R (on the application of Evans) v Basingstoke and Deane Borough Council

Planning permission – Development – Environmental impact assessment (EIA) – Respondents granting planning permission for increased use of agricultural processing plant on premise that existing use lawful – Existing use allegedly breaching planning control but allowed by passage of time – Whether legislation permitting tolerated breach of planning control incompatible with EU law on EIA – Appeal dismissed The interested party owned and operated a watercress farm within an area of outstanding natural beauty. There were also buildings used by the interested party for sorting, washing and packing vegetables and salads for sale to customers. Operations at the site extracted water from the aquifer at the source of a rivulet and discharged waste water back into the River Test which was a site of special scientific interest. In October 2010, the respondent council granted planning permission for the development of the site. The main part of the existing buildings housed machinery used for packing watercress grown on site and watercress and other salads brought to site after they had been washed. Although a new building to the north of the existing building for which planning permission had been granted was subject to restrictions on use, the other buildings were not. The appellant objected to the proposed development on environmental grounds and applied for judicial review of the respondents’ decision to grant permission. His principal concern was that the proposed development might increase production at the site, pollution of the river and increased levels of road use. The appellant contended, among other things, that the respondents had failed to take enforcement action against the allegedly unlawful use of the existing buildings on the grounds that the facility constituted an EIA project and no EIA had ever been carried out as required by article 2 (1) of Directive 85/337/EEC (the EIA Directive). The respondents argued that the existing use was immune from enforcement and thus lawful by reason of the expiry of 10 years pursuant to section 171B of the Town and Country Planning Act 1990 but, in any event, it was necessary to disapply section 171B to give full effect to the principles established by the European Court of Justice in Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 630. The high court held that section 171B was clearly a procedural rule and that the Simmenthal principle did not apply because section 171B was not incompatible with the Directive: [2013] EWHC 899 (Admin); [2013] PLSCS 96. The appellant appealed, contending that there should be no time limit for enforcement action in respect of EIA development. In the absence of a certificate of lawful development, a landowner benefiting from the rule had no certainty that would be affected by removing the 10 year immunity. In the alternative, the appellant sought an order compelling the respondents to make a discontinuance order under section 102 of the 1990 Act. Held: The appeal was dismissed.The appellant’s argument that the imposition of a time limit was incompatible with the obligations of a member state under the EIA Directive appeared to fly in the face of well-established authority. Such time limits were an application of the important principle of legal certainty intended to protect both individuals and administrators: R v Durham County Council, ex parte Huddleston [2000] 1 PLR 122, R (on the application of Wells) v Secretary of State for Transport, Local Government and the Regions (Case C–201/02) [2004] ECR I–723 and EC Commission v United Kingdom (Case C-98/04) [2006] ECR 1-4003 considered. If time limits on taking enforcement action were not in principle incompatible with the obligations of a member state to ensure compliance with the Directive, the precise nature of the time limits fell within the procedural autonomy of the member state provided that the time limit complied with the principles of equality and effectiveness. The 10-year time limit imposed by section 171B of the 1990 Act satisfied the requirement of equality. A 10-year period provided local planning authorities with ample time to remedy breaches of planning control and did not render the exercise of individuals’ rights under the Directive to seek enforcement impossible or excessively difficult. In the present case, the appellant, or anyone in his position, could have taken the point that there had been a material change of use to mixed agricultural and industrial on the site requiring the respondents to take action as long as seven years ago, when an earlier planning application had been made to which he and others objected.To order the respondents to make a discontinuance order would be contrary to the principle of legal certainty. However, it remained open to the respondents to make such an order if it took the view that the operation was having a significant adverse effect on the local environment. Robert McCracken and Ned Westaway (instructed by Richard Buxton Solicitors) appeared for the appellant; Mary Cooke (instructed by Basingstoke and Deane Borough Council) appeared for the defendants; Timothy Mould QC and Graeme Keen (instructed by Blake Lapthorne) appeared for the interested party. Eileen O’Grady, barrister