Planning permission – Development – Environmental impact assessment (EIA) – Defendants 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 – Application dismissed
The interested party owned and operated a watercress farm near Andover. The site was within an area of outstanding natural beauty. As well as a watercress farm 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 defendant council granted planning permission for the development of the site. 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 a new building to the north of the existing building for which planning permission had been granted was subject to restrictions on use, the main part of that building and other buildings were not.
The claimant had objected to the proposed development on environmental grounds and applied for judicial review of the defendants’ decision to grant planning permission. His principal concern was that the proposed development might lead to an increase in production at the site and pollution of the river by increased discharge of harmful effluent and increased levels of road use. The claimant contended that the defendants had: (i) unlawfully concluded that they was not able to control by condition the level of operations in the existing buildings; (ii) failed properly to assess the likely effects of the development, including the effect of the pre-existing activities on the site and those flowing from the permission in breach of the Town and Country Planning (EIA) Regulations 1999 and Directive 85/337/EEC as amended; and (iii) failed to take enforcement action against the allegedly unlawful use of the existing buildings on the grounds that the existing facility constituted an EIA project and no EIA had ever been carried out as required by EU law and in particular article 2 (1) of the Directive.
Although the defendants had 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, to the extent that the claimant’s contention was correct, it was necessary to disapply section 171B in order to give full effect to the principles of EU law established by the European Court of Justice in Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77) [1978] ECR 630.
Held: The application was dismissed.
(1) A condition was not to be imposed when granting planning permission for an ulterior purpose but had to fairly and reasonably relate to the permitted development which was a matter to be decided by the decision maker. The court would not interfere with such a decision unless it was established that the decision maker misdirected himself or reached a conclusion to which he could not reasonably have come: Kingston-upon-Thames Royal London Borough Council v Secretary of state for the Environment [1973] 1 WLR 1549; AIP (Stratford) Ltd v London Borough of Tower Hamlets [1976] JPL 234; Penwith District Council v Secretary of State for the Environment (1977) 34 P & CR 269; Newbury District Council v Secretary of State for the Environment [1981] AC 578; Delta Design and Engineering Ltd v Secretary of State for the Environment, Transport and the Regions (2000) 80 P & CR 76; R v Mendip District Council (2000) 80 P & C R 500; and Peak Park Joint Planning Board v Secretary of State for the Environment (1980) 39 P & CR 36 considered.
In the present case, the planning officers’ report contained a thorough examination and analysis of the issues which the planning committee needed to consider when deciding whether to impose a condition restricting production levels on the existing site. Matters of weight and judgment in relation to whether a condition fairly and reasonably related to a proposed development were for the decision maker and not for the court. In particular the weight to be attached to the possibility that the proposed development could as distinct from the certainty or probability that it would lead to an increase in production levels on the existing site was a matter on which the officers were entitled to express an opinion and on which the committee was entitled to accept that opinion and to reach the same conclusion as the officers. There was no warrant for concluding that that had not happened: Tarmac Heavy Building Materials UK Ltd v Secretary of State for the Environment, Transport and the Regions (2000) 79 P & CR 260 applied.
(2) The ultimate and important obligation imposed by the Town and Country Planning (EIA) Regulations 1999 on the local planning authority was not to grant planning permission without first having taken all that environmental information into account. It was implicit in the scheme that it was contemplated that there might and in many cases would be differing or conflicting views expressed by the applicant and other persons making representations as to the likely environmental effects of the proposal for which permission was sought. The 1999 Regulations were not based upon an unrealistic expectation that an applicant’s environmental statement would always contain the full information about the environmental impact of the project. They recognised that an environmental statement might well be deficient and make provision through the publicity and consultation processes for any deficiency to be identified so that the resulting “environmental information” provided the local planning authority with as full a picture as possible.
(3) In all the circumstances it was not Wednesbury unreasonable for the defendants in the present case to consider that the environmental statement and the addendum adequately addressed the question of indirect as well as cumulative likely effects of the proposals on the environment, that both documents constituted an environmental statement and further information respectively as defined in the regulations and that the addendum had adequately supplied the additional information requested by the council. It was important to bear in mind that an environmental statement need only include such information as was reasonably required to assess the environmental effects of the development and which the applicant can reasonably be required to compile.
(4) If the defendants had served an enforcement notice within the ten year limitation period stating that the existing use was a breach of planning control by reason of section 171A of the 1990 Act due to a change of use without planning permission having been given, the interested party could have appealed to the secretary of state on the ground that planning permission should be granted for mixed agricultural and predominantly industrial use. Such an appeal would have given rise to a deemed application for planning permission under section 177(5) which the secretary of state would have had to decide and would have required him to determine whether the existing use was development requiring environmental impact assessment. To do that he would have made a screening direction in respect of the existing use to see if it was likely to give rise to a significant environmental effect, following which he would either have directed an environmental statement to be produced or stated why he did not consider that it was likely to give rise to a significant environmental effect. The effect of section 171B was that, unless it was required to be disapplied as a matter of EU law, none of these steps might be initiated with the result that the existing use as at 2000 had avoided the need for development control and environmental impact assessment such as was required by article 2(1) of the Directive.
Furthermore, the court was satisfied that the ten year time limit for the bringing of enforcement action laid down by section 171B(3) satisfied the principle of equivalence and effectiveness, did not make reliance on the Directive by persons who were affected by a breach of the requirement in the Directive for securing an EIA impossible or excessively difficult, was reasonable and was justifiable by reference to the principle of legal certainty. Accordingly, section 171B was not incompatible with article 2(1) of the Directive and the Simmenthal principle, which was engaged only if and to the extent that national law was held to be incompatible with Community law, did not apply.
Robert McCracken QC and Ned Westaway (instructed by Richard Buxton, of Cambridge) appeared for the claimant; Clare Parry (instructed by Basingstoke and Deane Borough Council Legal Services) appeared for the defendants; Timothy Mould QC and Graeme Keen (instructed by Blake Lapthorne) appeared for the interested party.
Eileen O’Grady, barrister
