Environmental Impact Assessments and Enforcement Action

May 2nd, 2013

Two judgments delivered this week address the relationship between the enforcement regime under the Town and County Planning Act 1990 and the requirements imposed on developers to provide environmental information and on local authorities to undertake an Environmental Impact Assessment (“EIA”). The cases address i) whether a local authority is required to commence enforcement action where an EIA development was not supported by the grant of planning permission and ii) whether immunity from enforcement action following a change of use in the absence of an environmental impact assessment is incompatible with EU law. Both questions were answered in the negative.

No duty to take enforcement action and effect of delays in providing an environmental statement

In R (Baker) v Bath and North East Somerset [2013] EWHC 946 (Admin) Kenneth Parker J held that a local planning authority was not under a duty to issue an enforcement notice wherever a development which required an EIA was unsupported by a grant of planning permission which had properly taken into account environmental information.

The claimant lived near a waste composting site which had been operated in breach of planning conditions and later without planning permission. An application for planning permission was made and following a screening opinion, the authority determined that the development required an EIA. Because the application related to EIA development, permission could not be granted without prior consideration of environment information (including an environmental statement) – see the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999, regulation 3(2). An inadequate environmental statement was provided by the developer, following which the local authority gave the developer a number of months to produce an adequate statement of environmental information in order to avoid the issuing of an enforcement notice.  The claimant argued that on receipt of the secretary of state’s screening decision, the local authority had been legally obliged to issue an enforcement notice and further had been wrong to allow the developer further time to present an environmental statement.

Kenneth Parker J held that EU law principles did not impose a duty on the local authority to immediately issue an enforcement notice wherever there was EIA development unsupported by a grant of planning permission which had properly taken account of environmental information, holding that such a position was “extreme”. Citing the case of Ardagh Glass Ltd v Chester City Council [2010] EWCA Civ 172, he held that the grant of retrospective planning permission in respect of an EIA development was permissible if there were exceptional circumstances, which the judge interpreted to mean that a particularly compelling case must be made out for retrospective permission. This was inconsistent with the alleged duty to commence enforcement action.

In relation to the delay in providing environmental information, it was held that allowing the developer a period of ten months to present an adequate environmental statement was close to running the risk of being incompatible with EU. However, in circumstances where there was a real probability that the developer would present a compliant statement by the new deadline the local authority had reached a fair, reasonable and proportionate decision.

Sufficiency of environmental statement and immunity from enforcement action

In R(Evans) v Basingstoke & Deane Borough Council [2013] EWHC 899 (Admin), Stadlen J held that immunity from enforcement action conferred by s.171B of the Town and Country Planning Act 1990 was not incompatible with the requirement in Directive 85/337, Article 2(1) which required a change of use at a site which had significant environmental effects to be subject to  an EIA.

The claimant challenged the grant of planning of planning permission for the development and expansion of a watercress farm and salad packaging plant within an AONB on the basis that it would lead to increased pollution and road use. The claimant argued, inter alia, that i) the authority was in breach of Directive 85/337 and the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 by failing properly to obtain environmental impact information and  ii) statutory immunity from enforcement action conferred by the Town and Country Planning Act 1990 s.171B was incompatible with art.2(1) of the Directive and ought to be disapplied.

The Court relied on the principle established in R (on the application of Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin) that the adequacy of an environmental statement was a matter for the Council subject to review on Wednesbury principles. Stadlen J held that the local authority had not been Wednesbury unreasonable in concluding that an environmental statement and an addendum were adequate and satisfied the requirements of EU law – the adequacy of the environmental statement was for the local authority, not the court, to determine. Further, it was unrealistic to expect an environmental statement to contain “full information” and given the entitlement to request further information, it would be rare for an assessment to be classed as so deficient that it fell short of constituting a proper assessment.

Further, the court rejected the claimants’ argument that the local authority had misdirected itself in concluding that the site’s industrial element was likely to be immune from enforcement by virtue of acquired immunity under s.171B. The claimant argued that if the Council had served an enforcement notice within the ten year limitation period stating that the existing use was a breach of planning control, the developer could have appealed to the Secretary of State on the ground that planning permission should be granted for the 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, requiring the Secretary of State to determine whether the existing use was development requiring an EIA. To do that, the Secretary of State would have made a screening direction, and if the use was likely to give rise to a significant environmental effect, an environmental statement would need to be produced. However, the effect of immunity under section 171B is that none of these steps may be required. However, the Court held that s.171B was not incompatible with the obligation in art.2(1) of the Directive to ensure that a change of use at the site should be subject to an environmental impact assessment. Section 171B was a procedural rule rather than a substantive rule and satisfied the principle of equivalence and effectiveness, did not make reliance on the Directive impossible or excessively difficult, and was reasonable and justifiable by reference to the principle of legal certainty.

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