Retrospective planning permission and environmental impact assessment

Superficially at least, it might appear that the ability to grant retrospective planning permission under section 73A of the Town and Country Planning Act 1990 for a development requiring an environmental impact assessment (“EIA”) is inconsistent with Article 2(1) of Directive 2011/92/EU (“the Directive”). This obliges member states to adopt all measures necessary to ensure that, before development consent is given for a project likely to have significant effects on the environment, an assessment of its effects is carried out. However, the Court of Appeal in R (on the application of Ardagh Glass Ltd) v Chester City Council [2010] EWCA Civ 172; [2010] PLSCS 283 held that, on its proper interpretation, the Directive – then in its pre-consolidated form – was not inconsistent with the grant of retrospective planning permission for such a development. 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. (It has since been suggested that “exceptional circumstances” means that a compelling case must be made out for granting retrospective planning permission.) In R (on the application of Padden) v Maidstone Borough Council [2014] EWHC 51 (Admin); [2014] PLSCS 29 the claimant sought to quash the decision of the local planning authority (“LPA”) to grant retrospective planning permission for works of extension to a recreational fish farm. The developer had submitted an environmental statement, at the prompting of the LPA. However, its base line was the state of affairs at 2010, whereas the unauthorised development had been commenced as early as 2003. The court concluded that the officer’s report to the planning committee had not even drawn to the attention of the members that this was an EIA development, let alone attempted to assess whether there were exceptional circumstances warranting the grant of planning permission. (However, the judge was unwilling to hold that the inadequacies of the environmental statement resulted in an improper advantage to the developer.) Accordingly on this, and on other grounds, the court quashed the grant of planning permission. John Martin