Background
Derek Kelly, the neighbour of a property in Oxfordshire, sought judicial review of West Oxfordshire District Council’s refusal to take planning-enforcement action against works carried out by Frank Creese. The works included a garage/store and extensions to the main house which Mr Kelly said departed from the relevant permissions and approved plans.
The Council had initially refused a retrospective section 73 application concerning the garage in May 2024, finding it overbearing to Mr Kelly’s property. A planning inspector later allowed Mr Creese’s appeal. Following further correspondence and site assessments, the Council said in June and August 2025 that the as-built development caused no material planning harm and that enforcement would serve only to regularise technical breaches. Mr Kelly later supplied a surveyor’s report and alleged intentional unauthorised development; the Council’s February 2026 letter maintained its position.
The Court’s Holding
Timothy Corner KC, sitting as a Deputy High Court Judge, refused Mr Kelly permission to apply for judicial review. The claim was out of time. The operative decisions not to enforce were made in June 2025 and, on reconsideration, August 2025; the February 2026 letter did not amount to a fresh decision merely because it responded to later correspondence and evidence.
The judge also held that the proposed grounds were unarguable. Intentional unauthorised development can be a material consideration in enforcement decisions, but read in context the Council’s statement that intention was irrelevant concerned the separate question of amenity harm. In any event, it was highly likely the Council would still have declined enforcement given its finding of no harm. The Council had adequately explained its departure from the 2024 committee refusal by referring to the inspector’s decision and assessments by further officers, and its planning judgment was not irrational.
Key Takeaways
- Later correspondence does not restart the judicial-review time limit unless the authority truly makes a fresh decision.
- Intentional unauthorised development is capable of being material in planning enforcement, but does not compel enforcement where the authority finds no relevant planning harm.
- An authority may explain a non-enforcement decision through the correspondence as a whole, including why it has departed from an earlier position.
Why It Matters
The decision underscores the short and strict six-week period for planning judicial review. A disappointed neighbour cannot extend that period simply by presenting additional material and inviting the authority to reconsider an earlier enforcement decision.
It also confirms the breadth of a local planning authority’s enforcement discretion. Courts will be slow to interfere with a reasoned planning judgment that breaches are technical and cause no material harm, particularly where the alleged legal error would not realistically have changed the outcome.