Smith v South Kesteven District Council: judicial review of section 70C refusal fails

The High Court has refused permission for a Gypsy and Traveller site operator to bring judicial review proceedings against South Kesteven District Council's decision to decline to determine a planning application under section 70C of the Town and Country Planning Act 1990, finding none of nine grounds of challenge arguable.

The case, R (on the application of Sam Smith) v South Kesteven District Council [2026] EWHC 2435 (Admin), was heard by Deputy High Court Judge Karen Ridge on 14 May 2026, with judgement handed down on 22 September 2026. The claim concerned land near Long Bennington, Lincolnshire, where the claimant had sought permission for a change of use to a thirteen pitch Traveller site.

The site had a lengthy planning history. Earlier applications for smaller scale use had been refused over noise and odour concerns linked to the adjoining A1 trunk road and a neighbouring maggot farm, and a 2021 enforcement notice against unauthorised occupation was upheld on appeal in 2022, with the inspector finding that noise and odour impacts on living conditions outweighed the acknowledged shortage of Traveller sites and the personal circumstances of occupants. A further application in December 2023 was also declined under section 70C. The application giving rise to this claim, submitted in February 2025 with new noise, odour and ecological evidence, was declined on the same basis in April 2025.

Section 70C allows local planning authorities to decline to determine applications concerning land previously subject to enforcement action. The judge applied the two stage test from Chesterton Commercial (Bucks) Ltd v Wokingham District Council, as recently considered by the Court of Appeal in R (on the application of Moran) v Medway Council, which the parties had awaited before the hearing proceeded. Both parties accepted the council was entitled to invoke the discretion; the dispute centred on whether it had been exercised lawfully.

The claimant argued the council had ignored proposed noise mitigation measures, including a bund and acoustic fencing, and that new evidence and policy changes, including a revised National Planning Policy Framework and an increased pitch requirement, made the 2025 application materially different from what had gone before. The judge rejected this, noting the council's Environmental Protection Officer had directly addressed the mitigation proposals and concluded they would not achieve the necessary internal noise reduction, given the proposal involved mobile homes and touring caravans rather than the park homes previously assessed. Following Moran, she held that section 70C did not require a fresh planning merits exercise, only a broad assessment of whether new material justified reconsideration, and that pitch shortages and personal circumstances of occupants were not mandatory considerations at that stage.

Similar reasoning disposed of grounds concerning alleged breaches of the maggot farm's environmental permit, a separate planning appeal decision on a nearby site, and claims under Article 8 and the Public Sector Equality Duty, the latter rejected partly on the basis that no free-standing PSED duty attaches to planning decisions of this kind, following R (on the application of Buckley) v Bath and North East Somerset Council.

Permission was refused on all nine grounds advanced.