Section 70C, the Court of Appeal, and Hillside

Section 70C of the Town and Country Planning Act 1990 allows a Local Planning Authority to decline to determine a planning application if this is, in part or in full, in relation to a development which is the breach of planning control included within a pre-existing enforcement notice.

On 17 April 2026, the Court of Appeal approved the judgement in the case of

Moran v Medway Council [2026] EWCA Civ 484 which considered the scope of Section 70C. This considered previous judicial reviews in relation to Section 70C of the 1990 Act.

In Monran, Lord Justice Dove (with whom the other judges agreed) reviewed the relevant judgements surrounding s. 70C and denoted that its purpose is to prevent “the potential for the occupier of the land subject to the enforcement notice to insist upon more than one determination of the planning merits of the breach of planning control”. This is known as having "multiple bites of the cherry".

Following the decision, Viable Placemaking were instructed to prepare a representation on an application for a large holiday park, which had been built not in accordance with the approved plans.

While two enforcement appeals were being considered, one for a breach of the condition for the original planning application and another for the sitting of additional caravans outside the red line boundary, the landowner applied for retrospective planning permission for the additional caravans only. In reviewing the case, Viable Placemaking found that the new planning application was not sufficient to overcome the enforcement issues at the site.

This linked to the findings of the Supreme Court's judgement in Hillside, in which the court considered the'Pilkington principle' test of physical possibility. In this case, it was impossible for the original planning permission to be lawfully completed due to what had happened on the ground. As the new planning permission did not incorporate the full scope of the development, even if the local authority granted planning permission for the new application, the site would be in breach of planning control, with a live enforcement notice.

In this case, which was in Wales, the Welsh Government’s Development

Management Manual provides useful guidance on the link between considering developments and not allowing multiple bites of the cherry. The Manual is clear that the Council's first consideration of a development is in the decision whether to, or to not, serve an enforcement notice.

In serving the enforcement notice so, the Council had considered the development once and was about to do so again. It was possible the local authority would grant planning permission for a development which had just been found unacceptable and unlawful, while the wider scheme remained unlawful. We therefore reccomended the Council utilise its powers under Section 70C and allow the Planning Inspector to consider the entire development in the round as part of the two ongoing appeals.

Sometimes, it is important to first principles, such as the land to which a development relates and the specifics of an approved development.

For more information on the application of Section 70C or Hillside might impact your development, please don't hesitate to get in touch.