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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gill, R (On the Application Of) v Central Bedfordshire Council [2015] EWHC 3458 (Admin) (02 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3458.html Cite as: [2015] EWHC 3458 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		2 December 2015

Mrs Justice Lang:

1. The Claimant seeks judicial review of the Defendant's decision dated 3 June 2015, as local planning authority, pursuant to section 70A of the Town and Country Planning Act 1990 ("TCPA 1990") to decline to determine the Claimant's application of 21 May 2015 for planning permission for the construction of a detached double garage ("the Application Garage") at his home at 171 Dunstable Road, Caddington, Bedfordshire LU1 4AN ("the site").

History

2. The site is located within the Green Belt. On 1 October 2004 permission was granted for the erection of a two-storey house at the site. The house was subsequently built and it had an external footprint of approximately 118 square metres.
3. On 22 February 2007 the Defendant granted planning permission to the Claimant for the erection of a detached double garage at the site (Reference SB/TP/07/0022) ("the Approved Garage"). The Approved Garage was to be sited 2 metres from the house and its dimensions were as follows: 5.66 metres wide; 5.615 metres deep; 4.8 metres high. Condition 1 required that the development be begun within three years of the date of the permission (i.e. by 21 February 2010). The development was not begun within that period and so the planning permission expired.
4. In March 2010 the Claimant was granted planning permission for a single-storey rear extension to the house. In July 2010 the Claimant applied for and was granted planning permission for a two-storey rear extension to the house. These extensions added approximately 77 square metres to the footprint of the house. The width of the frontage of the house, as extended by the 2010 permitted extensions, was approximately 14 metres.
5. In about April 2011, the Claimant commenced the construction of the rear and side extensions and a double garage ("the Constructed Garage"). The Constructed Garage did not conform to the plans approved under planning permission SB/TP/07/0022 which had, in any event, expired in February 2010. In particular, the Constructed Garage was significantly larger than the Approved Garage. It was 6.75 metres wide; 11.45 metres deep and 6.2 metres high, with an external footprint of 77 square metres. It was sited only 1.1 metres from the house.
6. From November 2011 the Defendant and the Claimant engaged in correspondence regarding the Constructed Garage, during the course of which the Defendant pointed out that the construction of the garage had not commenced prior to the expiry of the planning permission and that the 2007 planning permission had not been implemented, and had lapsed.
7. On 3 September 2013 the Council issued an enforcement notice alleging the unauthorised erection of a double garage, in breach of planning controls. The reasons stated that the garage "when considered in the light of more recently approved extensions represents a cumulative addition of the original dwelling and outbuildings which exceeds that which would normally be considered in the Green Belt". The notice required the Claimant to demolish the double garage and remove all resulting materials from the land within two months of the notice taking effect (i.e. by 1 December 2013).
8. The Claimant appealed against the enforcement notice on the grounds set out in section 174(2)(a) (that planning permission ought to be granted); (f) (that the steps required by the notice exceeded what was necessary to remedy the breach of planning control) and (g) (that the compliance period fell short of what should reasonably be allowed).
9. By a decision letter dated 27 March 2014, the Inspector appointed by the Secretary of State to determine the appeal, varied the time for compliance in the enforcement notice to allow the Claimant 6 months and otherwise dismissed the Claimant's appeal and upheld the enforcement notice.
10. The Inspector found as follows:

i) The Constructed Garage, by virtue of its close proximity to the dwelling, should be considered as an extension to the house.

ii) In deciding whether the Constructed Garage constituted inappropriate development in the Green Belt, it was appropriate to consider whether it had resulted in disproportionate additions over and above the size of the original building (that being the test for the exception to the general rule that the construction of new buildings will constitute inappropriate development in the Green Belt, pursuant to paragraph 89 of the National Planning Policy Framework ("NPPF")). By Annex 2 of the NPPF the original building was as it was originally built under the 2004 planning permission.

iii) The Constructed Garage, in addition to the previous extensions, had resulted in an increase in the footprint of the original building from approximately 118 square metres to approximately 272 square metres (i.e. 118m² of the original building + 77m² for the previous extensions + 77m² for the Constructed Garage). This amounted to an increase of approximately 130%. The Constructed Garage increased the width of the frontage from approximately 14 metres to approximately 21 metres, which represented an increase of over 40%.

iv) The Council's Local Plan gave no specific numerical thresholds as to when an extension would result in a disproportionate addition over and above the size of the original building, and so an exercise of judgment was required.

v) Given the increase in both footprint and width of the frontage, and in considering the size, bulk and siting of the Constructed Garage, cumulatively with the previous extensions, it would constitute a disproportionate addition to the original building and thus constituted inappropriate development in the Green Belt.

vi) The Constructed Garage would introduce a structure of considerable scale to a previously undeveloped part of the site. As a result the open character of the appeal site would be harmfully reduced, as would the openness of the Green Belt. The harm to the openness of the Green Belt would be significant.

vii) The harm by reason of inappropriateness should be afforded substantial weight, added to which was the significant harm caused to the openness of the Green Belt and there were no very special circumstances to justify the grant of planning permission for the inappropriate development in the Green Belt.

11. The Inspector rejected the Claimant's proposals for a reduction in the size of the Constructed Garage so as to comply more closely to the terms of the planning permission granted in 2007. The Inspector said:

"26. … The appellant accepts that major rebuilding work would be required to achieve a development that would accord with the 2007 planning permission. In this case, the development constructed varies in footprint, width, depth and height and the works would be tantamount to a newly constructed development. I am not satisfied that I could specify this as an alternative requirement to those in the notice in sufficiently clear and precise terms, given the major rebuilding work that would be necessary. The suggested alternative would not remedy the breach.

27. To conclude, the complete removal of the double garage and all associated materials as is set out in the requirements, does not exceed what is necessary and the appeal on ground (f) must fail."

12. Pursuant to the Inspector's decision, the Claimant was required to demolish the Constructed Garage by 27 September 2014. He has failed to do so. His daughter and granddaughter are living in upstairs rooms in the Constructed Garage.
13. The Claimant unsuccessfully challenged, by way of s.289 proceedings in the High Court, the decision of the Secretary of State on the enforcement appeal.
14. The Claimant applied for retrospective planning permission for the Constructed Garage on 22 May 2014. This application was refused by the Council on 17 July 2014.
15. The Claimant sought to appeal against this decision but his appeal was lodged out of time.
16. The Claimant submitted an application for a certificate of lawful use pursuant to section 191 TCPA 1990 on 29 May 2014 in respect of the Constructed Garage, which was refused by the Council on 24 July 2014.
17. The Claimant submitted an application for retrospective planning permission for the double garage, which was described as an 'Annexe' in the application document, on 1 July 2014, which the Council declined to determine on 4 July 2014. The Claimant's agent claimed in subsequent correspondence with the Council that its decision not to determine the application was wrong because the 'Annexe' was "absolutely nothing whatsoever like the garage which was the subject of enforcement".
18. The Claimant submitted an application for planning permission for the double garage, with a number of alterations to the built form of the front elevations on 25 September 2014, which the Council declined to determine on 1 October 2014.
19. The Claimant submitted a part-retrospective application for the retention of the existing double garage and demolition of an existing stable block, which the Council declined to determine on 31 March 2015.
20. The application which is the subject of these proceedings was made on 21 May 2015. The Claimant submitted an application for the part demolition and lowering of the roof of the existing double garage ("the Application Garage"). The Application Garage was to be sited 1.1 metres from the dwelling and its proposed dimensions were as follows: 4.55 metres high; 7.9 metres deep; 6.85 metres wide with an external footprint of approximately 54 square metres.
21. I am grateful to counsel for the Defendant for providing a table which is annexed to this judgment showing the comparative measurements of a) the Approved Garage; b) the Constructed Garage and c) the Application Garage. This shows that the 2007 Approved Garage would have resulted in an increase in footprint of 27% over and above the size of the original dwelling. The Constructed Garage, when considered cumulatively with the other extensions constructed in 2011, has resulted in an increase of 131% over and above the size of the original dwelling. The Application Garage, when considered with the other extensions, would result in an increase of 111% over and above the size of the original dwelling.
22. The Defendant declined to validate or determine the Claimant's application, exercising the powers in section 70A TCPA 1990. The decision letter of 3 June 2015 stated:

"1...The current application seeks to reduce the size of the existing unlawful building. Your attention is however drawn to the Planning Inspector's Enforcement Appeal decision in respect of the building...The Inspector dismissed the ground (a) appeal on the grounds that, taken together with previous extensions, the garage constitutes a disproportionate addition to the original dwelling house, paragraph 17. The existing building measures 11.5 x 6.8 metres or a footprint of 78 sqm with a ridge height of 6.2 metres. Given the proximity of the garage to the host dwelling, the inspector opined that this represents an increase in the footprint of the original dwelling of 130%. The current proposal would measure 7.9 x 6.9 metres or a footprint of 54.5sqm with a ridge height of 4.6 metres thus representing an increase in the footprint of the original dwelling of 91%. Even with the proposed 1.6 metre reduction in the height of the building, the conclusion reached by the Inspector would likely be the same.

2. Furthermore, by seeking a part demolition and lowering of the roof of the existing unlawful building, the effect of the current proposal is to alter the terms of the Enforcement Notice which requires the complete demolition of the garage. This proposition was considered under the ground (f) appeal and failed. At paragraph 27, the Inspector concluded that the complete removal of the garage and all associated materials did not exceed what is necessary to remedy the breach. It is therefore not possible to validate an application that seeks permission to alter or amend a building which is itself unlawful."

Legal framework

23. Section 70A TCPA 1990 confers power on local planning authorities to decline to determine subsequent applications for a two year period following an adverse decision on a planning application or appeal.
24. Section 70A TCPA 1990 provides:

"70A Power to decline to determine subsequent application

(1) A local planning authority may decline to determine a relevant application if–

(a) any of the conditions in subsections (2) to (4) is satisfied, and

(b) the authority think there has been no significant change in the relevant considerations since the relevant event.

(2) The condition is that in the period of two years ending with the date on which the application mentioned in subsection (1) is received the Secretary of State has refused a similar application referred to him under section 76A or 77.

(3) The condition is that in that period the Secretary of State has dismissed an appeal

(a) against the refusal of a similar application...

(4A) A local planning authority in England may also decline to determine a relevant application if—

(a) the condition in subsection (4B) is satisfied, and

(b) the authority think there has been no significant change in the relevant considerations since the relevant event.

(4B) The condition is that—

(a) in the period of two years ending with the date on which the application mentioned in subsection (4A) is received the Secretary of State has refused a similar application,

(b) the similar application was an application deemed to have been made by section 177(5) and

(c) the land to which the application mentioned in subsection (4A) and the similar application relate is in England.

(5) A relevant application is–

(a) an application for planning permission for the development of any land;

(6) The relevant considerations are–

(a) the development plan so far as material to the application;

(b) any other material considerations.

(7) The relevant event is–

(a) for the purposes of subsections (4B) the refusal of the similar application…

(8) An application for planning permission is similar to another application if (and only if) the local planning authority think that the development and the land to which the applications relate are the same or substantially the same."

25. A local planning authority is entitled to decline to determine subsequent applications if any of the conditions in sub-sections (2) to (4) are satisfied and the authority thinks that there has been no significant change in the development plan or any other material considerations since the refusal of the similar application.
26. The condition relied upon by the Defendant is the condition in sub-section (4B), namely, that in the two year period before the application was made, the Secretary of State refused a similar deemed application under s.177(5) of the Act (i.e. where the Secretary of State has dismissed a ground (a) appeal on an enforcement notice).
27. In deciding whether or not an application is "similar" to a previous one, the local authority must apply the test set out in subsection (8):

"An application for planning permission is similar to another application if (and only if) the local planning authority think that the development and the land to which the applications relate are the same or substantially the same".

28. Thus, section 70A confers power on a planning authority to decline to determine a planning application if they have formed two opinions: the first is that the new and the previous deemed application and the land to which they relate are "the same or substantially the same" and the second is that there has been no significant change in the local development plan or any other material considerations (R (Harrison) v Richmond upon Thames LBC [2013] EWHC 1677 (Admin), at [2]).
29. The section does not lead to the consequence that an applicant can never make a fresh application after a refusal, merely that he can be subject to a moratorium of 2 years (Harrison at [4]).
30. The power in section 70A is not the equivalent of a summary judgment, dismissing a hopeless application, but nevertheless, the merits of the case are not wholly irrelevant (Harrison at [4]). In Harrison, the court found that (at [38]):

"....when Parliament used the concept of similarity or substantial sameness in section 70A it had in mind in particular points of similarity that were relevant to the question of whether the section 70A power should be used. The fact that, as in this case, a fresh application shares with the old one a characteristic that was judged fatal to the success of the previous application is, in my view, a relevant point of similarity."

Planning Policy and Guidance

31. Paragraph 89 of the National Planning Policy Framework provides:

"A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are:

[…]

the extension or alteration of a building provided that it does not result in disproportionate additions over and above the size of the original building"

32. The Planning Practice Guidance ("PPG") explains the purpose of the power in section 70A TCPA 1990 as follows (at paragraph 058):

"Where an authority considers that an application is similar, it is not automatically obliged to decline to determine the application. The purpose of these powers is to inhibit the use of 'repeat' applications that the local planning authority believes are submitted with the intention of, over time, wearing down opposition to proposed developments. They are, however, designed to be flexible and to give local planning authorities the discretion to entertain 'repeat' planning applications where they are satisfied that a genuine attempt has been made to overcome the planning objections which led to rejection of the previous proposal or there has been a material change in circumstances."

33. In Harrison¸ the Court quashed the planning authority's decision under section 70A TCPA 1990 on the ground that it did not consider the purpose of the powers, though the case was decided under Circular 8/2005 (now superseded by PPG) which expressly enjoined authorities only to use the power where they believed that the applicant was trying to wear down opposition. The wording of PPG is less prescriptive.

Permission to apply for judicial review

34. On 20 October 2014 the Claimant was granted permission to bring judicial review proceedings on two grounds only:

i) Ground 2: That it was irrational / perverse for the Council to find that the garage proposed in the application of 21 May 2015 ("the Application Garage") and the currently existing garage ("the Constructed Garage") were substantially the same, given the physical differences between them.

ii) Ground 3: That the Council took into account an irrelevant consideration in finding that the application of 21 May 2015 would "alter the terms of the Enforcement Notice" and that it was "not possible to validate an application that seeks permission to alter or amend a building which is itself unlawful".

35. In Ground 1, the Claimant alleged that in its decision letter the Defendant had erroneously relied upon the conditions set out in subsections (2) and (3) of section 70A. In its Summary Grounds of Resistance, paragraph 11, the Defendant conceded its error, stating:

"The Council accepts that the reference in the letter of 3 June 2015 to subsections (2) and (3) of s.70A was an error. The reference should have been to subsections (4A) and (4B) of section 70A. However, the reference to the erroneous subsections does not cause the Claimant any substantial prejudice (or indeed, any prejudice) and does not render the Council's decision unlawful."

36. Mr Charles George QC, sitting as a Deputy High Court Judge, refused permission on the papers on Ground 1 on the basis that "reference to the erroneous subsections does not invalidate the decision if otherwise good".
37. Following service of the first witness statement, made on 4 August 2015, of Mr Abel Bunu, Senior Planning Officer in the Development Management section of the Defendant Council, the Claimant applied for permission to rely on a fourth ground of challenge, namely, that Mr Bunu either made the decision or participated substantially in the decision-making process when he was not authorised to do so.
38. On 6 November 2015, Holgate J. refused permission to rely on the fourth ground, and the Claimant renewed the application at the beginning of the substantive hearing. I considered that time ought to be extended to make the application as the point relied upon was based on Mr Bunu's first witness statement. However, I refused permission, because I considered that the ground was not arguable.
39. The decision was taken by an authorised officer, namely, Mr Andrew Davie, Development Infrastructure Group Manager at the Defendant Council. The decision letter of 3 June 2015 was signed by him, and he has confirmed in his witness statements that he took the decision. Under the Council's Scheme of Delegation, the function of declining to determine applications under section 70A TCPA 1990 may be delegated to a Director. Where a function has been delegated to a Director, the Director may "delegate further, in writing, all or any of their delegated functions to other officers to exercise in their own name".
40. In his second witness statement, made on 27 October 2015, Mr Davie explained that this function was delegated to the Director of Regeneration and Business Support, who in turn delegated it to Mr Davie. The written authorisation dated 21 April 2015 was exhibited to Mr Davie's witness statement. I did not accept the Claimant's submission, made for the first time at the hearing, that paragraph 4.4.44 of the Scheme of Delegation did not extend to the decision in question.
41. Mr Davie described Mr Bunu's role as follows:

"3. Following the receipt of Mr Gill's planning application the matter was assigned to Mr Bunu by his Line manager, Mr Hale. I was aware of the application and the planning history relating to the site. Mr Bunu considered the application in the context of Section 70A and discussed the case with me. He advised me that in his opinion the application should be declined on the basis that it was substantially the same as that considered and refused by the Secretary of State in March 2014 under a deemed application pursuant to Section 177(5) of the Town and Country Planning Act. Mr Bunu did not think there had been a significant change in the considerations since that dismissal. I concurred with Mr Bunu's opinion and felt it was appropriate for the Council to exercise its discretion to refuse to determine the application under s.70A. My decision was informed by the discussions I hd with Mr Bunu but the decision to decline to determine the application was mine. Such an approach is very common. To suggest that Directors (or managers) have to take all decisions without reference to case officers is to fail to understand Council processes or the practical realities of local authority administration. One of the main roles of case officers in the Development Infrastructure department is to make recommendations in respect of applications, whether to their Directors/Managers or the Development Management Committee, in order to inform the decision-making process. Of course, Directors/Managers and the Development Management Committee are not obliged to follow the officer recommendations and there are instances where they disagree with the view of the case officer. In this particular instance, however, having discussed the application with the case officer, Mr Bunu, I considered that the Council should exercise its discretion under section 70A to decline to determine it.

4. I understand that it is said on Mr Gill's behalf that the first witness statement of Mr Bunu gave the impression that he had taken the decision to decline to determine the application. Mr Gill is aware that Mr Bunu is the case officer dealing with his case, not least because Mr Bunu spoke to Mr Gill's agent on the telephone on 1 June 2015 in respect of the May 2015 application. He is aware that the decision to decline to determine the application was made by me, because I sent him a letter containing the decision which was signed by me. Given that Mr Bunu has dealt with the various applications made by Mr Gill in the past and given that he is the case officer who made the recommendation in respect of the May 2015 application that I agreed with and endorsed in my decision, I considered it appropriate for Mr Bunu to provide a witness statement to accompany the Council's Summary Grounds of Resistance. Given the pressures on my time as Development Infrastructure Group Manager in a busy local authority, such division of labour is wholly unexceptional."

42. In my judgment, this evidence does not disclose any suggestion of unlawful decision-making. I cannot accept the Claimant's submission that it is unlawful for the authorised decision-maker to be assisted by investigations, reports and recommendations from a planning officer who is not himself authorised to take the decision. The procedure described by Mr Davie is commonplace in local and central government and it is an efficient use of time and resources. Decision-makers, whether they are elected members or senior planning officers, are well able to bring their own independent judgment to bear on the application.
43. At the hearing, the Claimant also submitted for the first time that Mr Davie failed to comply with the general obligations set out in paragraph 2.8 of the Scheme of Delegation, and in support of that submission, pointed to the fact that Mr Davie's evidence did not address those matters. However, there is no evidence to suggest that Mr Davie did not comply with his general obligations, and it is unreasonable to draw any inference from the absence of express reference to them in the witness evidence, when they were not in issue in these proceedings.

Ground 2

44. The Claimant submitted in his pleaded grounds that the Defendant did not properly address the key question under section 70A, namely, whether the proposed scheme was "the same or substantially the same". In light of the significant difference in size between the Constructed Garage and the Application Garage, it was perverse/irrational to conclude that they were substantially the same. The Defendant fell into error by focussing on the likely outcome of the application for planning permission, which was not the statutory test.
45. Having given careful consideration to the Claimant's submissions, I have come to the conclusion that it was not irrational or perverse for the Defendant to conclude that the development and land under consideration in the application of May 2015 was substantially the same as the development and land considered by the Inspector on 27 March 2014.
46. In both cases, the development was a brick-built single storey double garage at 171 Dunstable Road. The exact site, only 1.1 metres from the house, was identical. Although in the Application Garage, there would be a reduction in height and depth, the width would remain the same.
47. The Inspector had found that the size, bulk and siting of the Constructed Garage would be a disproportionate addition to the original building as extended, which would cause significant harm to the Green Belt. The Defendant considered the proposed reduction in size and concluded that it was not sufficient to overcome this objection, and the Application Garage would also be a disproportionate addition, harmful to the Green Belt, by reason of its size, bulk and siting. Applying the reasoning in Harrison, the fact that the Application Garage shared with the Constructed Garage characteristics that had been judged fatal to the success of the previous application was a relevant factor in determining whether the developments were similar which the Defendant was entitled to take into account. I do not consider that the Defendant misdirected itself in law.
48. At the hearing, Mr Lopez repeatedly made further submissions which extended beyond those in his pleaded case or his skeleton argument. Ms Tafur wisely took the view that it was better for the Defendant to deal with them on their merits, which she did with considerable skill.
49. First, Mr Lopez argued that the error originally pleaded in Ground 1, for which permission was refused, demonstrated that the Defendant had failed either to consider or apply the conditions and criteria in section 70A. In my view, this was an attempt to circumvent the refusal of permission on Ground 1. In any event, the submission lacked merit. In order to find that the conditions in subsections (2) and (3) were met, the Defendant had to "think there has been no significant change in the relevant circumstances since the relevant event" (ss (1)) and that "a similar application" had been refused up to two years prior to the receipt of the current application. These were the same conditions which had to be met under subsections (4A) and (4B). So the error made by the Defendant in citing the subsections applicable to a grant of planning permission, rather than an enforcement notice, would not of itself have resulted in any misdirection in relation to the other conditions which had to be met.
50. Second, Mr Lopez submitted that the Defendant's failure to set out in terms in the decision letter that it found that there had been no significant change in the relevant considerations (ss (1), (4A(b)) and (6)) indicated that the Defendant had not considered this matter. However, it was common ground between the parties that there was no significant change in the relevant considerations, and so this point could not advance the Claimant's case.
51. Third, although there was no reasons challenge pleaded, Mr Lopez submitted that the reasons given in the decision letter of 3 June 2015 were inadequate, which demonstrated the irrationality of the decision, and the Defendant's witnesses were improperly seeking to make good their failings by providing further reasoning in their witness statements.
52. I accept Ms Tafur's submission that the reasons (at least in relation to Ground 2) were adequate for the purposes of a section 70A decision, applying (as appropriate) the classic test set out by Lord Brown in South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953. Reasons can be briefly stated; not every point has to be included. It was permissible to cross-refer to the reasoning in the Inspector's decision, in particular paragraph 17, since the Claimant was a party to that appeal, and was well aware of the way in which he had put his case, and the basis of the Inspector's decision dismissing his appeal.
53. Once the Defendant was accused of making an irrational/perverse decision, it was entitled to file evidence to rebut the allegation of irrationality/perversity. Indeed, it was helpful for this Court, without any prior knowledge of the planning history or the details of the planning application, to receive evidence which explained the factual issues in greater detail. A decision-maker is entitled to rely on evidence which elucidates and confirms its decision, and also to set out the matters which it took into account. Of course, a decision-maker cannot rely upon evidence which contradicts the reasons originally given. The Court must guard against the decision-maker using the opportunity to file evidence as an opportunity to bolster a flawed decision. In this case, I do not consider that the Defendant's evidence was improper, or strayed beyond the boundaries of what was permissible.
54. Fourth, Mr Lopez alleged that neither Mr Davie nor Mr Bunu had considered PPG paragraph 59 and whether the Claimant was making "'repeat' applications that the local planning authority believes are submitted with the intention of, over time, wearing down opposition to proposed developments". This assertion was contradicted by the evidence of Messrs Davie and Bunu. The Claimant's six applications in the course of 14 months following the Inspector's decision the previous year indicated that this was precisely the situation that section 70A TCPA 1990 was intended to address.
55. Mr Lopez submitted that the Claimant was genuinely trying to find a solution to his planning problems by putting forward alternatives. In my view, the Defendant was entitled to take the view that the Claimant refused to accept the decisions made against him by planning authorities, and his revised applications simply did not address the fundamental objections that the Constructed Garage was too large and the overall increase in footprint of more than 100% over the size of the original dwelling was excessive, particularly bearing in mind that this was development within the Green Belt.
56. I remind myself that section 70A confers on planning authorities the task of judging whether a development is the same or similar, and this court should not substitute its judgment for that of the planning authority. The Defendant properly compared the size and appearance of both developments, in the setting.
57. In my view, the Defendant was entitled, in the exercise of its planning judgment, to conclude that the developments were similar. The high threshold for establishing irrationality has not been reached.

Ground 3

58. The Claimant submitted that, in paragraph 2 of its decision, the Council took into account an irrelevant consideration in finding that the application of 21 May 2015 would "alter the terms of the Enforcement Notice" and that it was "not possible to validate an application that seeks permission to alter or amend a building which is itself unlawful". Furthermore, its statement was wrong in law.
59. The Defendant conceded that it had erred in stating that an application could not be validated in these circumstances, as in principle, planning permission could be granted retrospectively, even where the original construction was unlawful. It also conceded that this was irrelevant to the question to be decided under section 70A on the facts of this case.
60. On analysing the decision letter, Mr Davie found that the conditions in section 70A TCPA 1990 were met (albeit that he applied the wrong subsections). He gave his reasons on the disputed issue i.e. whether or not the current application was similar to the previous one. I agree with the Defendant that this could have been a sufficient basis upon which to base the decision. However, Mr Davie then went on in paragraph 2 to give a further reason for the decision, which was wrong in law.
61. Under section 70A TCPA 1990, a planning authority has a discretion whether or not to exercise its power to decline to determine an application, even where the statutory conditions are met. As a matter of statutory construction, this is apparent from the use of the word "may" rather than "shall" in subsection (1). The PPG also makes it clear that the planning authority has a discretion under section 70A TCPA 1990. Exercise of the power has drastic consequences, as the application is rejected without consideration of its merits, and without any right of appeal.
62. On my reading of the decision letter, the considerations in paragraph 2, which were based on the Inspector's reasons for dismissing the ground (f) appeal, must have been a reason why the Defendant decided to exercise its overall discretion in favour of declining the application. It is not possible to know how influential those considerations were in the decision-making process. The witness statements from the Defendant do not provide any satisfactory explanation for the inclusion of paragraph 2, or the part it played in the decision. Paragraph 2 was a significant mistake by the Defendant, and although the Defendant says now that it would reach the same decision, excluding the considerations in paragraph 2, it seems to me that the Claimant is entitled to have his application re-considered on a lawful basis, without misdirection and without taking into account irrelevant considerations. I do not consider that this Court can, on the facts of this case, properly refuse the Claimant relief.
63. Therefore, despite Ms Tafur's excellent presentation of the Defendant's case, I quash the decision and the Defendant must now consider the application again, in accordance with the terms of this judgment.

ANNEXE

	APPROVED GARAGE	CONSTRUCTED GARAGE	APPLICATION GARAGE	DIFFERENCE BETWEEN CONSTRUCTED AND APPLICATION GARAGE
Height (m)	4.8	6.2	4.55	- 1.65
Depth (m)	5.615	11.45	7.9	- 3.55
Width (m)	5.66	6.75	6.85	+ 0.1
Distance from house (m)	2	1.1	1.1	0
Footprint (m2)	32	77	54	- 23
Footprint of other extensions to the original dwelling (m2)	N/A	77	77	0
Cumulative increase of extensions over and above the size of the original building	27% (32m / 118m x 100)	131% (77m + 77m / 118m x 100)	111% (77m + 54m / 118m x 100)