Casey & Smith v Crawley BC

Hearing date: 28 November 2024

Approved Judgment

The Claimants are Irish Travellers residing on a site in Crawley which has been the subject of enforcement proceedings and separate applications for planning permission. The Defendant is the local planning authority for the administrative area in which the Claimant's land is situated. The planning application was made in respect of land to the north of Brookside and the east of Radfords Farm, Radfords Road, Crawley, West Sussex (the Land). This is the Claimant's renewed application for permission to judicially review the decision of the Defendant dated 16 May 2024 to decline to determine an application for planning permission (reference CR/2024/0103/FUL).

Background

By an enforcement notice (EN) dated 29 April 2021, the local authority alleged an unauthorised change of use of the Land to a residential caravan site with associated unauthorised operational development. That EN was subsequently appealed on grounds (e) and (g) of section 174(2) of the Town and Country Planning Act 1990 (the Act). Ground (e) alleged improper service of the EN and ground (g) requested additional time to comply with the requirements of the EN. The Claimants were professionally represented during the course of that appeal. Ground (e) was withdrawn before final determination and by decision letter dated 28 February 2022 the ground (g) appeal was dismissed. As a result of the appeal outcome the EN took effect on 28 August 2022 and the time for compliance expired on 28 August 2022.

Running alongside the EN procedures was a separate application for planning permission 1. That application was made on 6 August 2021 and it sought planning permission for the material change of use of land to a Gypsy and Traveller site with association operational development. It was refused and it went to appeal and, by decision letter dated 9 December 2022, the appeal was allowed to the extent that a temporary planning permission (personal to the applicants) was granted for a period of 3 years. That decision was subsequently quashed by consent as a result of an error in the Inspector's approach to local planning policies in relation to noise.

The planning appeal was then re-heard on the 23 January 2024 and was dismissed by letter dated 14 February 2024 for reasons to do with flood risk. That appeal decision was then subject to judicial review proceedings which are ongoing and that claim has been granted permission on some grounds (the s288 proceedings).

In the meantime, on the 26 January 2024, a further application 2 for planning permission was submitted for a Gypsy and Traveller site with associated development. The local planning authority then exercised its discretionary powers, under section 70C(1) of the Act, to decline to determine the application. It is the challenge to that decision which is the subject of this claim.

Section 70C(1) provides as follows:

“70C Power to decline to determine retrospective application

(1) A local planning authority may decline to determine an application for planning permission or permission in principle for the development of any land 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.

(2) For the purposes of the operation of this section in relation to any particular application for planning permission or permission in principle, a “pre-existing enforcement notice” is an enforcement notice issued before the application was received by the local planning authority.”

In declining to determine the application the local authority had regard to whether there were good and proper reasons to determine the new planning application, notwithstanding the extant EN. It decided that there were no such good reasons, observing:

“In coming to this conclusion, the matters the Council took into account included:

• There was an unsuccessful appeal against the Enforcement Notice during which a ground (A) appeal under s174(2)(a) of the Act was not progressed.

• You subsequently filed an application for retrospective planning permission (application CR/2021/0243/FUL), which was refused. Your appeal before the Inspector was refused on 14.02.2024 (although I note there is an extant s.288 appeal before the Planning Court against this decision).

• You were professionally represented in your appeal before the Inspector, and were able to submit whatever information you thought appropriate and proper to overcome the objections to permission.

• The New Application would only serve to further delay effective enforcement at the Site through the Enforcement Notice”

By pre-action protocol letter the Claimants asked the Defendant to review its decision. That request was refused and a judicial review claim was duly issued. The application for permission to apply for judicial review was refused on the papers by the Honourable Mr Justice Eyre on 9 August 2024.

The Claimants contend that the discretion under section 70C has been unfairly exercised on three grounds and they seek to renew their application for permission on all grounds. I have been helpfully referred to the case of R (on the application of Chesterton Commercial (Bucks) Ltd) v. Wokingham Borough Council [2018] EWHC 1795 (Admin); [2019] PTSR 220 which draws together previous decisions on the exercise of a local authority's discretion (at §32 – 47).

“69 Secondly, the statutory objective of stopping applicants who have undertaken development in breach of planning control from gaming the system by tactical appeals and retrospective applications is not achieved by asking only whether the planning merits of a proposal have already been determined. The applicant cannot have multiple “bites at the cherry”, but nor can he decline the cherry when it is available to be bitten, and insist on biting it on a later occasion. As was recognised in Banghard's case [2018] PTSR 1050, para 30, the statutory purpose requires that the unexploited opportunity to have the planning merits considered should also count against the applicant, because “in such cases the developer had a full opportunity to a fair process and did not avail himself of it”. In Smith's case [2017] EWHC 2696 Gilbart J considered that it was sufficient that the opportunity to pursue an appeal against an enforcement notice had...