A council’s discretion not to accept for determination an application that overlaps matters that have been the subject of planning enforcement is essentially unfettered.
The Purpose of Section 70C
Section 70C, which was introduced in 2012, was intended to remove an applicant’s ability to have two bites of the cherry; by this we mean two opportunities for the planning merits of their case (on essentially the same grounds) to be considered: once through the enforcement appeal and a second time following a refusal of an application.
However, practitioners and landowners should not proceed on the assumption that a second bite will only be prevented where a first bite has been taken. The mere fact that there was a first bite on offer is sufficient, whether or not that opportunity was taken. This can happen where, for example, no appeal was made under ground (a) [the retrospective planning application] against an enforcement notice. The fact that there hasn’t been an initial assessment of the planning merits is not sufficient to exclude the council’s ability to decline to determine a later application.
How a Missed Appeal Can Trigger a Chain Reaction
The ground (a) point requires us to take a further step back and consider the availability of that ground in the first place. A chain reaction may be set off where:
an earlier refusal was not appealed (or a non-determination not appealed);
the time for doing so has now expired;
an enforcement notice is served; but
not enough time has passed since the earlier missed appeal for the ground (a) appeal to be available.
The result is that the merits are not considered by an Inspector from the original application, they cannot be considered in the enforcement appeal, and the LPA can now decline to even accept an application post enforcement.
The advice, in almost all circumstances, is to never let an opportunity to have the merits of your case considered by an Inspector pass you by.
Our team of planning solicitors regularly advise on planning applications, appeals and enforcement. If you’d like to speak to one of them, please contact us via [email protected]