The Queen (on the Application of Peter Evans) v Basingstoke and Deane Borough Council Victacress Salads Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stadlen |
| Judgment Date | 19 April 2013 |
| Neutral Citation | [2013] EWHC 899 (Admin) |
| Docket Number | Case No: CO/113/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 April 2013 |
[2013] EWHC 899 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stadlen
Case No: CO/113/2011
and
Mr McCracken & Mr Westaway (instructed by Richard Buxton) for the Claimant
Ms Parry (instructed by Basingstoke & Deane Borough Council) for the Defendant
Mr Mould QC & Mr Keen (instructed by Blake Lapthorn) for the Interested Party
This is a claim for judicial review of a decision by the Basingstoke and Deane Borough Council ("the Council") on 4 October 2010 to grant planning permission for a proposal to develop a site owned by the applicant, Vitacress Salads Limited, the Interested Party ("Vitacress").
The site is located at a watercress farm at Lower Link Farm, St Mary Bourne near Andover owned and operated by Vitacress. It is within the North Western Downs Area of Outstanding Natural Beauty. As well as a watercress farm there are also on the site buildings used by Vitacress for sorting, washing and packing vegetables and salads for sale to customers. Initially this second use of the site related only to watercress grown on site but gradually it grew to incorporate watercress grown elsewhere and then salads and vegetables grown elsewhere which are transported to and from the site by road. Operations at the site extract water from the aquifer at the source of the Bourne Rivulet and discharge waste water back into the Bourne Rivulet which itself runs into the River Test which is a Site of Special Scientific Interest.
THE TERMS OF THE PLANNING PERMISSION
The Council by its Planning Committee granted planning permission subject to conditions for the following development at site:
"Erection of 3 no. intake bays and 9 no. despatch bays and a storage area adjourning main building. Erection of agricultural and vehicle workshop following demolition of existing. Relocation of existing and provision of new plant and equipment; the provision of a temporary construction compound; temporary relocation of crate wash room; and the implementation of a scheme of lighting and landscaping improvements."
Condition 28 was in the following terms:
"The covered and enclosed storage area identified on drawing no. VSL/04 shall be used only for storage ancillary to the use of the adjacent packhouse and shall not be used for the sorting, washing, packing or activities related to the processing of watercress, baby leaf and salad products or for any other purpose whatsoever unless otherwise agreed in writing by the Local Planning Authority.
REASON: To prevent a material intensification of the use of the covered and enclosed storage area and because it is sited in a sensitive location where an unrestricted use would be contrary to local and national policies of planning restraint."
Condition 28 is of importance in this claim for judicial review. The main part of the existing buildings housed packing machinery used for packing watercress grown on site and watercress and other salads brought to site after they were washed. Although the new building to the north of the existing building for which planning permission was granted was subject to condition 28 the main part of the building was not. Neither were the three new intake bays to the north east of the existing building. The effect of condition 28 was thus that while neither Vitacress nor any subsequent owner would be permitted to increase the level of production at the site by putting packing machinery or other packing processes into the new enclosed storage area to the north of the existing building, they would not be prevented from doing so by using the new enclosed covered storage area for purposes for which currently part of the adjacent north area of the existing building was used, thereby freeing up or liberating, as it was described at the hearing, that space to accommodate additional packing machinery. Nor would it prevent the new intake bays being used in a similar fashion.
The Claimant ("Mr Evans") was one of those who, in the consultation process held by the Council before the decision was taken, objected to the proposed development on environmental grounds. The principal concern was that the proposed development might lead to an increase in production at the site which in turn might lead to pollution of the Bourne Rivulet and the River Test by increased levels of discharge of effluent and the discharge of effluent of a particularly harmful kind and to increased levels of road use by industrial vans or lorries. Vitacress responded by stating that the proposed development would not lead to an increase in production.
Mr Evans challenges the decision to grant planning permission on a number of grounds. One was that the Council treated inconsistently the 2008 proposal which led to the grant of permission in 2010 and a prior proposal made in 2003 for which permission was granted, albeit subsequently quashed in earlier judicial review proceedings on the ground that the Council had failed to carry out an Environmental Impact Assessment ("EIA") screening opinion. That ground was abandoned in the course of the hearing. Although there were four remaining grounds in reality two of them were closely related and I deal with them together. The first ground was that the Council unlawfully directed itself that it was not able to control by condition the level of operations in the existing buildings on site. The second and third grounds were that the Council failed properly to assess the likely effects of the development, including both indirect effects and the cumulative effects of the pre-existing activities on the site and those flowing from the permission if granted. This was said to be a breach of the Town and Country Planning (EIA) Regulations 1999 ("the Regulations") and Directive 85/337/EEC as amended ("the Directive").
Mr Evans has an additional challenge to the failure of the Council to take enforcement action against what he alleges is the unlawful existing use of the existing buildings. He contends that the existing facility constitutes an EIA project and that the existing industrial use of the site as a packhouse is unlawful because no EIA has ever been carried out in respect of it as required by EU law and in particular Article 2 (1) of the Directive. His response to the contention by the Council and Vitacress that the existing uses are immune from enforcement and thus lawful by reason of the expiry of 10 years since the existing use began pursuant to sections 171B and 191 (2) of the Town and Country Planning Act ("TCPA"), is that if and to the extent that that contention is correct, it would be necessary to disapply section 171B in accordance with principles established by the European Court of Justice ("the ECJ") in case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 630.
Ground One: A failure to control the level of operations of the site by the imposition of condition(s).
Mr Evans contends that the Council unlawfully directed itself that it was not able to control by condition the level of operations at the site. As a matter of law he submits that, as was accepted at the hearing by Vitacress, it was lawfully open to the Council to impose conditions controlling any increase in the level of production at the site. As a result of that misdirection the Council he submits failed to take into account or consider whether such conditions should be imposed. The need for and/or appropriateness of such conditions were a material factor which the Council was obliged to address its mind to and had it done so it cannot be ruled out that it might have decided to impose such conditions. As a result the decision to grant planning permission was unlawful and should be quashed.
It is Mr Evans' case that the nature of the permission proposed to be granted was such that it was at the very least capable of leading (a) to increased levels of production at the enlarged site with consequent adverse effects on the discharge of pollutant effluents into the Bourne Rivulet and therefrom to the River Test and (b) to a significant increase in road traffic by industrial vans and lorries. The increase to the levels of production could come about in any or all of the following ways. First it would be possible for Vitacress or a subsequent owner or user of the enlarged site to move out existing storage functions from the area in the existing packhouse adjacent to the new northern storage area extension into that extension, thereby freeing up or liberating space in the existing packhouse for new processing-related functions, in particular packing machinery. Although any increase in the level of production caused thereby would result from an increase in production in the existing building which was not subject to existing planning restrictions and would not be covered by Condition 28, it would result indirectly from the grant of permission to erect the covered storage area to the north of the building. In addition in a plan of the proposed development submitted by Vitacress a rectangle inside the existing packhouse was marked "packing", whereas in the plan of the existing site it was unmarked, thus indicating that a part of the proposal was to introduce some packing related process into the rectangle which was not currently there which might add to productivity.
Second the expanded intake rooms at the extended area of the northeast side of the existing packhouse building could be used...
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