on North Wiltshire District Council v Secretary of State for the Environment (1993) 65 P&CR 137. Ground 3: Irrationality[35]Further and/or alternatively, the Council’s position that the as-built development is not harmful in planning terms renders the Decision irrational and therefore unlawful. It was irrational for the Council to decide not to enforce on the basis of a conclusion which ran directly counter to its previously adopted position, in circumstances where no proper explanation has been given for this.[36]In the schema adopted by the High Court in R (KP) v SoS for Foreign, Commonwealth and Development Affairs [2025] EWHC 370, the Decision constitutes an example of “process irrationality”, because the Council has not had regard to all mandatorily relevant considerations (which included the 2024 Decision) and reached the Decision through a process of reasoning which contained a “critical gap” – namely consideration of the 2024 Decision and, crucially, why it was considered appropriate to reach a diametrically opposite conclusion to that decision. The Council The claim is out of time[37]Mr Nick Grant for the Council submits that the claim is out of time. It is premised on the suggestion that a decision was made on 12 February 2026. That is wrong. As the opening passages of the 12 February letter make clear, the Council’s position had previously been set out in the Council’s letter of 29 August 2025, and the Council considered that the Claimant’s subsequent correspondence simply “restates your arguments”. It was drafted so that the Claimant could make a complaint to the Local Government Ombudsman if desired (which requires an end to the complaints process), not as indicating any further decision had been made.[38]A judicial review of a decision under the planning acts must be commenced within 6 weeks of when the grounds to make the claim first arose (CPR r. 54.5(5)). It is well established that the judicial review time limit cannot be circumvented by simply generating correspondence whose effect is to confirm a previously taken decision: see e.g. R (Anwar) v Ealing LBC [2026] J.P.L. 412 per Andrews LJ at [8]. As Sir Keith Lindblom SPT held in R (Arnold White Estates Ltd) v Forestry Commission [2023] PTSR 242 at [52] “Unless there is truly a new decision, the clock is not set running again by correspondence which only articulates a decision already made.”[39]The Claimant’s suggestion that there was detailed reconsideration is wrong. There was not and it is entirely unclear on what basis the Claimant suggests otherwise.[40]The Claimant indicates that planning enforcement is an ongoing function (i.e. it can be exercised at any time while a breach is continuing) and the Claimant provided new evidence. It is right that the Council can exercise its enforcement functions at any time and could lawfully have reconsidered the matter. But in this case, it did not consider doing so on 12 February.[41]No application for an extension of time to impugn the earlier decisions has formally been made. Insofar as an extension may be claimed, the Claimant has not sought to engage with or explain the basis on which the Court’s jurisdiction should be exercised, whether by reference to R (Thornton Hall Hotel Ltd) v Thornton Holdings Ltd [2019] EWCA Civ 737 at [21] (which concerned extensions of time for an application to seek review of a grant of permission) or the factors set out in the cases referred to in White Book (Vol 1) para 54.5.1, or otherwise.[42]Had an application been made, as the Deputy Judge set out (para. (1) of his reasons for refusing permission at the paper stage) there would be no good reason to grant it.[43]New evidence not before a decision-maker would not be a reason to impugn the decision-maker’s decision: Kenyon v SSLUHC [2020] EWCA Civ 302 at [29].[44]That a person has breached planning control does not of itself lead to enforcement action being taken. The authority is required to consider whether it is “expedient” to take enforcement action (i.e. balancing the advantages and disadvantages (R (Ardagh Glass Ltd) v Chester CC [2009] Env LR 34 at [47])) and having regard to the development plan and other material considerations (s. 172(1) TCPA 1990). That being the case, it is hard to see how the fact a person has deliberately acted in breach of planning control (if made out) would be a reason to extend time for judicial review of an authority’s decision not to take action to restrain that breach. Moreover, insofar as the Claimant wished to make the allegation, there is no reason for the delay in so doing. Ground 1[45]The Council, considering both national and local policy, concluded there was no unacceptable harm to amenity including overlooking and visual amenity. After four separate officers (and a planning Inspector) visited the Site, the Council maintained that view: see the letters of June 2025 and August 2025. Fundamentally the Council considers that this is, in the words of the NPPF, “a trivial or technical breach of control which causes no material harm to adverse impact on the amenity of the site or the surrounding area”. The Council also explicitly considered the fact that there had been abreach, noting in the 29 August letter that in the absence of harm it was not in the public interest to insist on regularising a “purely technical breach.”[46]Even if the Council had not taken into account the Claimant’s allegation – and it is only an allegation – that the breaches of planning control were intentional, against the backdrop of the minor nature of the breach the decision not to enforce would highly likely be the same: s 31(3C) Senior Courts Act 1981 applies. Ground 2[47]Tim Smith, the Deputy High Court Judge who refused permission at the paper stage, was right to note that an Inspector had rejected the Council’s previous view. The Council relied on that explicitly and explained it in its 29 August 2025 letter. Ground 3[48]Ground 3 adds nothing to Ground 2. DISCUSSION Is the claim out of time?[49]The Council’s at least initial decision not to take enforcement action is contained in its letter of 17 June 2025. Does time run from that letter, or from later letters? The Council says that there was a fresh decision in its letter of 29 August 2025, where it stated that “we have, as requested, re-considered this case.”[50]The Claimant says that whatever might have been the previous decisions, the Council made a new decision in its letter of 12 February 2026. As part of its ongoing duty to consider enforcement action, the Council was required to consider the Surveyor’s Report to which the letter from the Claimant’s solicitors of 13 January 2026 drew attention. The Claimant adds that the letter of 13 January 2026 “also raised new points regarding the intentional character of the unauthorised development”. Again, the Claimant says that the letter of 12 February 2026 contained new rationale, particularly in relation to intentional unauthorised development.[51]However, as was pointed out by Mr Grant for the Council, in deciding whether the claim was out of time, the point is whether a fresh decision was in fact made in February 2026, not whether a fresh decision should have been made.[52]In Arnold White Sir Keith Lindblom SPT held at [52] that unless there is truly a new decision, the clock is not set running again by correspondence which only articulates a decision already made. However, he continued at [52] by referring to the decision of Chamberlain J in Inclusion Housing Community Interest Co v Regulator of Social Housing [2020] EWHC 346 (Admin) at 69, that “..where a decision-maker, in response to a request to reconsider, chooses to conduct an internal review – and …tells the requester that it is holding off publishing its final decision while it gives ‘serious consideration’ to the points made – the position is different…”[53]In my view the Council’s letter of 12 February 2026 cannot be described as analogous to the review described by Chamberlain J. There is nothing in that letter to indicate that the Council is agreeing to review its previous decision or decisions or to make a fresh decision. On the contrary, in that letter the Council said “In her letter of 29 August, Kelly Murray set out the Council’s position…..The subsequent correspondence from your Firm restates your arguments.”[54]The fact that that the Surveyor’s Report was sent to the Council after the Council’s Decision of 29 August 2025 did not make the Council’s letter of 12 February 2026 a fresh decision. If that were so, a person disappointed by an authority’s failure to take enforcement action could continually send new letters making fresh points, with the result that time for challenging the authority’s failure to take enforcement action would not begin. This would circumvent the time limit for bringing a claim for judicial review, thus subverting the certainty which as Sir Keith Lindblom SPT said in Arnold White is an essential purpose of that time limit.[55]In any case, the Surveyor’s Report was sent to the Council by the Claimant’s solicitor as an attachment to an email of 1 October 2025 and the Council did not respond to the Surveyor’s Report. Also, the letter from the Claimant’s solicitors of 26 June 2025 made the accusation that the IP had undertaken intentional unauthorised development. This was repeated in the email of 1 October 2025 from the Claimant’s solicitors. Again, the Council did not respond to this accusation. It follows that the points relied on by the Claimant as leading to a new decision in the Council’s letter of 12 February 2026 were not, in fact, new points in 2026. They had been made several months previously, and the Council did not think it necessary to respond. In my judgement, this reinforces the view that the letter of 12 February 2026 was not a fresh decision.[56]In my judgement, there were two decisions, the first Decision being contained in the Council’s letter of 17 June 2025, and then a fresh Decision (on reconsideration of the matter) contained in the Council’s letter of 29 August 2025. In either case, this claim is out of time and in the absence of an application for an extension of time or any reason given by the Claimant why time should be extended, I cannot grant permission because the claim is well out of time.[57]In deference to the submissions made to me, however, I will consider the substantive grounds. For this purpose, I will assume (contrary to my view) that the Council’s letter of 12 February 2026 was indeed a fresh Decision. The substantive grounds Ground 1[58]The WMS makes intentional unauthorised development a material consideration in the determination of planning applications and appeals and in decisions whether to take enforcement action.[59]The Council had made clear its views on the extent of harm caused by the IP’s unlawful development in previous correspondence. I should say that it was not disputed by the Claimant that when the Council’s officers wrote the letters which are subject of this claim, they were acting under delegated powers.[60]In the Council’s letter of 17 June 2025 it was stated that:
“Having visited the site and reviewed the plans, the council do not consider it expedient to take action. In accordance with National Planning Guidance and the council's Enforcement Policy, enforcement action is a discretionary power and is not automatically taken in all cases. Action will only be pursued where the breach results in unacceptable harm to public amenity, the character of the area, or the planning interests of the wider community. In this case, the nature and scale of the changes are not considered to result in significant adverse impacts or conflict with the relevant planning policies… …the council are of the opinion that no material harm or adverse impact on the amenity of the site or surrounding area, would be caused given what is currently built on site. Furthermore, the alleged changes to the development would be would likely be acceptable on its [sic] planning merits and formal enforcement action would solely be to regularise the development.”
[61]In the Council’s letter of 29 August 2025 it was stated:
“Construction of garage/store “.. As you are aware, when considered at Committee, members considered the outbuilding to be overbearing, a view that conflicted with the recommendation of the Council officer dealing with the application. The appeal planning inspector visiting the site in January of this year, however, agreed with the officer: having inspected the outbuilding, considered its scale, height and siting, she concluded that it did not harm the living conditions of nearby residential properties in terms of outlook, light nor overlooking or loss of privacy… …..Both the original planning officer and the planning inspector concurred in their professional view that the outbuilding is not overbearing, does not overlook your client and is in no other respect unneighbourly. However, in view of your client’s continuing concerns, three further planning officers, including myself, have carried out an assessment of the completed outbuilding and we remain of the same view. There is no ‘cumulative overbearing impact’ as you put it, because in simple terms, the outbuilding as constructed is not overbearing. Extensions to main house The works to the main house remain incomplete, however, as built, we have found there to be no deviations from the plans that would in our view justify either enforcement action nor [sic] requiring a further application. It is clear from our site assessment that the extensions are set well back from your client’s and other neighbours’ dwellings and are not harmful in terms of being overbearing, overlooking or potentially causing loss of light. This is not a ‘blanket statement’ but rather a professional opinion based on the assessment of three planning officers who have all recently attended Chalfont. We have therefore carefully reconsidered the council's position in the context of your client's particular concerns. In so doing, we have taken into account the on-site planning assessments as well as the other circumstances of the case, including the uncertainty for the owners of Chalfont presented by the ongoing legal proceedings and what might be gained by the Council pursuing them for a further application. In the absence of harm, we do not consider it to be in the public interest in this case to insist on regularising a purely technical breach. Such action would serve no other purpose except to demonstrate to your client that their neighbour was being held to account and might indeed be considered as punitive, which is not the purpose of the enforcement system, nor would it be consistent with local or national policy. In this regard, I would draw your attention to government guidance... which states... ‘…local authorities should usually avoid taking formal enforcement action where: -there is a trivial or technical breach of control which causes no material harm or adverse impact on the amenity of the site or the surrounding area; -development is acceptable on its planning merits and formal enforcement action would solely be to regularise the development; -in their assessment, the local planning authority consider that an application is the appropriate way forward to regularise the situation, for example, where planning conditions may need to be imposed.’ I hope your client is reassured that we have, as requested, reconsider this case. On the facts as they appear to us at this time, however, we remain of the view that no further action is appropriate.”

Extensions to main house

[62]The position that there was no harm was repeated in the Council’s letter of 12 February 2026:
“It is our officers’ view that the garage and extensions as built are not harmful in planning terms.”
[63]It was rightly accepted at the hearing before me that the Council’s reasoning must be garnered from all its letters in the chain of correspondence. In that context, I think that all that was being said in the Council’s letter of 12 February 2026 was that there was no harm to public amenity, the character of the area, or to the amenity of neighbours (whether by affecting outlook, being overbearing, causing overlooking/privacy issues or affecting light) – and that whether the unauthorised development was intentional was irrelevant to that question. I do not think the Council was failing to take account of the fact that there was intentional unauthorised development.[64]In any case, even if (contrary to my view) the Council did not take account of the allegation that the unauthorised development was intentional, I must apply section 31 (3C) and (3D) of the Senior Courts Act 1981. Helpful guidance was given on the application of section 31 (2A) of the 1981 Act in R (Bradbury) v Brecon Beacons National Park Authority and James Davies [2025] EWCA Civ 489. Lewis LJ said at [74] that:
“..the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body undertook would not have been substantially different if the error had not occurred.”
[65]I think that guidance is also applicable to applying section 31 (3C) and (3D) at the permission stage. Applying the approach of Lewis LJ, my judgement is that it is highly likely that even if the Council (contrary to my view) did not take account of the intentional unauthorised development, had it done so, the outcome for the Claimant would have been the same, and no enforcement action taken.[66]It is plain from the correspondence that the Council’s officers, who had the delegated power to decide whether to take enforcement action, considered that in the absence of harm to public amenity, the character of the area, or to the amenity of neighbours, no enforcement action should be taken. In those circumstances, applying section 31 (3C) and (3D) of the Senior Courts Act, I would have to refuse to grant permission to apply for judicial review on ground 1 even if the Council’s letter of 12 February 2026 was a fresh Decision. Ground 2[67]Ground 2 relates only to the garage and not to the extensions to the house, as the Council’s previous decision to refuse planning permission related only to the garage and not to the house extension.[68]The North Wiltshire case exemplifies the principle that where a previous decision is inconsistent with a decision which it is now proposed to take, it is incumbent on the decision-maker to give reasons for the decision now being taken.[69]However, in this case the Council did give reasons for the decision subject to this challenge, in its letter of 29 August 2025. I have set out the relevant parts of that letter when dealing with ground 1. The letter makes wholly clear why, despite the Council’s 2024 Decision, the Council does not now consider it expedient to take enforcement action. The fact that the Inspector agreed with the officer’s recommendation to grant permission for the second application and the fact that three further planning officers had visited the Site and did not consider the garage as built caused any harm to public amenity, the character of the area, or to the amenity of neighbours, were powerful reasons for the decision not to take enforcement action. This reasoning fully meets the Wiltshire requirement to take account of the Council’s previous decision and to give reasons for departing from it.[70]The mere fact that these points were not repeated in the Council’s letter of 12 February 2026 does not detract from the conclusion that the Wiltshire duty was fully complied with. As I have said, it was accepted that the Council’s reasoning must be garnered from all its letters in the chain of correspondence I see no reason why, even if the Council’s letter of 12 February 2026 was a fresh Decision, the Council needed to repeat the reasoning contained in its previous letters.[71]Ground 2 is therefore unarguable. Ground 3[72]It is clearly established that a rationality challenge to the exercise of planning judgement 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).[73]The Claimant’s contention is that the Decision is an example of “process irrationality” because the Council did not have regard to mandatorily relevant considerations as it did not take account of 2024 Decision.[74]The claimant does not come anywhere near establishing irrationality in the planning judgement in the present case. As I have said in relation to ground 2, the Council did take account of the 2024 Decision in its 29 August 2025 letter, and it did not have to repeat that aspect of its reasoning in its letter of 12 February 2026, even if (contrary to my view) its letter of 12 February 2026 was a fresh Decision.[75]Ground 3 is therefore unarguable. OVERALL CONCLUSION[76]Having regard to the matters set out in this judgment, I must refuse the claimant permission to apply for judicial review.