Section 70C: when a council can decline to determine a planning application

Sometimes a planning application never reaches the stage where the council decides whether it should be approved or refused. If an existing enforcement notice already deals with the same breach of planning control, section 70C of the Town and Country Planning Act 1990 may allow the local planning authority to decline to determine the application at all.

That is quite different from a refusal. The council is not saying that the proposal fails on its planning merits. It is saying that Parliament has given it a discretion not to reopen planning merits which are already tied up with an enforcement notice.

The scope of section 70C has become much clearer following three important 2026 cases: R (Moran) v Medway Council, R (Connors) v Bromley London Borough Council and R (Baker) v Reigate and Banstead Borough Council. There is one important warning before relying on them: the Supreme Court granted permission to appeal part of Moran on 30 July 2026, so the Court of Appeal decision remains the present law but some of its central conclusions are now under review.

What section 70C actually says

Section 70C applies where there is a pre-existing enforcement notice. For this purpose that means an enforcement notice issued before the planning application was received by the local planning authority.

The council may decline to determine an application for planning permission or permission in principle if granting it would involve granting permission, over the whole or part of the relevant land, for the whole or part of the matters identified in that enforcement notice as the breach of planning control.

So the practical sequence is:

• is there an enforcement notice which predates the application
• does the application seek permission for all or part of the development identified as the breach in that notice
• if it does, should the council exercise its discretion to decline to determine the application

The first two questions decide whether the power is available. The third is a discretionary planning decision for the council.

Section 70C is not the same as refusing permission

This distinction matters. A refusal means the planning merits have been assessed and the council has decided against the proposal. A section 70C decision means the council has chosen not to determine those merits.

That also affects appeal rights. The ordinary section 78 right of appeal does not give you a route to appeal against the merits of a section 70C decision. If the council has lawfully exercised the power, the planning system does not simply move the same proposal to an Inspector for a fresh merits decision.

If an enforcement notice is still appealable, the merits may instead be capable of being argued through a ground (a) enforcement appeal. But the interaction between a planning application and an enforcement notice is full of traps, including circumstances where making the application first can affect whether ground (a) remains available. Take advice before treating one route as a substitute for the other.

Moran: section 70C can presently reach a prospective application

In R (Moran) v Medway Council [2026] EWCA Civ 484, the Court of Appeal considered section 70C for the first time.

The argument was that the provision should be confined to retrospective applications because that was how it had historically been described. The Court of Appeal disagreed. Looking at the words of section 70C itself, it held that the power can also apply to a prospective application if granting that application would nevertheless involve granting permission for matters caught by the pre-existing enforcement notice.

The Court also rejected the idea that section 70C is only available where the application is abusive or is being used to delay enforcement. Its stated purpose was broader: to prevent an occupier being able to insist upon repeated determinations of planning merits which have already become part of the enforcement process.

That is the current Court of Appeal position. However, the Supreme Court has granted permission to appeal in part in UKSC/2026/0072. The issues include whether section 70C can apply to a prospective application and whether the Court of Appeal correctly identified the statutory purpose. Until the Supreme Court decides the appeal, anyone dealing with a prospective application should treat this area as live law rather than a point that has finally settled.

Connors: changed policy does not automatically force a new merits decision

R (Thomas Connors) v Bromley London Borough Council [2026] EWHC 1517 (Admin) looked at the discretion once section 70C had been triggered.

The site was subject to enforcement notices which had remained in force and had been disobeyed for years. The claimant argued that a major change in national planning policy, including the new grey-belt approach, meant the council had to reconsider the planning merits rather than rely on section 70C.

The High Court dismissed the claim. Fordham J held that section 70C gives the council a broad discretion and that a change in policy does not automatically create a duty to reopen the planning merits.

There is an important qualification. The judgment did not invent a freestanding legal rule that might be called a ‘no reset principle’. The absence of any reset was part of the facts. The enforcement notices remained extant and the breaches had continued. The judge expressly observed that the position could be very different if there had been a genuine reset.

That means the practical history matters. A person who has complied with the notice, restored the land and later comes forward with a genuinely new proposal may be in a materially different position from someone who simply continues the breach and asks the council to decide it again under newer policy.

Baker: comply first if you want a genuine reset

R (Baker) v Reigate and Banstead Borough Council [2026] EWHC 2124 (Admin) gives that distinction some useful practical force. The case concerned a second retrospective application for a Gypsy and Traveller site after enforcement notices had been upheld and the compliance periods had expired. The applicant relied on later national policy changes, including grey belt policy and changes affecting Gypsy and Traveller planning policy.

Timothy Corner KC, sitting as a Deputy High Court Judge, followed Moran and Connors. Section 70C gives the council a broad discretion and the later change in planning merits was not, on these facts, an obviously material consideration which compelled the authority to determine the new application. The decision to decline to determine was neither irrational nor disproportionate.

The reset point needs to be stated carefully. Reigate and Banstead submitted that the claimant should have complied with the enforcement notices and could then have made a prospective application seeking to take advantage of the later national policy. In dismissing the challenge, the judge rejected the attempt to distinguish Connors and treated the absence of any genuine reset as an important part of the factual history.

That does not create an automatic right to permission after compliance. It does show why continued breach and a second retrospective application are materially different from restoring the site first and then coming forward prospectively. Baker therefore reinforces, rather than displaces, the approach already emerging from Moran and Connors.

What should the council consider when deciding whether to use section 70C?

Once the statutory overlap exists, section 70C says the authority may decline to determine. It does not say it must.

Relevant circumstances can therefore include the history of the site, the nature and extent of the overlap, the status of the enforcement notice, whether the notice has been complied with, whether the new proposal is genuinely different, and whether there have been material changes since the earlier enforcement history.

But there is no single checklist which automatically converts those matters into a right to a merits determination. Connors is particularly useful on this point: the exercise remains fact-sensitive.

Does a new NPPF or Local Plan defeat section 70C?

Not by itself. A new National Planning Policy Framework, a new Local Plan policy or another major change can be relevant to the council’s discretion. What it does not do is automatically switch section 70C off.

The sensible question is not simply ‘has policy changed?’ but ‘what does that change mean in the history and circumstances of this particular site?’

A clear break with the earlier breach, restoration of the site, a materially different scheme or a major change in the planning framework may strengthen the case for a fresh determination. Continued non-compliance with the same notice points the other way.

What if the council gets section 70C wrong?

Because there is no ordinary merits appeal against a decision to decline to determine, a legal challenge will normally be by judicial review. That is not an appeal on the planning merits. The court asks whether the council acted lawfully, for example whether section 70C was actually engaged, whether it misunderstood its discretion or whether its reasoning was otherwise unlawful.

Planning judicial review operates on a very short timetable. If a section 70C decision is important enough to challenge, do not leave it sitting in an inbox while trying to persuade the planning department to change its mind.

Section 70C and retrospective planning permission

The provision still matters enormously for development that has already happened. Our guide to retrospective planning permission explains the wider section 73A route, including why making an application after the event does not make the breach lawful while the application is being considered.

The lesson is simple: once an enforcement notice is involved, do not assume that submitting another planning application guarantees a fresh decision. Check the notice, the timing, the overlap and your appeal rights first.

Relevant legislation and case law

• Town and Country Planning Act 1990, section 70C
• R (Moran) v Medway Council [2026] EWCA Civ 484
• R (Thomas Connors) v Bromley London Borough Council [2026] EWHC 1517 (Admin)
• R (Baker) v Reigate and Banstead Borough Council [2026] EWHC 2124 (Admin)
• R (Moran) v Medway Council, Supreme Court case UKSC/2026/0072 — permission to appeal granted in part on 30 July 2026

Section 70C page updated: 4th September 2026