In Ellaway v Cardiff County Council (see PP 2014/67) the local planning authority (LPA) had granted planning permission for an energy-from-waste facility, subject to a number of pre-commencement conditions, only after carrying out the required environmental impact assessment. Later, on application by the developer, it discharged those conditions unlawfully. It did not recognise that the developer’s applications for a discharge were “subsequent applications” for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (“the Regulations”). Accordingly, it had failed to comply with – inter alia – the obligation in regulation 3(2) of the Regulations to take “the environmental information into account” before so doing.
Subsequently, the developer provided further information to the LPA, including a document described as a “non-technical summary”, which the LPA then published in accordance with regulation 19 of the Regulations. It went on to hold the required consultation. Later the LPA resolved once more, at a meeting of its planning committee, to discharge the conditions. In applying to quash that resolution, the claimant also contended that the LPA had acted unlawfully by failing to comply with Directive 2011/92/EU (“the Directive”).
By way of background, the Court of Appeal in R (on the application of Ardagh Glass Ltd) v Chester City Council [2010] EWCA Civ 172; [2010] Env LR 32 held that, on its proper interpretation, the Directive – then in its pre-consolidated form – was not inconsistent with the grant of retrospective planning permission. The court referred to the decision in Commission of the European Communities v Ireland (Case C-215/06) [2008] ECR I-4911, where the CJEU considered that there were circumstances in which retrospective planning permission could be granted for EIA development. But, Sullivan LJ stated that, to conform with the CJEU’s judgment, the decision maker should consider whether granting permission would give the developer an advantage he ought to be denied, whether the public could be given an equal opportunity to form and advance their views and whether the circumstances could be said to be exceptional.
The court, in the present case, accepted that the actions of the LPA amounted to the grant of retrospective planning permission, but it dismissed the claim on this ground also. It concluded that the “exceptionality test” had been met, and that would be objectors had been able to access all relevant information held by the LPA. Finally, the fact that the developer commenced construction works when it did could not constitute an advantage that, in principle, should deprive it of the benefit of the discharges.
John Martin is a planning law consultant