A challenge to a decision not to take enforcement action may well not succeed even where unassessed EIA development is involved
The power to issue an enforcement notice is entirely discretionary. Section 172(1) of the Town and Country Planning Act 1990 provides that the local planning authority (“LPA”) may issue an enforcement notice where it appears to it that (a) there has been a breach of planning control and (b) it is expedient to do so. Even in the case of a flagrant breach, the LPA has the option of taking no action. Consequently, a decision not to issue an enforcement notice will in most instances withstand a third-party challenge in the courts.
However, a fresh dimension is introduced where the breach of planning control involves the carrying out of development that comprises EIA development. For instance, in Ardagh Glass Ltd v Chester City Council [2009] EWHC 745 (Admin) such a challenge did succeed, and a mandatory order was granted against the LPA obliging it to take enforcement action. However, the facts of the case were special. A factory amounting to EIA development had been constructed without planning permission, and an impact assessment. It was about to acquire immunity from enforcement action. Failure to issue an enforcement notice would also have given it immunity from the proper application of the EIA Directive.
Against that, the facts in R (on the application of Baker) v Bath and North East Somerset Council [2013] EWHC 946 (Admin) were less extreme. The LPA was faced with three planning applications by the operator of an existing waste composting site, essentially to continue the active use of the site on the expiry of earlier permissions. At the request of the claimant, a neighbouring owner, the Secretary of State had issued a positive screening direction. While continuing to operate the site actively, the operator failed over a period of months to submit an adequate environmental statement. The LPA declined to issue an enforcement notice. The claimant sought to challenge that decision.
The court dismissed the claim, holding that the LPA had reached a fair, reasonable and proportionate decision in the circumstances. There was a real possibility, on the evidence, that the operator would produce a compliant environmental statement. It remained an efficient course for the LPA to determine the planning applications. The issue of an enforcement notice would not be likely to bring the unauthorised operations to an end, and it would probably transfer the planning applications to the Secretary of State.
John Martin
