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Ardagh Glass v Chester City Council [2009] EWHC 745

HHJ Mole QC (sitting as a High Court Judge) mooted the possibility that the time limits for enforcement in the Town and Country Planning Act 1990[1] may be incompatible with the EIA Directive[2], and may have to be disapplied so that EIA development could never become lawful without having first been subject to environmental assessment in accordance with the Directive.

This question fell to be addressed head on for the first time in the case of Evans v Basingstoke & Dean Borough Council and Vitacress Salads Limited [2013] EHC 899. Mr Evans argued that Vitacress had incrementally increased their salad processing operations over a number of years so that it was no longer ancillary to the agricultural use of their site, and that Basingstoke were wrong to regard this change of use as immune from enforcement because the time limits did not apply to EIA development. They argued that Basingstoke should be required either to serve an enforcement notice, or to use their powers under section 102 TCPA 1990 to rectify what they argued was a breach of the Directive.

It was argued on behalf of Basingstoke and Vitacress that the immunity conferred by the time limits was compatible with the EU principles of certainty and effectiveness, and that the authority had not been invited to consider exercising their section 102 powers so judicial review was inappropriate.

Stadlen J held:

Section 171B is a procedural rule (paragraph [397])As a procedural rule it satisfied the principles of effectiveness (in that it did not make reliance on the directive excessively difficult) [401] and the principle of equivalence (in that it was not less favourable than the rules governing domestic time limits) [402].The time limits were carefully drafted and provided a proper balance between the need for certainty and the obligations on the UK to ensure compliance with the directive [406].An order requiring Basingstoke to exercise their powers under section 102 would be inappropriate [428], and arguably inconsistent with the findings on the time limits [428]

In another interesting development, the Court upheld the approach in R (Blewett) v Derbyshire CC [2003] EWHC 2775 to the adequacy of environmental information [297], and held that? it also applied to how a court should judge the adequacy of a response to a Regulation 19 request [281].

This long and careful judgment will no doubt come as a relief to anyone who holds a certificate of lawfulness in relation to development that is arguably EIA development. However permission has been granted to appeal on the s.171B/s102 point, so the debate continues.

Clare Parry acted for Basingstoke and Deane Borough Council.  If anyone is concerned about the potential implications of this judgment for their development or case, any member of the planning team at Cornerstone Barristers would be happy to advise.