Under section 70C of the Town and Country Planning Act 1990 (introduced by the Localism Act 2011), local authorities can decline to determine a retrospective planning application where the application is for development that is (in part or whole) the subject of an enforcement notice. 

In the recent case of Wingrove v Stratford-on-Avon District Council, the High Court dismissed a challenge to Stratford-on-Avon DC’s use of its discretion under section 70C and held that an applicant’s actual motives to use a retrospective application to delay enforcement matters is “clearly a consideration in favour of a decision to invoke section 70C”. Given the claimant’s history of engagement with the planning process and enforcement action in this case, it was reasonable for Stratford-on-Avon DC to infer that the claimant’s motives were to cause such delay. 

The judge commented that section 70C confers a wide discretionary power and that Parliament’s intention in introducing this power was to provide local authorities with a tool to prevent retrospective planning applications being used to delay enforcement action. Furthermore, the judge considered that there is a “legislative steer” in favour of exercising the discretion, since an applicant has the option of appealing an enforcement notice and canvassing the planning merits that way.

The Court indicated that factors which would weigh against exercising discretion under section 70C include where the applicant has failed to appeal an enforcement notice for legitimate reasons and the development is plainly compliant with planning provisions (which could arise where there has been misapplication or subsequent changes in policy), or where the development could be made acceptable by the correct planning conditions.

However, it was emphasised that section 70C is “far from being a gateway for applicants to canvass the full planning merits”; rather, it provides an option to decline to determine those merits.

Wingrove v Stratford-on-Avon District Council (2015)