Background
Thomas Connors purchased land adjacent to Knockholt Railway, Sevenoaks Road, Halstead in February 2025 — land burdened by two extant enforcement notices (ENs) issued by Bromley London Borough Council in May 2019. One EN addressed unauthorised operational development (hardstanding, fencing, a mobile home); the other addressed an unlawful material change of use from agricultural land. The material-change-of-use EN survived a planning inspector’s dismissal of an appeal in December 2019, and the land had never been brought into compliance: three criminal convictions for non-compliance followed between 2021 and 2024. Connors, having placed caravans on the site, submitted a retrospective planning application in August 2025 for two Gypsy Traveller pitches with caravans, touring caravans, and amenity dayrooms.
In November 2025, Bromley’s Assistant Director of Planning exercised the discretionary power under s.70C of the Town and Country Planning Act 1990 to decline to determine (DTD) the application on its planning merits. The officer’s report underpinning that decision focused on the extant ENs, the site’s repeated planning refusal history, and the benefit of preserving the council’s ability to pursue enforcement. Connors sought judicial review, arguing that December 2024 changes to national planning policy — principally the introduction of “grey belt” land under NPPF24 and revised Planning Policy for Traveller Sites 2024 (PPTS24), which together could render a traveller site on qualifying green belt land no longer “inappropriate development” — made the DTD decision unlawful.
The case turned on the proper scope of the s.70C discretion, as authoritatively explained by the Court of Appeal in R (Moran) v Medway Council [2026] EWCA Civ 484. Three grounds for judicial review were advanced: (1) that the decision was inconsistent with the statutory purpose of s.70C; (2) that the December 2024 national policy shift was an obviously material consideration the LPA was duty-bound to take into account; and (3) that the officer’s report gave legally inadequate reasons for ignoring the changed policy framework.
The Court’s Holding
Fordham J dismissed all three grounds. On the first ground, the court held that the officer’s report correctly identified the statutory purpose of s.70C — preventing successive applications in respect of the same breach of planning control — and that the decision was not inconsistent with that purpose. The s.70C power is triggered by statutory conditions (a pre-existing EN and an application covering the same breach in whole or in part), both of which were plainly satisfied. Once triggered, the discretion is broad and is not circumscribed by whether the “mischief” of a true double-determination is present; nor does a change in national planning policy create a legally cognisable “new fruit” that takes the application outside the scope of the power.
On the second ground — the high-water mark of the claim — the court declined to hold that the December 2024 grey-belt and traveller-site policy changes were an obviously material consideration to which the LPA was obliged to have regard. On the particular facts, the decision-maker was entitled to concentrate on the ongoing, defiant non-compliance with the ENs (with no “reset” of the land), the repeated history of rejected applications, the objectors’ calls for restoration, and the council’s legitimate interest in maintaining a clear enforcement position. Fordham J noted that whether a consideration is “obviously material” is a fact- and case-specific question, and warned — echoing Kerr J in Moran — against treating changed planning policy as a mandatory consideration that forces an LPA to stray into the very planning merits that s.70C permits it to decline to determine.
On the third (reasons) ground, Fordham J followed the same reasoning, finding that the officer’s report gave adequate and intelligible reasons for the DTD decision — centred on the extant ENs, ongoing non-compliance, and enforcement objectives — without being obliged to explain why it was not engaging with the changed national policy.
Key Takeaways
- The s.70C DTD discretion is broad: once the statutory trigger conditions are met, an LPA may lawfully decline to determine a retrospective planning application without reviewing its planning merits, even where national planning policy has fundamentally changed since the enforcement notice was issued.
- Continuing defiance of an enforcement notice — with no compliance, no reset, and multiple criminal convictions — is a weighty factor that can legitimately dominate the exercise of s.70C discretion, allowing an LPA to sidestep arguments about changed national policy (here, the grey-belt and revised traveller-site framework introduced by NPPF24 and PPTS24 in December 2024).
- The court left open the possibility that the position could be different where an applicant has achieved a genuine “reset” of the land to compliance before submitting a fresh application, suggesting that voluntary compliance might remove the central factual basis for refusing to engage with changed planning merits.
- There is no “fresh claim” analogue under s.70C: applicants cannot invoke materially changed national policy to compel a planning-merits determination as of right; the LPA retains its discretionary gatekeeping role.
Why It Matters
This decision is significant for local authorities managing enforcement on sites occupied by Gypsy and Traveller communities, especially following the December 2024 policy shift that created “grey belt” land and softened restrictions on traveller sites in parts of the green belt. Councils concerned about repeated retrospective applications can take confidence that the s.70C power remains a robust tool even where applicants invoke genuinely new national policy arguments, provided the underlying enforcement notices remain live and unmet. The judgment also signals that sophisticated arguments framed around sterilisation of land or policy frustration will not, without more, convert changed national planning policy into a mandatory consideration that bypasses the DTD gateway.
At the same time, Fordham J’s remarks about the significance of a “reset” introduce an important qualification: landowners who genuinely remediate a site and bring it into compliance may be able to reframe a subsequent application in a way that weakens the factual basis for a DTD decision. Practitioners advising on traveller-site development — particularly on sites with historic ENs — should carefully assess whether voluntary compliance and restoration could shift the legal landscape before a fresh application is made.