R (on the application of Patrick Moran) v Medway Council [2026] EWCA Civ 484

Moran v Medway is the first Court of Appeal judgment to give a full analysis of section 70C of the Town and Country Planning Act 1990. The court held that the power to decline to determine an application can apply to a prospective planning application, not only a retrospective application for development already carried out.

There is an important current-law warning. On 30th July 2026 the Supreme Court granted permission to appeal in part in UKSC/2026/0072. The appeal includes the questions whether section 70C can apply to a prospective application and whether the Court of Appeal correctly identified the statutory purpose of the section. Until the Supreme Court gives judgment, Moran remains the current Court of Appeal authority but this area is not finally settled.

Neutral citation

[2026] EWCA Civ 484

Court

Court of Appeal (Civil Division)

Judgment date

17th April 2026

Judge

Lord Justice Peter Jackson, Lord Justice Arnold and Lord Justice Dove

Case number

CA-2025-000610

What Moran v Medway decided

The case concerned land at Sharps Green in Rainham, Kent. An enforcement notice had been served in 2017 against residential use, caravans and mobile homes, hardstanding and other operational development.

There followed a long history of applications, section 70C decisions, injunction proceedings and direct action by Medway Council. By the time Patrick Moran submitted the application at the centre of the Court of Appeal case in September 2023, the council had already used section 70C repeatedly and had twice taken direct action to clear the site.

The 2023 application proposed residential Gypsy and Traveller use, caravans and mobile homes, four day rooms and a stable. Medway decided that the proposal overlapped with matters specified in the existing enforcement notice and declined to determine it under section 70C.

The High Court upheld that decision. The Court of Appeal dismissed Mr Moran’s appeal.

Section 70C can apply to a prospective application

The heading to section 70C refers to a power to decline to determine a retrospective application. Mr Moran argued that this meant the power could only be used where the applicant was seeking permission for development which was already physically present on the land.

The Court of Appeal rejected that interpretation.

The operative words of section 70C ask whether granting the new application would involve granting permission, in whole or in part, for matters specified in a pre-existing enforcement notice as constituting a breach of planning control.

The section also refers to applications for permission in principle, which are inherently prospective. Lord Justice Dove considered that an additional indication that Parliament intended the power to reach beyond purely retrospective applications.

The enforcement notice does not disappear when the site is cleared

Another important argument was that Medway had already taken direct action and removed the unauthorised development from the site. Mr Moran said section 70C should therefore no longer apply to a later proposal for development which was not physically present when the new application was made.

The Court of Appeal again disagreed. There is nothing in section 70C which says the power ceases to be available once an enforcement notice has been complied with or a council has taken direct action.

An enforcement notice can continue to have legal effect after compliance. In particular, section 181 of the 1990 Act prevents a use or development stopped by an enforcement notice simply being resumed as though the notice had vanished.

The statutory purpose is avoiding repeated consideration of the same enforced breach

The Court of Appeal rejected the narrower argument that section 70C is only aimed at abusive applicants trying to delay enforcement or wear a council down with repeated retrospective applications.

Those situations can certainly be relevant. But the court identified the statutory purpose more broadly.

At its heart, section 70C prevents the occupier of land subject to an enforcement notice from being able to insist upon more than one determination of the planning merits of the breach caught by that notice, unless the local planning authority is prepared to undertake that further determination.

Possible collateral benefits include certainty over the planning status of the land, preventing unnecessary delay to enforcement action and avoiding attempts to game the system. Those are consequences of the wider purpose rather than additional statutory tests which always have to be proved.

The three practical section 70C questions

The Court of Appeal set out a useful sequence for councils considering section 70C:

• is there a pre-existing enforcement notice on the whole or part of the application site?
• does the new application seek permission for development which, in whole or in part, includes development identified as a breach in that enforcement notice?
• if it does, should the council exercise its discretion to decline to determine the application or instead accept it and determine the planning merits?

The first two questions decide whether the statutory power is available. The third is the discretionary decision whether to use it.

Our detailed guide to section 70C explains how this works in practice.

The council has a broad discretion once section 70C is engaged

Section 70C does not prescribe a fixed checklist of matters which every council must consider before exercising the discretion.

The Court of Appeal described the discretion as broad. A challenge alleging that the council irrationally failed to consider a particular planning matter therefore faces a high hurdle.

That does not mean the decision is immune from judicial review. An obviously material consideration may still have to be taken into account, and the authority must exercise the discretion for a lawful purpose. Moran is authority against turning every potentially relevant planning matter into a mandatory consideration.

A full new planning merits assessment is not automatically required

Medway did look at the current planning position, including landscape effects, flooding, environmental designations and the acknowledged shortage of Gypsy and Traveller pitches.

The Court of Appeal held that section 70C did not require the council to carry out the equivalent of a full planning application determination before deciding whether to decline to determine the application.

That would substantially undermine the point of the statutory power.

Whether a council chooses to revisit changed planning circumstances remains part of its discretion, subject to ordinary public law principles.

The Supreme Court appeal is now pending

The Court of Appeal judgment is not the final word. The Supreme Court granted permission to appeal in part on 30th July 2026.

The Supreme Court case is R (on the application of Moran) v Medway Council, UKSC/2026/0072. Permission was granted on Grounds 1 and 2 and refused on Ground 3.

The issues accepted for appeal include whether section 70C can apply to a prospective planning application and whether the Court of Appeal correctly construed the purpose of the provision.

That means the propositions above accurately describe the current Court of Appeal position, but anyone relying on Moran should check whether the Supreme Court has since handed down judgment.

Retrospective permission is a separate issue

Section 70C is often encountered alongside a retrospective planning application, but Moran shows why the two concepts are not identical.

An application can be prospective and still fall within section 70C if granting it would grant permission for matters already specified in the pre-existing enforcement notice.

Equally, section 70C is discretionary. A council which has the power to decline does not have to use it. It can decide to determine the new application on its merits.

Read the full Moran judgment

Planning Geek has replaced the earlier report summary with the approved Court of Appeal judgment itself. Gold Members can open the protected PDF below.

Related Planning Geek guidance

See Section 70C: when a council can decline an application and our guide to retrospective planning permission.

Moran Case Law Page Updated: 9th September 2026