Council faulted on refusal to consider application

A Bedfordshire council acted unlawfully in deciding not to determine a planning application for a storage building, the High Court has ruled.

The claimant had obtained planning permission in 2010 for an outbuilding for storing vehicles. In 2015, the council issued an enforcement notice alleging that the building did not conform to the 2010 permission and was being used as a dwellinghouse. An appeal inspector upheld the enforcement notice, ruling that the building as erected was materially different from the approved plans and there was no policy support for permitting a dwelling or holiday let at the site.

The appellant submitted a further application proposing changes to the building, including lowering its height and installing an up-and-over door to facilitate its use for agricultural storage purposes. Citing section 70C of the Town and Country Planning Act 1990, the council argued that the scheme was not materially different from that subject to an extant enforcement notice. A planning officer’s report asserted that, should the council be required to consider the application and deal with any further appeal, this would incur further costs and delay in securing demolition of the building.

In seeking judicial review, the claimant argued that section 70C was not engaged because the application proposed a development that was materially different from that considered by the inspector. The enforcement notice alleged the unauthorised erection of a dwellinghouse but the subsequent application proposed a storage building, he explained. The inspector had specifically refused to consider whether it was appropriate to retain the building with amendments as a storage building because this fell outside the scope of the notice, he pointed out.

Deputy judge Nathalie Lieven QC concluded that it had been irrational for the council to rely on section 70C. This was a means of avoiding multiple applications for essentially the same development, she reasoned, whereas in the case before her the council’s stance effectively prevented the claimant from seeking permission for a different form of development.

Since the enforcement notice was directed at a completely different form of development, she held, section 70C did not apply even though part of the proposed building had a similar footprint to that subject to enforcement action. The council had acted unreasonably in refusing to consider the application and the claimant had been prejudiced, she held. The cost and time involved in determining an application and possible subsequent appeal were irrelevant considerations, she opined.

Banghard v Bedford Borough Council

Date: 29 September 2017

Ref: [2017] EWHC 2391 (Admin)

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