Section 70C of the Town and Country Planning Act 1990 bears the heading “power to decline to determine retrospective application”. Its purpose, or one of its purposes, is to prevent repeat planning applications being used to delay or frustrate ENFORCEMENT ACTION by taking many “bites of the cherry”. In R (MORAN) v MEDWAY COUNCIL (2025) EWHC 350 (Admin) the Council invoked Section 70C in the decision challenged declining to determine a planning application submitted by the Claimant. A LPA can do that under Section 70C(1)
“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.”
A “pre-existing enforcement notice” in relation to any particular application for planning permission, or permission in principle, is (by Section 70C(2)):
“an enforcement notice issued before the application was received by the local planning authority.”
As for the facts, it was agreed that there was a “pre-existing enforcement notice” in respect of the relevant land, issued before the Claimant became the owner of that land (or a sufficient part of it).
At paragraph 108 of his Judgment dismissing the challenge Kerr J said:-
“Drawing the threads together, the cases lead me to apply the following propositions to determine the legality of this decision under Section 70C:
- The Section 70C discretion is available where a pre-existing enforcement notice overlaps in subject matter with a subsequent planning application.
- Whether it does or not involves an element of planning judgment, but requires only a simple comparison often with only one possible outcome.
- The section may apply whether or not the enforcement notice was appealed by the application or by a previous owner.
- Its purpose is to limit the current or a previous owner to one opportunity to have a determination of the planning merits of the matters enforced against.
- The considerations to which the LPA will have regard are a matter for the LPA; if a consideration is relevant, it may be taken into account.
- However, some considerations may be so obviously material that it would be irrational not to have regard to them.
- Identifying any consideration of the latter type (see (6) above) is a question of fact in each case.
- Subject to the overarching requirement of rationality, the weight to be given to any particular consideration is a matter for the LPA.”