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Section 171B Time Limits Not Incompatible With The EIA Directive

On the 20th November 2013 the Court of Appeal (Lord Justices Aiken, Sullivan and Patten) dismissed an appeal against the order made by Mr Justice Stadlen in R (oao Peter Evans) v Basingstoke and Dean Borough Council & Vitacress Salads Limited [2013] EWHC 899 ( Admin) who had, in turn, dismissed a claim for judicial review of a decision by the Basingstoke & Deane Borough Council to grant planning permission for a proposal to develop a site owned by Vitacress Salads Limited.

Permission to appeal to the Supreme Court was refused.

It was contended that section 171B of the Town and Country Planning Act 1990, and the time limits therein, were incompatible with the EIA Directive, Article 2(1) and should be disapplied. The Appellant's argued that there ought not to be any time limit on the LPA's ability to take enforcement action where EIA development had taken place with no screening or EIA.

In addition it was suggested that the LPA were compelled to make a discontinuance order under section 102 of the Town and Country Planning Act 1990 so as to remedy the breach of the Directive.

The appellant had sought to rely on obita comments from HH Judge Mole in Ardagh Glass Ltd v Chester CC [2009] EWHC 745 at [110] and the judgement of Lord Justice Schiemann in R (Prokopp) v London Underground [2003] EWCA Civ 961. However, the Court stated that it was important to bear in mind that both those cases were concerned with situations where the time limits had not expired and where decisions not to enforce might well amount to a breach of the Directive. They were not concerned with the contention that, where the time limit had expired, the lack of power to take enforcement action is a breach of the Directive.

For the purposes of the proceedings Vitacress had conceded that the change of use which had occurred pre 2000 - and which had therefore acquired immunity under the ten year rule - was EIA development. It had not been screened or the subject of EIA. Sullivan LJ, with whose judgment Aikens LJ and Patten LJ agreed, stated that the suggestion that the time limits were incompatible flies in face of the Advocate General Jacobs opinion in Denkavit [1996] ECR1-2827 that time limits are an application of the principle of legal certainty. Moreover, on the basis that the time limits were not substantive provisions but rather procedural, whether they were looked at structurally or at an individual level on the facts before the court, they were not virtually impossible or unduly difficult to apply.

Lord Justice Sullivan accepted that, in those circumstances, the claim for a mandatory section 102 order did not arise, but that this did not mean that the section 102 power was not available.

Clare Parry appeared for Basingstoke & Dean Borough Council in the High Court and Mary Cook appeared for them in the Court of Appeal.