No planning merits assessment, no problem – High Court

In R (Connors) v Bromley Borough Council [2026] EWHC 1517 (Admin)) Fordham J. held a local planning authority (“LPA”) was entitled to use the power to decline to determine a planning application under section 70C of the Town and Country Planning Act 1990 in circumstances where the planning merits were not reviewed at all. Doug Scott acted for the LPA.

The challenge comes only months after the Court of Appeal clarified the law on section 70C in R (Moran) v Medway Council [2026] EWCA Civ 484. However, unlike in Connors, in Moran the planning merits were reviewed by the LPA when using the section 70C power.

The Claimant in Connors applied retrospectively in August 2025 for permission to use land as a traveller site. However, the site had been subject to enforcement notices (“ENs”) since 2019 requiring the removal of unauthorised development (associated with traveller site activity) and restoration of the land. Those notices had not been complied with and remained enforceable. Relying on section 70C, the LPA declined to determine the application.

The Claimant challenged that decision on three grounds. Grounds 1 and 2 were based on what the Claimant described as “fundamental” changes to national planning policy. Those changes, in essence, were firstly the introduction of the concept of “grey belt” land and secondly a change to traveller sites not being per se inappropriate development in the green belt. The Claimant’s three grounds were: (i) the statutory purpose of section 70C was thwarted because the Claimant could not have the merits of their application considered following the changes in planning policy; (ii) the LPA was under a duty to consider the changes in planning policy in undertaking the section 70C exercise; and (iii) the LPA should have given reasons for not considering the changes in planning policy.

Fordham J. rejected the challenge on all grounds. On the purpose challenge the Judge drew attention to the overlap test which triggers the power to use section 70C (i.e. does the application for permission overlap in whole, or in part, with the pre-existing EN(s)?). The Judge highlighted that once the power was triggered the LPA has a “broad discretion” as to whether they are “prepared” to consider the planning application (para 24). In essence, if the overlap test is met, the statutory purpose is also met because the planning merits which constituted the breach of planning control (and which overlap with the new planning application) had the opportunity to be considered via the EN appeal process.

On ground 2, the Judge considered that there was real force in the adverse potential for land sterilisation if section 70C is used even when there has been a fundamental change in planning policy. However, the Judge considered that on the facts of this case, section 70C had been used properly and mainly to enable enforcement of the ENs. In those circumstances the Judge considered that the LPA was entitled to not consider the planning merits (para 26).

Finally, on ground 3, the Judge considered that in this case there was no obligation to explain why it disregarded the planning merits issue. The Judge noted it would be a “strong thing for public law to require reasons for a decision to address a feature which the decision-maker is entitled to disregard, in order to explain why it was not considered relevant”, although he left open the possibility that such argument could potentially succeed (para 28).

Comment

There are three takeaways from this case. Firstly, there may be circumstances where an LPA must consider planning policy changes and their impact on the application for planning permission. This case does not set hard and fast rules on the issue. Secondly, the Judge considered that the position on ground 2 may have been “very different” if there had been compliance with the EN (para 26). This makes sense, given that compliance would essentially resolve the reason why the EN was served in the first place. Whilst compliance does not automatically extinguish the EN – allowing section 70C to still be used – greater engagement with the planning merits may be needed by the LPA if it is to use the section 70C power. Thirdly, this may put to bed purpose challenges on section 70C because, in essence, as long as an LPA follow the overlap test questions (as set out in paragraph 64 in Moran) the purpose the provision is met.

The judgment can be found here.