Supreme Court agrees to hear appeal in s70C ‘two bites at the cherry’ dispute

Also at issue in Moran v Medway Council is whether the Court of Appeal correctly construed the purpose of section 70C; and whether the abusive nature of the planning application or its design to delay effective enforcement was a mandatory material consideration in reviewing the rationality of the decision under review.

The background to the case, as set out on the Supreme Court’s website is that in November 2020, the appellant, a Mr Moran, became the registered owner of the land which is Plot C of a site at Sharps Green in Rainham, Kent. He is a Gypsy or Traveller.

Prior to the appellant coming into ownership of Plot C, it was the subject of development control activity.

In May 2017, Medway Council, the respondent, served an enforcement notice on the then-owners of the site in respect of a number of breaches of planning control.

In May 2018, the occupants of the site made an application for a change of use of the land to the keeping of horses with a residential use for three Romany Gypsy families, three static caravans, three touring caravans and associated parking and ancillary facilities.

On 24 August 2018, following an injunction, a committal order was made in respect of the occupants, who then left the plot.

On 28 August 2018, the council relied on section 70C of the 1990 Act to decline to determine the May 2018 application for planning permission.

During the course of 2020, Medway declined to determine three further applications for planning permission in respect of the site, with similar decisions made in respect of further applications in May 2021 and April 2022.

In Spring 2020, works commenced for the purpose of, again, changing the use of the site to a residential caravan site including the stationing of three caravans, the laying of hardstanding and access works.

In February 2022, having written to the occupiers of the site complaining in relation to ongoing breaches of planning control and contravention of the extant enforcement notice, the council took further direct and enforcement action and again cleared the site.

On 8 September 2023, the appellant submitted an application concerning a change of use of the land to residential use accompanied by the siting of caravans and mobile homes together with the construction of four day-rooms and a stable building.

Further to a report from its Chief Planning Officer, Medway declined to determine the application by reference to section 70C of the 1990 Act.

The appellant challenged this decision in a claim for judicial review. According to the Supreme Court, he maintains that the council was presented with a detailed and carefully thought-through application that provided a strong case in support of the proposed development.

The claim was dismissed by Mr Justice Kerr on 20 February 2025. Mr Moran appealed to the Court of Appeal, where the Secretary of State for Housing, Communities and Local Government was permitted to intervene.

The Court of Appeal dismissed the appeal on 17 April 2026.

Lord Justice Dove said: "In my view given the language used in section 70C of the 1990 Act its purpose is clear. It is designed to enable a local planning authority to decline to determine an application for planning permission in respect of either the whole or part of a breach of planning control at a parcel of land which has a pre-existing enforcement notice issued in respect of that breach of planning control.

“It prevents a duplication of the consideration of the planning merits of the breach of planning control which is the subject of the enforcement action unless the local planning authority are prepared for that to be undertaken.

“The potential for the occupier of the land subject to the enforcement notice to insist upon more than one determination of the planning merits of the breach of planning control is in my view clearly the mischief which section 70C is aimed at and prevention of that is its statutory purpose.”

He said this meant Mr Moran’s grounds 1 and 2 must be dismissed  and “I would have reached this conclusion simply on the basis of the proper construction of the section itself and as a result of that construction the clear purpose and objective which it seeks to fulfil”.

The appellant lodged an application with the Supreme Court for permission to appeal.

A panel comprising Lord Sales, Lord Leggatt and Lady Simler has now granted permission in part.