In the case of EIA development, the ten-year time limit in section 171B(3) of the 1990 Act was not incompatible with the UK’s duty to comply with the EIA Directive.

In R (on the application of Evans) v Basingstoke and Deane Borough Council [2013] the local planning authority (“LPA”) had granted planning permission in 2010 for a material change of use of the application site from agricultural to mixed agricultural/industrial use with the industrial element predominant. It did so having concluded that the change of use had, in fact, occurred more than ten years earlier and so was immune from enforcement action under section 171B of the Town and Country Planning Act 1990 (“the Act”). Unfortunately, the LPA failed to appreciate that the development for which planning permission had been sought fell within Schedule 2 to the Town and Country Planning (Environmental Impact Assessment) Regulations 2011 and consequently it did not adopt a screening opinion. The claimant applied to quash the grant of planning permission, its only surviving ground of challenge before the Court of Appeal being based upon an argument that the ten- year time limit for taking enforcement action in the case of EIA development of this kind was incompatible with the UK’s obligation to secure compliance with the EIA Directive, in accordance with article 2(1) of that Directive. Accordingly, the domestic courts were obliged to disapply the section 171B time limits in relation to EIA development, and the LPA was now obliged to issue an enforcement notice under section 172 of the Act. Should the Court of Appeal not accept that submission, then in the alternative the LPA was under a duty to make a discontinuance order under section 102 of the Act. The Court of Appeal dismissed the appeal, holding as follows. The original submission did not accord with EU jurisprudence on the point. In fact, it flew in the face of well established authority that, provided they do not render the application of EU law impossible or excessively difficult, “time limits are an application of the principle of legal certainty protecting both individuals and administrators”.  Ten years provided ample time for enforcement action to be taken to remedy breaches of the EIA Directive by development of the present kind. Furthermore, it would be contrary to the principle of legal certainty to “side-step” the ten-year time limit by converting the LPA’s discretion to make a discontinuance order – if it thinks that it is expedient to do so in the interests of the proper planning of its area – into a duty to do so. John Martin