Section 70C and declining to determine a retrospective bid

Section 70C of the Town and Country Planning Act 1990 lets a local planning authority refuse to entertain a planning application at all, without ever reaching the merits, where granting permission would authorise something already covered by an enforcement notice. It is not a refusal. The application is simply not determined, no decision notice issues, and there is no right of appeal to the Planning Inspectorate against the authority's choice. For anyone who has built first and applied afterwards, section 70C planning practice is the single provision most likely to close the door.

The power arrived through the Localism Act 2011, which was aimed squarely at applicants who ran an application and an enforcement appeal in parallel to buy time. Understanding how narrow the remaining routes are matters before the first spade goes in the ground, not after the notice lands.

What the power allows

An authority may decline to determine an application where the application is for planning permission for the whole or part of any matters specified in a pre-existing enforcement notice as constituting a breach of planning control.

Three features do most of the work. The power is discretionary, so an authority may use it or not, and some do not use it at all on minor householder breaches. It bites on matters specified in the notice, which means the drafting of the notice controls the scope of the power. And it can be applied to part of an application, so a scheme that mixes enforced-against development with new work can be split, with the authority declining the enforced-against element.

The trigger is the existence of the notice, not its outcome. A notice under appeal is still a notice for these purposes.

When the power bites

Sequence is everything. The notice must have been issued before the application is made. An application submitted while the authority is still investigating, before any notice is served, cannot be met with section 70C.

That is why the first response to an enforcement investigation is usually to get a properly prepared application in early. If you have received a planning contravention notice, the authority is gathering information and has not yet decided to serve. The window is open, and it can close quickly.

Two further points catch people out. A withdrawn notice removes the basis for declining, so authorities sometimes withdraw and re-serve to fix a drafting error, which resets the sequence. And where a notice has been quashed on appeal, it no longer exists, so a fresh application is not vulnerable.

How it interacts with an enforcement notice appeal

An appeal against an enforcement notice runs on statutory grounds lettered (a) to (g). Ground (a) is the planning merits argument: that permission ought to be granted for what has been built. The other grounds cover matters such as the breach not having occurred, the time limits having expired, and the steps required being excessive.

Ground (a) is the route that overlaps with an ordinary application. When an appellant pursues it, a deemed application for planning permission arises and a fee is payable, currently at twice the rate for an equivalent application. The inspector then decides the planning merits within the enforcement appeal rather than in a separate process.

So where section 70C has been used, ground (a) is usually the only surviving way to argue that the development is acceptable. Losing access to it is the real damage.

Why the ground (a) route was narrowed

Section 174(2A) of the 1990 Act removes ground (a) where an application for planning permission for the matters stated in the notice was made before the notice was issued, and that application had not been decided or had been withdrawn when the notice was served.

Read those two provisions together and the trap becomes obvious. Apply before the notice, and you may lose ground (a) at the enforcement appeal. Apply after the notice, and the authority may decline to determine under section 70C. Applicants who submit an application, wait, and then find a notice served during the determination period can end up with neither route available.

The practical answer is to force the application to a decision. A refusal gives a section 78 appeal. A non-determination appeal after the statutory period has expired gives the same. What you must avoid is leaving an application sitting undetermined while the enforcement team prepares a notice.

What is left when the authority declines

A decision to decline under section 70C carries no appeal right. The only challenge is judicial review in the Administrative Court, on the usual public law grounds, within six weeks for planning matters. That is a high bar and an expensive one, and it tests the lawfulness of the authority's approach rather than the planning merits.

More productive options usually sit elsewhere:

1. Argue that the application is materially different from the matters in the notice. A properly redesigned scheme, with reduced scale, different siting or a different use, may fall outside the notice.
2. Ask the authority to withdraw the notice as part of a negotiated solution, which it may do where a revised scheme resolves the harm.
3. Pursue ground (a) if it survives, and put the full policy case into the enforcement appeal.
4. Test immunity. If the breach is time-expired, a certificate of lawfulness under section 191 confirms it, and the authority cannot lawfully enforce.
5. Comply with the notice and then apply for something acceptable on a clean site.

Option one is where most successful outcomes sit, and it depends on how tightly the notice was drafted.

Advising a client who has already built

Start by reading the notice, not the site. Identify the matters specified, the steps required, the compliance period and the date of issue. Those four things determine every option that follows.

Then check the time limits. The Levelling-up and Regeneration Act 2023 replaced the four year rule for operational development and changes of use to a single dwellinghouse with a ten year period in England for breaches occurring after the relevant provisions came into force. Older breaches may still be governed by the four year rule, so check the commencement provisions against the date the breach began before advising anyone that they are immune.

Be blunt with clients about cost. An enforcement appeal with a ground (a) case needs the same evidence base as a full application, because the inspector is deciding the planning merits. That means a Planning Statement setting out the policy case, and usually the technical work that would have accompanied the original application, prepared after the event and often harder to produce because the building is already there. Some evidence becomes impossible: a pre-development ecology baseline cannot be recreated once a barn has been stripped.

Evidence worth gathering in the first week

Photographs with dates, invoices, delivery notes, bank statements, council tax and utility records, sworn statements from contractors and neighbours. All of it goes to when the breach began and what was built, which drives the immunity question and the accuracy of the notice.

Collect the planning history too. Old permissions, certificates, and any correspondence in which an officer expressed a view. Authorities are not bound by informal views, but a documented exchange can shape how a notice is drafted and whether it is withdrawn.

And check what the notice omitted. Enforcement notices are drafted quickly under time pressure, and a notice that describes the breach imprecisely leaves room for a revised scheme that sits outside it. That is the gap worth working in.

Once the strategy is settled, the technical documents still have to be produced. You can see which reports a scheme of this kind usually needs and draft the policy case first, then commission the specialist work the notice has made unavoidable.

This is general guidance, not legal advice. Enforcement is fact-specific and the consequences of getting the sequence wrong are severe, so take advice from a qualified planning professional or solicitor before acting. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.