R Evans v Basingstoke and Deane Borough Council (First Respondent) Victacress Salads Ltd (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Aikens,Lord Justice Patten |
| Judgment Date | 20 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1635 |
| Docket Number | C1/2013/1302 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 November 2013 |
[2013] EWCA Civ 1635
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London
WC2A 2LL
Lord Justice Aikens
Lord Justice Sullivan
Lord Justice Patten
C1/2013/1302
Mr R McCracken, QC and Mr N Westaway (instructed by Richard Buxton) appeared on behalf of the Appellant
Ms M Cook (instructed by Basingstoke and Deane Borough Council) appeared on behalf of the First Respondent
Mr T Mould, QC and Mr Keen appeared on behalf of the Second Respondent
(Approved by the Court)
This is an appeal with the permission of Stadlen J against his order dated 10 May 2013 dismissing the Appellant's claim for judicial review of a planning permission dated 4 October 2010 which was granted by the First Respondent to the Second Respondent for development at Lower Link Farm, St Mary Bourne near Andover.
There is no issue as to the factual background of the claim for judicial review which is set out in considerable detail in the judgment of Stadlen J which is reported at [2013] EWHC 899 (Admin).
Before the judge the lawfulness of the planning permission was challenged on four grounds. The judge rejected all four grounds. Grounds one to three were not pursued by the Appellant in this appeal. The judge dealt with ground four, which is the subject of this appeal, in paragraphs 320 to 431 of his judgment.
The relevant facts in respect of this ground can be summarised as follows. Lower Link Farm is a watercress farm. Originally, it was in agricultural use. The produce which was sorted, washed and packed on site was grown on the farm. Over the years, the proportion of the produce sorted, washed and packed on the site which had been imported from other sites increased so that when the first Respondent decided to grant a planning permission in 2010, it did so upon the basis that there had been a material change in the use of the site to a "mixed agricultural/industrial use with the industrial element predominant" and that this change of use had occurred more than ten years ago, i.e. before October 2000.
The first Respondent, therefore, concluded that the existing use on the site was likely to be immune from enforcement action by virtue of section 171B of the Town and Country Planning Act 1990 ("the Act"). At the material time, section 171B provided:
"(1)Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.
(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.
(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach…"
For the purpose of these proceedings, the second Respondent concedes that the material change of use to a mixed agricultural/industrial use with the industrial use predominant was "schedule 2 development" within the meaning of the EIA Regulations which should have been, but was not, screened in accordance with the EIA Regulations and the EIA Directive to enable the First Respondent to decide whether the development was "likely to have significant effects on the environment by virtue of factors such as its nature, size or location" before development consent was granted.
In summary, the Appellant submits, and the Second Respondent concedes, that the development by way of the material change of use which had occurred by 2000 was "EIA development", but the requirements of EIA Regulations and the EIA Directive were not complied with.
Subject to the issue of noncompliance with the EIA Directive, it is common ground that the breach of planning control in the present case is one of those which falls within sub-section (3) of section 171B, so that if the first Respondent was to take enforcement action, it had to be taken within ten years of the breach.
On behalf of the Appellant, Mr McCracken QC submitted that the ten year time limit for taking enforcement action insofar as it applied to EIA development was incompatible with the United Kingdom's obligation to secure compliance with the EIA Directive, article 2(1) of which provides:
"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects."
He submitted that in order to ensure compatibility with the Directive, the domestic courts were obliged to disapply the time limits in section 171B in respect of EIA development and the first Respondent was obliged to issue an enforcement notice under section 172 of the Act. There could be no time limit for taking enforcement notice proceedings in respect of EIA development carried out in breach of the Directive.
If the Court did not accept that submission and concluded that the First Respondent was prevented by section 171B from taking enforcement action under section 172, Mr McCracken submitted that the First Respondent was under the duty to make a discontinuance order under section 102 of the Act in order to secure compliance with the Directive, and the Court should order the First Respondent to discharge that duty by way of making a mandatory order.
Section 102 provides, so far as relevant:
"(1) If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) —
(a) That any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land; or
(b) That any buildings or works should be altered or removed,they may by order -
(i) Require the discontinuance of that use, or
(ii)Impose such conditions as may be specified in the order on the continuance of it, or
(iii)Require such steps as may be so specified to be taken for the alteration or removal of the buildings or works, as the case may be."
In support of his submission that the time limits for taking enforcement action in section 171B are incompatible with the EIA Directive. Mr McCracken referred us to the opinion of Advocate General Colomer in Commission v United Kingdom [2006] ECR I–4003. In that case, the Commission sought a declaration that the United Kingdom had failed to fulfill its obligations under Articles 2(1) and 4 of the EIA Directive. The Advocate General referred to the relevant United Kingdom legislation including sections 171B and 191 of the Act and said this in paragraphs 26 to 29 of his opinion:
"(26) In a way, the limits of that discretion are to be found in Article 2(1) of the directive, which defines its fundamental objective in such a way that projects with a significant effect are always subject to an impact assessment.
(27) In other words, to achieve its proper purpose, does not exempt any project with those characteristics from assessment, (11) with the result that, although the national public authorities have a wide discretion, Community law precludes implementation of such projects without prior authorisation and, if appropriate, without assessment of their impact, where implementation becomes irreversible with the passage of time.
(28) That is precisely the effect of the United Kingdom system, which, as the case of the scrap yard over which these proceedings arose demonstrates, and as the defendant Government accepts, allows action to be taken in breach of the directive, without prior evaluation or impact assessment, and to be legitimised by the passage of time so that the situation can no longer be remedied.
(29) The analysis of the breach ought to end at this point, in the light of the prior admission; however, since the parties have become embroiled in a dispute as heated as it is pointless, I feel obliged to clarify a few matters."
Mr McCracken submitted that the proper interpretation of these paragraphs was that the Advocate General's Opinion was that section 171B was incompatible with the Directive. He submitted that persuasive weight should be given to the Advocate General's Opinion to that effect.
The difficulty with that submission is that the Advocate General's Opinion was not accepted by the Court. In paragraphs 19 to 23 of its judgment, the Court said this:
"(19) During both the pre-litigation stage of the present procedure and the litigation itself, the Commission concentrated its criticisms on the issue of LDCs in so far as it allows by-passing of the procedures governing application for consent and environmental impact assessment required by Directive 85/337 for projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location.
(20) The Commission has not put forward any complaints concerning the actual existence of time-limits for the taking of enforcement action against development which does not comply with the...
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