Sam Smith argued that fresh noise and odour evidence, new intended occupiers and changed planning circumstances meant the council should reopen the planning merits. Deputy High Court Judge Karen Ridge refused permission for judicial review on all nine grounds.
The ruling, handed down on 22nd September 2026, is a practical application of the Court of Appeal’s recent decision in Moran v Medway to a repeat application after enforcement action.
The site had already been through enforcement and an appeal
The case concerns land at Valley Lane, Long Bennington, close to the A1 and next to a maggot farm.
South Kesteven served an enforcement notice in April 2021 over the unauthorised occupation of Traveller caravans. A ground (a) enforcement appeal then put the planning merits before an Inspector.
Noise from the A1, odour from the adjoining business, pitch shortage and personal circumstances were all considered before the appeal was dismissed in September 2022.
After a 13-pitch application was declined under section 70C in 2024, Mr Smith returned in February 2025 with another 13-pitch proposal and fresh noise, odour, ecological and personal circumstances material. The council again declined to determine it.
The claimant said circumstances had moved on
The High Court challenge argued that the 2025 application was materially different from what the Inspector had already rejected.
Mr Smith relied on a bund and acoustic fencing, new arguments about the maggot farm’s environmental permit, a larger Traveller pitch requirement, changed national policy and different intended occupiers.
He also relied on a recent Foston appeal involving A1 noise and said the changes required South Kesteven to reopen the planning merits.
The court said section 70C did not require another full planning balance
The court disagreed.
Applying Moran v Medway, the judge said an authority using section 70C does not have to carry out the equivalent of a full fresh planning application assessment before deciding whether to decline determination.
Instead, the council could look at the new material and ask whether it raised points which materially changed the position enough to justify reconsidering the planning merits.
South Kesteven’s Environmental Protection Officer had considered the revised noise assessment, the proposed bund and acoustic fence, and the new arguments about the environmental permit. The officer remained concerned about the evidence and concluded that the position was not materially different from that already examined through the enforcement appeal.
The court held that conclusion was not arguably irrational.
Pitch shortage and personal circumstances were not ignored
The claimant also said pitch shortage, policy changes and the intended occupiers’ circumstances should have been weighed against the noise and odour concerns.
But the judge said that would effectively require another full planning balance, which Moran says is not mandatory at the section 70C stage.
The earlier Inspector had already given significant weight to pitch need and personal circumstances. South Kesteven knew the later proposal involved more people and different occupants, but was entitled to conclude that the overall case was not materially different enough to reopen the merits.
The Foston appeal involved a different site, evidence and planning context, so the judge held it was not a mandatory consideration.
All nine grounds failed
Fair hearing, Article 8, equality and wider rationality arguments also failed. The judge found that the officer report showed awareness of the occupiers’ Gypsy and Traveller status, personal circumstances and the need for pitches.
A suggestion that the council should have considered a smaller scheme also went nowhere because no such request had been made. Permission for judicial review was refused on all grounds.
Why the South Kesteven section 70C ruling matters
The South Kesteven section 70C ruling does not create a rule that new evidence can never justify a fresh determination. Its significance is more practical.
Where the planning merits have already been tested through enforcement, more material does not automatically force a new determination. The council must still consider whether later evidence or circumstances make the case materially different.
Applicants need to show what has genuinely changed. Councils should show that they considered that new material before deciding it did not justify reopening the merits.
Planning Geek has a full case-law analysis of Smith v South Kesteven, together with the locally hosted approved judgment for Gold Members. Our wider guide to section 70C explains when the power can be used.
The Supreme Court granted permission to appeal in part in Moran on 30th July 2026. The Court of Appeal decision remains current, but section 70C is still a live appellate issue.
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