England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		20 November 2013

1. LORD JUSTICE SULLIVAN: This is an appeal with the permission of Stadlen J against his order dated 10 May 2013 dismissing the Appellant's claim for judicial review of a planning permission dated 4 October 2010 which was granted by the First Respondent to the Second Respondent for development at Lower Link Farm, St Mary Bourne near Andover.
2. There is no issue as to the factual background of the claim for judicial review which is set out in considerable detail in the judgment of Stadlen J which is reported at [2013] EWHC 899 (Admin).
3. Before the judge the lawfulness of the planning permission was challenged on four grounds. The judge rejected all four grounds. Grounds one to three were not pursued by the Appellant in this appeal. The judge dealt with ground four, which is the subject of this appeal, in paragraphs 320 to 431 of his judgment.
4. The relevant facts in respect of this ground can be summarised as follows. Lower Link Farm is a watercress farm. Originally, it was in agricultural use. The produce which was sorted, washed and packed on site was grown on the farm. Over the years, the proportion of the produce sorted, washed and packed on the site which had been imported from other sites increased so that when the first Respondent decided to grant a planning permission in 2010, it did so upon the basis that there had been a material change in the use of the site to a "mixed agricultural/industrial use with the industrial element predominant" and that this change of use had occurred more than ten years ago, i.e. before October 2000.
5. The first Respondent, therefore, concluded that the existing use on the site was likely to be immune from enforcement action by virtue of section 171B of the Town and Country Planning Act 1990 ("the Act"). At the material time, section 171B provided:

"(1)Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of four years beginning with the date on which the operations were substantially completed.

(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.

(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach..."

6. For the purpose of these proceedings, the second Respondent concedes that the material change of use to a mixed agricultural/industrial use with the industrial use predominant was "schedule 2 development" within the meaning of the EIA Regulations which should have been, but was not, screened in accordance with the EIA Regulations and the EIA Directive to enable the First Respondent to decide whether the development was "likely to have significant effects on the environment by virtue of factors such as its nature, size or location" before development consent was granted.
7. In summary, the Appellant submits, and the Second Respondent concedes, that the development by way of the material change of use which had occurred by 2000 was "EIA development", but the requirements of EIA Regulations and the EIA Directive were not complied with.
8. Subject to the issue of noncompliance with the EIA Directive, it is common ground that the breach of planning control in the present case is one of those which falls within sub-section (3) of section 171B, so that if the first Respondent was to take enforcement action, it had to be taken within ten years of the breach.
9. On behalf of the Appellant, Mr McCracken QC submitted that the ten year time limit for taking enforcement action insofar as it applied to EIA development was incompatible with the United Kingdom's obligation to secure compliance with the EIA Directive, article 2(1) of which provides:

"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects."

10. He submitted that in order to ensure compatibility with the Directive, the domestic courts were obliged to disapply the time limits in section 171B in respect of EIA development and the first Respondent was obliged to issue an enforcement notice under section 172 of the Act. There could be no time limit for taking enforcement notice proceedings in respect of EIA development carried out in breach of the Directive.
11. If the Court did not accept that submission and concluded that the First Respondent was prevented by section 171B from taking enforcement action under section 172, Mr McCracken submitted that the First Respondent was under the duty to make a discontinuance order under section 102 of the Act in order to secure compliance with the Directive, and the Court should order the First Respondent to discharge that duty by way of making a mandatory order.

Section 102 provides, so far as relevant:

"(1) If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) -

(a) That any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land; or

(b) That any buildings or works should be altered or removed,they may by order -

(i) Require the discontinuance of that use, or

(ii)Impose such conditions as may be specified in the order on the continuance of it, or

(iii)Require such steps as may be so specified to be taken for the alteration or removal of the buildings or works, as the case may be."

In support of his submission that the time limits for taking enforcement action in section 171B are incompatible with the EIA Directive. Mr McCracken referred us to the opinion of Advocate General Colomer in Commission v United Kingdom [2006] ECR I-4003. In that case, the Commission sought a declaration that the United Kingdom had failed to fulfill its obligations under Articles 2(1) and 4 of the EIA Directive. The Advocate General referred to the relevant United Kingdom legislation including sections 171B and 191 of the Act and said this in paragraphs 26 to 29 of his opinion:

"(26) In a way, the limits of that discretion are to be found in Article 2(1) of the directive, which defines its fundamental objective in such a way that projects with a significant effect are always subject to an impact assessment.

(27) In other words, to achieve its proper purpose, does not exempt any project with those characteristics from assessment, (11) with the result that, although the national public authorities have a wide discretion, Community law precludes implementation of such projects without prior authorisation and, if appropriate, without assessment of their impact, where implementation becomes irreversible with the passage of time.

(28) That is precisely the effect of the United Kingdom system, which, as the case of the scrap yard over which these proceedings arose demonstrates, and as the defendant Government accepts, allows action to be taken in breach of the directive, without prior evaluation or impact assessment, and to be legitimised by the passage of time so that the situation can no longer be remedied.

(29) The analysis of the breach ought to end at this point, in the light of the prior admission; however, since the parties have become embroiled in a dispute as heated as it is pointless, I feel obliged to clarify a few matters."

Mr McCracken submitted that the proper interpretation of these paragraphs was that the Advocate General's Opinion was that section 171B was incompatible with the Directive. He submitted that persuasive weight should be given to the Advocate General's Opinion to that effect.

12. The difficulty with that submission is that the Advocate General's Opinion was not accepted by the Court. In paragraphs 19 to 23 of its judgment, the Court said this:

"(19) During both the pre-litigation stage of the present procedure and the litigation itself, the Commission concentrated its criticisms on the issue of LDCs in so far as it allows by-passing of the procedures governing application for consent and environmental impact assessment required by Directive 85/337 for projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location.

(20) The Commission has not put forward any complaints concerning the actual existence of time-limits for the taking of enforcement action against development which does not comply with the applicable rules, although the introduction of LDCs is by its very nature inseparable from the provisions laying down such rules of limitation. Pursuant to section 191 of the TCPA, an LDC is issued, in particular, when no enforcement action may then be taken against the uses or operations concerned, whether because they did not involve development or require planning permission or because the time for enforcement action has expired.

(21) Consequently, the present action for failure to fulfill obligations, since it puts before the Court only one aspect of a legal mechanism composed of two inseparable parts, does not satisfy the requirements of coherence and precision referred to above.

(22) That conclusion is all the more necessary because the arguments put forward by the United Kingdom Government to contest the failure to fulfill obligations are based, in essence, on the system of time-limits which the Commission failed to include in the subject-matter of the dispute and which, accordingly, could not form the basis of detailed discussion between the parties.

(23) It follows from the foregoing that the action must be dismissed as inadmissible."

13. If the very existence of a system of time limits for taking enforcement action was incompatible with the Directive, it seems to me that the Court would surely have said so. The action was dismissed as inadmissible because the Commission had failed to complain about that aspect of the United Kingdom's two part legal mechanism.
14. For my part, I am far from convinced that the Advocate General was referring to both parts of the United Kingdom's legal mechanism in paragraphs 19 to 23 of his opinion, but if he was, as submitted by Mr McCracken, then he was doing so on an understanding of that mechanism which was necessarily incomplete because detailed discussion of the time limits aspect of the mechanism had not been possible because of the way in which the Commission had formulated its complaint.
15. The Court gave its judgment in Commission v United Kingdom in as long ago as May 2006. If the system of time limits in section 171B about which the Commission had not complained in that case, was felt by the Commission to be incompatible with the Directive, the Commission might have been expected to renew its complaint, dealing this time with both elements of the United Kingdom's legal mechanism.
16. Other than the opinion of the Advocate General in Commission v United Kingdom, Mr McCracken was not able to point to any decisions in the European authorities which supported his proposition that time limits for taking enforcement action were incompatible with the Directive.
17. Indeed, the submission would appear to me to fly 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." See paragraph 64 of the Opinion of Advocate General Jacobs in Denkavit [1996] 3 CMLR 504 to which we were referred by Mr McCracken.
18. Mr McCracken sought to derive some support for his submission that section 171B was incompatible with the Directive from the observations of HHJ Mole QC in Ardagh Glass v Chester City Council [2009] EWHC 745 (Admin) [2009] Environmental Law Reports 34. In that case, the judge was considering a judicial review application for a mandatory order requiring the City Council to take enforcement action in respect of a substantial glass factory which had been constructed without planning permission. The judge granted the order.
19. Having determined that issue, the judge then considered the Claimant's application for a declaration that it would be unlawful to grant retrospective planning permission for the factory because it would be incompatible with the Directive to do so. He rejected that aspect of the claim for judicial review and an appeal against that aspect of his judgment was dismissed.
20. When considering this second issue, the judge said this in paragraph 110 of his judgment:

"In my judgment, a purposive interpretation of Article 2(1) strongly suggests that for the defendant Council to permit the Quinn Glass development to achieve immunity, whether by a positive decision not to take enforcement action or by mere inaction, would, as Schiemann LJ contemplated, amount to a breach of the UK's obligations under the Directive. It may be that the provisions of section 171B need to be re-examined and perhaps disapplied in the case of EIA development so that for such development immunity would never arise and pre-emptive EIA development could only become lawful by, after full public participation, undertaking a comprehensive EIA comparing both initial and current circumstances and establishing exceptional justification. However, the circumstances of the Prokopp case are very different from the present case and, in my view, distinguishable..."

21. The reference to Schiemann LJ is a reference to Schiemann LJ's judgment in R (Prokopp) v London Underground Limited [2003] EWHC Civ 961 [2004] Environmental Law Reports 8 in which he said at paragraph 38:

"I would accept for the purposes of the present appeal that if a project which falls within the Directive goes ahead without there having been an Environmental Impact Assessment and national authorities simply stand by and do nothing then this might well amount to a breach of our obligations under the Directive. That is not this case."

22. It is important to bear in mind that in both Prokopp and Ardagh, the time limit for taking enforcement action had not expired. In those circumstances, a decision not to take enforcement action in respect of EIA development carried out in breach of planning control and, therefore, in breach of the EIA Directive, might well amount to a breach of article 2(1) of the Directive, but those cases are not authority for the proposition that if the time limit for taking enforcement action has expired, the fact that the local planning authority is unable to take enforcement action is in breach of the directive. As Stadlen J observed in paragraph 384 of his judgment, "The obiter comments of HHJ Mole QC pose rather than answer the question raised in this case."
23. Although Mr McCracken sought to persuade us that Stadlen J erred in concluding that the time limits in section 171B were procedural rather than substantive (see paragraphs 397 to 400 of the judgment below), he was not able to identify any authority, either European or domestic, which supported that proposition or which called into question the judge's careful analysis of the authorities relevant to that issue.
24. In my judgment, the time limits imposed by section 171B fall squarely within the principles in R (on the application of) Wells v Secretary of State for Transport, Local Government and the Regions [2004] 1 Common Market Law Reports 31. In that case the Court of Justice had to consider the scope of the United Kingdom's obligation to remedy a failure to carry out an environmental assessment of a permission for an EIA development when new conditions were imposed in respect of an old mining permission).
25. Having recorded the submission of the United Kingdom government that the minerals planning authority was under no obligation to revoke or to modify the permission, the Court said this in paragraphs 64 to 67:

"(64) As to that submission, it is clear from settled case-law that under the principle of cooperation in good faith laid down in Article 10 EC the Member States are required to nullify the unlawful consequences of a breach of Community law (see, in particular, Case 6/60 Humblet [1960] ECR 559, at 569, and Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 36). Such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned (see, to this effect, Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraph 13).

(65) Thus, it is for the competent authorities of a Member State to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment (see, to this effect, Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 61, and WWF and Others, cited above, paragraph 70). Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of the Member States, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided for by Directive 85/337.

(66) The Member State is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment.

(67) The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness)..."

In paragraph 70, the Court said:

"The answer to the third question must therefore be that under Article 10 EC the competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project as provided for in Article 2(1) of Directive 85/337. The detailed procedural rules applicable in that context are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness). In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project to an assessment of its environmental effects, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered."

26. If, as I have concluded, time limits on taking enforcement action are not in principle incompatible with a member state's obligations to ensure compliance with the Directive, then the precise nature of the time limits is a matter which falls within the principle of procedural autonomy of the member states, provided that the time limits imposed by the member state comply with the principles of equivalence and effectiveness.
27. Mr McCracken confirmed that there is no issue in the present case with the principle of equivalence. The ten year period applies equally to EIA Development and non EIA Development alike. His submission that the time limits in section 171B did not comply with the principle of effectiveness focused on the need for there to be effective remedy for individuals in the position of the Appellant who would have been able to participate in the EIA process, but was deprived of that opportunity because the Directive was not complied with.
28. Although Mr McCracken did not concede the ten year period for taking enforcement action did not render it impossible in practice or excessively difficult for local planning authorities to secure compliance with the Directive by way of enforcement action, he did not in his oral submissions seek to persuade us the ten year period would pose a significant problem for local planning authorities in general or for this local planning authority in particular. He was right not to do so.
29. In terms of effectiveness from the point of view of a local planning authority, ten years provides ample time for enforcement action to be taken to remedy breaches of the Directive by the kinds of development that fall within section 171B(3). By definition, EIA development is development which is "likely to have significant effects on the environment by virtue of factors such as its nature, size and location." It could not sensibly be suggested that a period of ten years for a local planning authority to respond to such effects by way of enforcement action is in any way inadequate.
30. Similar considerations, in my judgment, apply to the ability of individuals to ensure that the Directive is complied with. The United Kingdom has chosen to implement the Directive by tying the EIA process to the process of applying for planning permission. Failure to obtain planning permission for development, including EIA development, is a breach of planning control. It is the local planning authority that has the power to remedy breaches of planning control by way of taking enforcement action.
31. Enforcement powers are not conferred on individuals, but they can and do seek to persuade local planning authorities to exercise their enforcement powers. If a local planning authority wrongly fails to exercise those powers in respect of EIA development, an individual can seek a mandatory order in judicial review proceedings, as was done in the Ardagh case.
32. Mr McCracken submitted that was in an extreme case. That may well be so, but it does illustrate the availability of judicial review to compel a local planning authority to take enforcement action in order to secure compliance with the Directive. A ten year period for taking enforcement action in respect of non operational development (other than a change of use to a single dwelling house) does not render the enforcement of individuals' rights under the Directive either impossible or excessively difficult.
33. At one stage in his submissions, Mr McCracken appeared to be submitting that the United Kingdom's approach to Directive, which leaves enforcement action in the hands of local planning authorities rather than individuals, is not compatible with the rights conferred upon individuals by the Directive. There is no support for that submission in any of the authorities in which the Court of Justice has had to consider the manner in which the United Kingdom has implemented the Directive.
34. In the R v Durham County Council exp Huddleston [2001] WLR 1484, this Court concluded that a three month time limit within which a local planning authority had to determine appropriate conditions in a minerals permission, if permission was not to be deemed to have been granted subject to the conditions suggested by the applicant, was not compliant with the Directive. However, the contrast between the three month period within which the local planning authority had to reach a decision in that kind of case and the ten year period for taking enforcement action in section 171B(3) in the present case could not be more striking.
35. Mr McCracken submitted that it was not sufficient to consider the principle of effectiveness by reference to the ability of individuals generally to persuade, or to require by mandatory order, local planning authorities to take enforcement action within ten years of a breach of planning control. He submitted that the focus should be upon whether it was excessively difficult (it was not suggested that it was impossible) for this particular Appellant to do so on the particular facts of this case.
36. For my part, I would prefer to express no view as to whether that is the proper test. It is unnecessary to reach a decision on that issue because whether the principle of effectiveness is tested at a structural level (see above) or at an individualised level, the answer in the present case is the same. It was not excessively difficult for an individual concerned about the environmental impact of the change of use which had occurred by 2000 or for this particular Appellant to challenge the lawfulness of that change of use and hence the breach of the Directive.
37. The present claim for judicial review is not the first claim that has been made by this Appellant in respect of the Second Respondent's use at Lower Link Farm. In 2003, the Second Respondent applied to the First Respondent for planning permission for a somewhat larger development than that proposed in 2010. In its application, the Second Respondent described the use of the site as "watercress growing and salad packing" and referred to an accompanying environmental statement for a detailed description of the salad packing process.
38. The Planning Officer's report for the planning committee on 19 November 2003 summarised the objections to the application. They included an objection from the Parish Council that:

"The packing process does not constitute an agricultural operation. A small proportion of about 4.5 per cent (10 per cent of 30 per cent watercress) of the produce packed are on the site. Lonoros wild rocket are not grown in this country and coupled with the introduction of salad dressings in the salad stage, the Council is of the opinion that the operation is not agricultural and constitutes an industrial process."

39. The Officer's report also summarised the points that had been made in 21 letters of objection from the public. Those points included the following:

"This is not an agricultural use as import salad produce from continent. This is not packing but processing plant."

40. The Appellant was one of the 21 objectors at that stage. Whether or not he personally made this particular point, the Planning Officer's report would have been publicly available. When describing the proposed development in 2003, the planning officer said this.

"The Applicant has been importing watercress into the site for packing and processing since 1982 and started to import other salad produce for the packing and processing of mixed salads in 1988."

41. It seems that that description was borrowed from the environmental statement which had been submitted by the Second Respondent. In that document, the description of the importing activities had continued as follows:

"Since this time, the level of imported salads has risen rapidly to approximately 90 per cent of all produce processed on the site today."

The Planning Officer's report continued:

"Whilst it is acknowledged that the packing plant processes salads grown elsewhere, it does also have all the produce grown on site. In this regard, therefore, the activities that take place are considered to be within the remit of agricultural diversification. The operations of the site are precisely the type advocated in annex C of EBG7 which provides examples of potential farm diversification enterprises..."

The Planning Officer's report concluded.

"This is an established commercial building on an established commercial site."

42. The Appellant challenged the grant of permission in April 2004. In August 2004, the planning permission was quashed by consent because the First Respondent had not considered whether the proposed development was schedule 2 development and if so, whether it was EIA development in breach of the Directive.
43. On the basis of this publicly available material, it was open to the Appellant and others in his position to take the point that is now taken; namely, that there was a material change of use to a predominantly industrial use which was schedule 2 development in breach of the Directive at any time after receipt of the Planning Officer's report.
44. It is true that the First Respondent does not appear to have realised, or if it did realise did not act upon, the implications of the description of the current use in the 2003 application. It is also true that the Second Respondent did not concede that the development which had, in fact, occurred by 2000 was schedule 2 development until the hearing before Stadlen J and then conceded it only for the purposes of those proceedings.
45. Those matters do not alter the fact that the material on which the Appellant could have contended that the First Respondent in not taking enforcement action against the change of use was in breach of its obligations under the Directive had been publicly available for nearly seven years before the ten year period expired. In these circumstances, it is quite impossible to conclude that it was "excessively difficult" for him to take proceedings to ensure that the First Respondent secured compliance with the Directive. For these reasons, I would dismiss the challenge to the 2010 planning permission based on section 171B.
46. In these circumstances, I accept the submissions of Miss Cook on behalf of the First Respondent and Mr Mould QC on behalf of the Second Respondent that the section 102 issue does not arise. If it is permissible in accordance with the principle of legal certainty for the United Kingdom to impose a time limit on the taking of enforcement action and the time limit for remedying the failure to comply with the Directive in this case has passed, it would be contrary to the principle of legal certainty to "side step" the ten year time limit by converting the local planning authority's discretion to make a discontinuance order if it thinks it expedient to do so in the interests of the proper planning of its area into a duty to make a discontinuance order.
47. That is not to say that the power conferred by section 102 is not available to the First Respondent. While the time for securing compliance with the Directive has passed, the First Respondent is still able to take action under section 102, if it considers it expedient to do so, if the use of the site is having a significantly adverse effect upon the environment. If it is not having such an effect, then it is difficult to see how a section 102 notice could be justified, but whether a section 102 notice would be expedient in the interests of a amenity is a matter for the First Respondent to decide.

For these reasons, I would dismiss this appeal.

48. LORD JUSTICE AIKENS: I agree.
49. LORD JUSTICE PATTEN: I also agree.