Discontinuance orders and failure to comply with the EIA Directive

Section 102 of the Town and Country Planning Act 1990 empowers a local planning authority (“LPA”) to make an order requiring that (a) any use of land should be discontinued, or that any conditions should be imposed on the continuance of use, and (b) any buildings or works should be removed. The order may at the same time contain a grant of planning permission for any development of the land in question. For a LPA to take such action, it must have regard to the development plan and to any other material considerations. It must also appear to the LPA that it is expedient in the interests of the proper planning of its area to take such action. Any such order will not take effect unless and until confirmed by the Secretary of State. Once confirmed, the provisions of section 115 of the Act, relating to compensation, apply. While R (on the application of Campaign to Protect Rural England Oxfordshire) v Oxford City Council [2013] EWHC 4376 (Admin) involved only an oral hearing of an application for permission to seek judicial review, it suggests that the section 102 power could be properly used to rectify procedural irregularities in the context of Directive 2011/92/EU (“the Directive”). There, the LPA had granted planning permission for the erection of student accommodation in a location that had very attractive views and historic and cultural significance. It did so without adopting a screening opinion. The claimant contended that the development was an EIA one, and that the LPA was under a duty to nullify the consequences of an action that involved a breach of the Directive It also argued that the building was too large and should be reduced in size. The claimant requested the LPA to use its powers under section 102 to remedy the situation generally. On the LPA refusing to do so, the claimant sought to challenge its decision by means of judicial review. At the hearing, the claimant proposed an order obliging the LPA to make a discontinuance order under section 102 requiring (a) compliance with the Directive by means of submission of an environmental statement and (b) any subsequent necessary removal in whole or part of the building. While holding that an order requiring substantive steps to be taken would be premature, the court acknowledged that an order obliging procedural deficiencies to be rectified would be appropriate. It refused permission, however, on the interested party agreeing to volunteer the submission of an environmental statement. John Martin