London borough defeats High Court judgment over decision not to determine planning application

Mr Justice Fordham said the case concerned a local planning authority’s statutory discretion to decline to determine a planning application under s.70C of the Town and Country Planning Act 1990), where there has been a change in national planning policy.

The applicant/claimant advanced three grounds for judicial review. He is the owner of a site near Knockholt and applied in August 2025 to remove three mobile homes, and for a change of use for two pitches for Gypsy Travellers with associated hard surfacing and buildings.

The claimant wanted his application determined on its planning merits. But Bromley declined after an officer’s report.

This noted there were enforcement notices on the site and the application sought permission for works that included development identified as a breach of planning control in notices.

The court heard the notices dated from 2019 and one identified a breach of planning control under s.171A(1) by installing hardstanding, gates and fences and stationing a mobile home for residential and office purposes, and required their removal.

Bromley’s second notice identified another breach of planning control under s.171A(1) in changing use from agriculture to storage and the parking of haulage lorries, containers and building materials, and again required their removal.

Fordham J was told the notices remain extant and enforceable there had been three successful criminal prosecutions arising from them.

The claimant’s first ground was that the ‘mischief’ identified was now absent and so Bromley had exercised its power incompatibly with its purpose.

He argued there had never been any determination of the planning merits of a traveller site and a fundamental change to national policy meant development of these was enabled to meet the grey belt land criteria and conditions.

The argument as summarised by the judge was: “This is not two bites at a cherry. It is a new fruit, at which there has been – and could have been – no bite at all.

“This is not a change in local circumstances, or a local plan or policy. It is a change in national policy. To exercise the statutory discretionary power, notwithstanding a material and fundamental change in national planning policy, frustrates the purpose of s.70C. It is unlawful.”

Fordham J accepted this was arguable “but I cannot accept that it succeeds”.

He explained the Court of Appeal had been “careful to emphasis the statutory overlap between enforcement notice and present application, which may be an overlap ‘in whole or part’”.

The judge added: “The statutory power is triggered even though there is no complete symmetry between past breach and present application. Once the power is triggered, it is a broad discretion concerned with what the [council] is ‘prepared’ to allow to be undertaken, where [it] has to make a reasonable choice.”

The claimant’s second ground was that a fundamental change in applicable national planning policy was an obviously material consideration. The enforcement notices were issued under the old planning policy framework.

He said if local authorities were permitted not even to think about game-changing changes in national planning policy, the logical consequence would be the sterilisation of land.

Fordham J said: "|I think it is the high water mark of the case. The point about sterilising implications has real force. Again, I accept that the point is arguable. But, again, I cannot accept that it succeeds.”

He said the notices “have been disobeyed and ignored while repeated planning applications have been made and rejected in the public interest”.

Bromley’s decision maker acted legitimately without engaging with points made about changed planning policy and planning merits.

“I am unable to accept, on the facts and in the circumstances of the present case, that [Bromley] was obliged to stray into the very planning merits which s.70C permits it not to determine.”

A third ground was argued about whether legally valid reasons were given. Fordham J again said the point was arguable but failed because “the claimant received the reasoned decision.

“[Bromley] had a choice about whether to permit ventilation on the planning merits, of something which overlapped with [enforcement notices] which had been and continued to be disobeyed. [It] made its choice. It gave its reasons. No further level of sophistication was required of them”.

He ordered that the claimant should pay Bromley’s costs of £7,700.01 and refused leave to appeal.

Mark Smulian