Sam Smith, R (on the application of) v South Kesteven District Council [2026] EWHC 2435 (Admin)

Smith v South Kesteven is a 2026 Administrative Court decision applying the Court of Appeal’s approach to section 70C of the Town and Country Planning Act 1990. South Kesteven District Council had declined to determine a fresh application for 13 Gypsy and Traveller pitches on land already subject to an enforcement notice and a dismissed ground (a) appeal.

Deputy High Court Judge Karen Ridge refused permission for judicial review on every ground. The important point is a limited one: section 70C did not require the council to rerun the full planning balance merely because the 2025 application contained new evidence, new intended occupiers and changed planning circumstances. The council was entitled to ask more broadly whether the new material was materially different enough to justify reopening the planning merits.

This is an application of section 70C on its facts. It does not mean that later evidence, changed policy or different personal circumstances can never justify a fresh determination.

Neutral citation

[2026] EWHC 2435 (Admin)

Court

High Court of Justice, King's Bench Division, Administrative Court

Judgment date

22nd September 2026

Judge

Karen Ridge sitting as a Deputy High Court Judge

Case number

AC-2025-LON-001481

What happened at Valley Lane

The site at Valley Lane, Long Bennington, lies beside the A1 trunk road and next to a maggot farm. Earlier planning applications for Traveller accommodation had raised concerns about noise from the A1 and odour from the adjoining business.

South Kesteven served an enforcement notice on 1st April 2021 alleging the unauthorised occupation of Traveller caravans. An appeal followed under grounds (a) and (g). The ground (a) appeal required the Inspector to consider the planning merits, including expert noise and odour evidence, the shortage of Gypsy and Traveller pitches and the personal circumstances of the proposed occupants.

The Inspector dismissed the appeal on 30th September 2022, refused planning permission and required the residential use to cease by September 2023.

A later application for 13 pitches was declined under section 70C in February 2024. The application at the centre of this case was then submitted on 19th February 2025. It again sought 13 Gypsy and Traveller pitches, but the intended occupants were different and the application was accompanied by fresh planning, personal circumstances, noise, odour and ecological material.

On 1st April 2025 the council again declined to determine the application under section 70C.

What section 70C allows a council to do

Section 70C allows an English local planning authority to decline to determine a planning application where granting permission would involve granting permission for matters which are already identified as a breach of planning control in a pre-existing enforcement notice.

The court treated the question in two stages. First, is the statutory doorway open because the new application overlaps with matters in the earlier enforcement notice? Second, if it is, should the council exercise its discretion to decline the application rather than determine it on its merits?

The first stage was not disputed in Smith. The challenge concerned the second stage and whether South Kesteven had lawfully exercised its planning judgment.

The claimant said the new application was materially different

Mr Smith argued that the 2025 proposal was not simply a repeat of what the Inspector had considered. The case relied on a new noise assessment and mitigation measures, including a bund and acoustic fencing. It also relied on fresh arguments about the environmental permit regulating the adjoining maggot farm and whether odour should be controlled more effectively.

The claimant also relied on changed national planning policy, a substantially increased local pitch requirement said to be 36 pitches by 2026, the personal circumstances of a larger and different group of intended occupiers, and a recent appeal decision at Foston where permission had been granted for 10 static caravans despite noise from the A1.

The argument was that these changes meant the council could not rationally refuse to reopen the planning merits.

How the court applied Moran

The hearing had been deferred so that the court could take account of the Court of Appeal’s decision in R (Moran) v Medway Council [2026] EWCA Civ 484.

Moran confirms that, once section 70C is engaged, the local planning authority has a broad discretion over whether to determine the new application. It is for the authority to decide which considerations are relevant, subject to ordinary public law principles. Some matters may be so obviously material that it would be irrational to ignore them, but weight remains a matter for the decision maker.

Crucially for Smith, Moran also confirms that section 70C does not require the authority to carry out a full new appraisal of the planning merits before deciding whether to use the power. The council can examine the new material at a broader level and ask whether it raises new points which justify reconsidering the merits.

The fresh noise evidence did not require a new merits decision

The earlier Inspector had already considered noise in detail with the benefit of expert evidence. South Kesteven therefore asked whether the new acoustic material materially changed that position.

The council’s Environmental Protection Officer questioned the methodology used in the new report, including reliance on noise reduction figures associated with residential park homes when the proposal included static mobile homes and touring caravans. The officer had also considered the proposed bund and fence but did not accept that they would achieve the claimed internal noise conditions.

The judge held that it was not arguably irrational for the council to conclude that there was very little material difference between the new proposal and the evidence previously considered.

The odour permit arguments were new but took the case no further

The claimant’s arguments about the environmental permit for the maggot farm had not been made in the earlier appeal. That made them new arguments, but novelty alone was not enough.

The Environmental Protection Officer considered the permit, the use of best available techniques, the circumstances in which odour could arise and the fact that the processing building’s roller shutter door had to open during normal operations. The officer concluded that the permit arguments did not materially alter the earlier assessment of living conditions.

The court held that section 70C did not require a detailed investigation into enforcement of the environmental permit. South Kesteven had lawfully considered whether the new argument warranted reassessment of the planning merits and had given reasons for concluding that it did not.

Pitch need, policy and personal circumstances did not force a fresh planning balance

The claimant argued that the council had treated noise and odour as decisive without weighing the shortage of pitches, changed national policy, improved mitigation and the personal circumstances of the intended occupiers.

The court rejected the submission that section 70C required a fresh section 38(6) planning balance. That would effectively turn the discretionary gateway decision into another full planning application determination.

The earlier enforcement appeal had already given significant weight to the lack of a five-year supply of Gypsy and Traveller sites and had considered personal circumstances and the lack of alternative accommodation. The judge accepted that the number and identity of the proposed occupants had changed, but held that the council was entitled to take a broad view and conclude that the overall position was not materially different enough to justify another merits assessment.

The Foston appeal was not a mandatory consideration

A week before South Kesteven made its section 70C decision, an Inspector had allowed an appeal at Meadow View, Foston for 10 static caravans. That case also involved outdoor noise from the A1.

The court held that the Foston decision concerned a different site, different noise evidence and a different bundle of planning considerations. It was not so obviously material that South Kesteven was legally required to consider it when deciding whether to use section 70C.

The human rights and equality grounds also failed

The claimant argued that using section 70C prevented access to an independent planning appeal on new issues and relied on the Article 8 rights of intended occupiers, including vulnerable families without a lawful stopping place.

The judge treated those grounds as dependent on the argument that the planning circumstances had changed so significantly that the council could not rationally decline to revisit the merits. Because the earlier grounds were not arguable, the fair hearing and Article 8 arguments did not make the decision unlawful.

The Public Sector Equality Duty ground also failed. Read as a whole, the officer report showed that the council was aware of the Gypsy and Traveller status of the occupiers, their personal circumstances and the need for pitches. The court held that it was not arguable that the council had failed to have due regard to the duty.

A final rationality ground, including a suggestion that the council should have considered a split decision allowing fewer pitches, was also refused. No request for a smaller scheme had been made during the application process.

What Smith adds to Moran

Smith does not change the legal framework established by Moran. Its value is practical. It shows what a lawful section 70C comparison can look like when a repeat application arrives with genuinely new material.

The council did not ignore the new reports or circumstances. It looked at them, compared them with the matters already considered through enforcement and asked whether they materially changed the planning case enough to justify reopening the merits. On these facts, it was entitled to say no.

That is not the same as saying new evidence can never matter. A different report, a more substantial policy shift, a comparator decision much closer on its facts, or changed personal circumstances of sufficient importance could affect the discretionary decision in another case. Smith is therefore a fact-sensitive application of Moran, not a blanket rule against later applications.

There is also a current-law qualification. The Supreme Court granted permission to appeal in part in Moran on 30th July 2026. Moran remains the current Court of Appeal authority, but the proper reach and purpose of section 70C are not finally settled.

Read the full Smith judgment

The approved Administrative Court judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.

Related Planning Geek guidance

See our guide to section 70C and when a council can decline an application and the Planning Geek case-law entry for Moran v Medway.

Smith Case Law Page Updated: 22nd September 2026