Town and country planning – Environmental impact assessment (EIA) development – Retrospective planning permission – Developer constructing glassworks without planning permission – Subsequent planning application accompanied by environmental statement – Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 – Directive 35/337/EEC – Judge refusing to make declaration that grant of retrospective permission for EIA development contrary to EC law – Appeal dismissed
In 2003, the interested party started work on the construction of a large glassworks on the site of a former power station near Chester, in the respondent local planning authorities’ areas. The project was an environmental impact assessment (EIA) development within the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 such that planning permission could not be granted without a consideration of an environmental statement. However, a planning application was not submitted until 2004. That application was called in and refused by the secretary of state. In 2009, the interested party made two further applications to the respondents, under section 73A of the Town and Country Planning Act 1990, for retrospective planning permission for the works already carried out, together with permission for new elements; those applications were accompanied by an environmental statement.
The appellant brought proceedings in which it obtained a mandatory injunction requiring the respondents to issue an enforcement notice in respect of the earlier unlawful development of the works; the respondents did so and the interested party appealed against it under section 174 of the 1990 Act. The judge refused to grant the further relief sought by the appellant to prevent the grant of any retrospective planning permission on the new applications. He rejected the claimant’s contention that EC law did not permit the grant of retrospective planning permission for EIA development and held that such permission could be granted in exceptional circumstances provided that the developer would gain no improper advantage by its pre-emptive development. He refused to order the respondents to issue a stop notice in respect of the unauthorised development: see [2009] EWHC 745 (Admin).
The appellant appealed. It contended that any grant of retrospective permission was permissible only where the requirements of article 2(3) of Directive 85/337/EEC (the EIA Directive), regarding the exemption of specific projects by member states, were met.
Held: The appeal was dismissed.
(1) EC law permitted the grant of retrospective planning permission for EIA development. That view accorded with common sense; given the variety of circumstances in which EIA development might be carried out in breach of the directive and the wide range of environmental consequences of such a breach, it would be surprising if there were only one lawful response to such breach, however caused and whatever its environmental consequences. It also accorded with the need to ensure that measures to secure compliance with the directive were proportionate in accordance with community law. Although member states had to take all appropriate measures to ensure compliance with the EIA Directive and to nullify the effects of any breach, it was a fundamental principle of community law that such measures had to be proportionate. A prohibition on the grant of retrospective planning permission for EIA development, regardless of the surrounding circumstances and the environmental consequences of the breach, would be wholly disproportionate. Moreover, the possibility that retrospective permission might be granted in exceptional circumstances had been recognised in EC case law: Commission of the European Communities v Ireland C-215/06; [2008] ECR I-4911 applied.
The circumstances in which retrospective permission for EIA development could be granted were those set out by the judge in the court below. The decision maker should consider, in order to uphold the directive, whether: (i) the grant of permission would give the developer an advantage that it ought to be denied; (ii) the public could be given an equal opportunity to advance their views; and (iii) the circumstances could be said to be exceptional. There would be no encouragement of pre-emptive development provided that the decision maker ensured that the developer obtained no improper advantage and knew that it would be required to remove the development unless it could demonstrate exceptional circumstances justifying its retention.
(2) Article 2(3) of the EIA Directive was not relevant to the grant of retrospective planning permission for EIA development. It was concerned with the circumstances in which specific projects could be exempted from the requirements of the directive. The issue of retrospective planning permission for EIA development was instead concerned with the circumstances in which, exceptionally, national law might permit the retrospective regularisation of unauthorised projects that were subject to the requirements of the directive.
(3) Once it was recognised that retrospective planning permission for unauthorised development was permissible in principle, there was no substance in the appellant’s further contention that the respondents had been obliged to issue a stop notice and not merely an enforcement notice. The latter was sufficient to ensure the removal of the unauthorised EIA development in the event that retrospective permission was not granted either by the respondents, under section 73A of the 1990 Act, or by the secretary of state, under section 177, on the enforcement notice appeal.
Robert McCracken QC and James Pereira (instructed by DLA Piper UK LLP) appeared for the appellant; Richard Drabble and Reuben Taylor (instructed by CMS Cameron McKenna LLP and Denton Wilde Sapte LLP) appeared for the respondents.
Sally Dobson, barrister
