Ardagh Glass Ltd, R (on the application of) v Chester City Council & Ors

This is an appeal from that part of the order, dated 8 April 2009, of HHJ Mole QC, sitting as a deputy High Court judge, in which he decided:

In paragraphs 3 to 7 of his judgment the judge set out the planning history of the interested party's glassworks at Elton, near Chester (“the works”). The works, on a site which had previously been occupied by a power station, were designed to be the largest glass container factory in Europe. Site enabling works began in October 2003 and the first glass for customers was produced on 2 May 2005.

The works were constructed without planning permission. It is common ground that the construction of the works was “EIA development” for the purposes of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 as amended (“the regulations”). The regulations prohibit the grant of planning permission for EIA development without consideration of the environmental information required by the regulations [an environmental statement and any representations made in response thereto].

Applications for planning permission for the works were made in July 2004 when the plant was under construction. The applications were called in by the Secretary of State. After a lengthy public inquiry held between November 2005 and March 2006 the Secretary of State accepted the Inspector's recommendation and refused planning permission in a decision letter dated 22 January 2007.

In paragraph 66 of the decision letter the Secretary of State said:

“The Secretary of State agrees with the Inspector (IR 9.225) that submitting a fresh application with a comprehensive approach may be an appropriate way forward in the circumstances of this case. This decision letter sets out where the Secretary of State has particular concerns, and it appears to her that overcoming those deficiencies might enable the material considerations in a fresh application to be weighed favourably enough so that planning permission may be granted.”

In January 2008 the interested party submitted two applications for planning permission. Those applications sought, in part, retrospective planning permission under section 73A of the Town and Country Planning Act 1990 [“the Act”] for the development which had been carried out at the works; permission was also sought for various new elements and alterations. Those applications were accompanied by an environmental statement.

The two applications were undetermined when the appellant's claim was considered by the judge in March 2009. On 10 and 12 November 2009 the respondent granted two planning permissions, including retrospective planning permission for the existing works. On 18 December 2009 the claimant applied for permission to apply for judicial review of those permissions.

There were two issues before the judge. The first was whether he should grant the appellant's application for a mandatory order requiring the respondent to issue an enforcement notice in respect of the breach of planning control that had occurred by reason of the unlawful development of the works. The second was whether he should make an order prohibiting the grant of any retrospective planning permission for the construction of the works, or alternatively make a declaratory order that such a grant of permission would be unlawful.

The judge having resolved the first issue in the appellant's favour, an enforcement notice was duly issued by the respondent under section 172 of the Act. The interested party appealed to the Secretary of State against the enforcement notice under section 174 of the Act; that appeal has not yet been determined by the Secretary of State. There is no longer any appeal against the judge's decision on issue 1, so I will say no more about it.

When dealing with issue 2 the judge said that the appellant's central submission was that:

“on its proper interpretation EC law does not permit the grant of retrospective planning permission for EIA development" (see paragraph 69 of the judgment).”

Having considered the relevant authorities, including the authority particularly relied upon by the appellant -- the Commission v Ireland case, C-125-06 (“the Ireland case”) -- the judge rejected that submission. He concluded:

The appellant's grounds of appeal contended that the judge erred in holding that: 1) planning permission could be granted retrospectively for EIA development; and 2) the defendant was not required to serve a stop notice in respect of unauthorised EIA development.

In his submissions this morning, Mr McCracken QC, on behalf of the appellant, explained that, in respect of the first of those grounds, the submission was that retrospective permission could be granted only in accordance with Article 2(3) of the directive (see below).

Before considering Article 2(3) I will consider whether the judge was correct to reject the bald proposition that community law did not permit the grant of retrospective planning permission for EIA development. I have no doubt that the judge's conclusion was correct for three reasons: it accorded with a) common sense; b) the need to ensure that measures to ensure compliance with the directive are proportionate in accordance with community law; and c) the ECJ's judgment in the Ireland case, which in my view expressly recognises that, subject to certain conditions, national law may permit regularisation of unauthorised EIA development.

Given the variety of circumstances in which EIA development might be carried out in breach of the requirements of the directive and the wide range of environmental consequences of such a breach, it would be very surprising if there was only one lawful response to a breach, however caused and whatever its environmental consequences. At one extreme, development causing very serious environmental harm might have been carried out in flagrant and deliberate contravention of the directive. In such a case, removal of the unauthorised development would be appropriate. At the other end of the spectrum there might have been an inadvertent failure to comply with the directive (for example, development carried out in reliance upon an apparently valid planning permission which was subsequently quashed on legal grounds, quite unconnected with the EIA), which had not merely caused no environmental harm but was positively beneficial in environmental terms. It would, in my judgment, be an affront to common sense if retrospective planning permission (correcting the legal error unrelated to the EIA) could not be granted in such a case, and the local planning authority was compelled to require the removal of the development prior to considering any further application for planning permission, not least because the process of removal might itself cause serious environmental harm.

While member states must take all appropriate measures to ensure compliance with the directive and to nullify the effects of any breach, it is a fundamental principle of community law that such measures must themselves be proportionate. For the reasons set out in the previous paragraph, a prohibition upon the grant of retrospective planning permission for EIA development, regardless of the circumstances surrounding, and the environmental consequences of, the breach of the directive, would be wholly disproportionate.

The ECJ would no doubt have had such considerations well in mind when it said, in paragraph 57 of its judgment in the Ireland case:

“While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the condition that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception.”

In paragraph 61 the ECJ said that Ireland had failed to comply with the requirements of the directive:

“by giving to retention permission, which can be issued even where no exceptional circumstances are proved, the same effects as those attached to a planning permission preceding the carrying out of works and development ...”

Those passages seem to me to be an express recognition by the ECJ that, subject to certain conditions, there may be exceptional circumstances in which a retention permission may be granted for EIA development.

In his oral submissions Mr McCracken referred us to the case of Von Colson v Land Nordrhein-Westfalen [1986] 2 CNLR 430 for the proposition that, for national sanctions to be effective in ensuring compliance with a fundamental principle of the Treaty, they must have a deterrent effect (see paragraphs 23, 28 and 29 of the ECJ's judgment).

In that case the court was satisfied of the need for a deterrent effect in a very different legislative context -- that of employment law. Ensuring that the conditions referred to by the ECJ in the Ireland case are complied with and that any retrospective planning permission is the exception would have some deterrent effect. The short answer to this point is that the ECJ might have said that the need to deter developers from breaching the directive was surely that it was necessary that regularisation by way of a retrospective planning permission should not be permissible under national rules under any circumstances whatsoever, but it did not do so.

Mr McCracken referred to various differences between the planning procedures in Ireland and the United Kingdom and submitted that the system in Ireland was stricter than that in the United Kingdom. Such differences are, in my judgment, of no consequence, given the ECJ's recognition of the principle in paragraphs 57 and 61 of its judgment that, subject to certain conditions, national law may permit the regularisation of unauthorised EIA development.

Although it is arguably too late to serve a stop notice, the court would have power, in an appropriate case, to grant injunctive relief. However, once it is accepted that retrospective planning permission for unauthorised development is permissible in principle (subject to certain conditions), there is no substance in the appellant's further submission before the judge that the respondent was bound to issue a stop notice and not merely to issue an enforcement notice. The latter was sufficient to ensure the removal of the unauthorised EIA development if retrospective planning permission was not granted either by the respondent under section 73A, or by the Secretary of State under section 177 in response to any appeal against the enforcement notice by the interested party.

Article 2(3) of the directive [transposed by regulation 4(4) and (4A) of the regulations] provides as follows:

In 2006 the European Commission gave guidance as to the circumstances in which Article 2(3) may be invoked:

In the appellant’s skeleton argument it was submitted that, by reference to the commission's guidance, this was not an exceptional case for the purposes of Article 2(3), and in any event the conditions of paragraphs a) to c) of that Article had not been met. Both the respondent and the interested party acknowledged that the conditions in paragraphs a) to c) had not been complied with, but submitted that this was not an Article 2(3) case. I agree with that submission. In my judgment, Article 2(3) is not relevant for present purposes; it is not concerned with the circumstances in which, exceptionally, national law may permit the regularisation of an unauthorised project which is subject to the requirements of the directive. Instead, it defines the circumstances in which specific projects may be exempted from the requirements of the directive. In such exceptional cases, the need for an environmental impact statement is dispensed with, and there need be no assessment unless the member state considers that “another form of assessment would be appropriate”.

Although the ECJ referred to Article 2(3) when setting out the provisions of the directive in the Ireland case, there is nothing in its decision to suggest that when it referred to “the exception” or “exceptional circumstances” in paragraphs 57 and 61 of its judgment it was referring to “exceptional cases” within Article 2(3). The ECJ could have said that regularisation could be lawfully effected only by the application of Article 2(3), but it did not do so. Had Article 2(3) been thought to have been relevant to the regularisation of EIA development, which had been carried out in breach of the requirements of the directive but which was subject to the requirements of the directive, then the commission's guidance would have been highly material, but it is nowhere referred to in the ECJ's judgment. In this respect, I consider that the position following the ECJ's decision is acte claire and there is no need for a reference in respect of Article 2(3) as submitted by the appellant.

In paragraph 102 of the judgment the judge said that retrospective planning permission could lawfully be granted for EIA development provided the decision taker, whether the local planning authority or the Secretary of State, made it plain:

In paragraph 103 the judge referred to the approach to be adopted by the Secretary of State on an appeal against an enforcement notice, but his observations are equally applicable to a local planning authority considering an application under section 73A:

I acknowledge that the United Kingdom legislation is broadly similar to, and indeed in certain respects somewhat less stringent than, Ireland's Planning and Development Act 2002 which was considered by the ECJ in the Ireland case. It may, therefore, be necessary for the United Kingdom Government to consider whether amending legislation should be enacted. In the meantime, however, it is perfectly possible to interpret existing United Kingdom law so as to secure conformity with community law as declared by the ECJ in the Ireland case.

Mr McCracken submitted that conformity had to be secured by way of an enactment; it was not possible to rely on administrative or judicial practice. In support of this submission he cited Commission of the European Communities v Italian Republic, case C-58/90. However, in that case the national law in question was expressly discriminatory, and thus any administrative or judicial practice to the contrary would, as the court pointed out, simply cause an “ambiguous state of affairs” for the persons concerned.

In those circumstances it is not surprising that it was concluded that Italian law could not be interpreted so as to be in conformity with the requirements of community law. In the present case, by way of contrast, there is a discretion to grant retrospective planning permission conferred by section 73A and section 177, but there is no requirement that planning permission shall be granted. It is therefore perfectly possible for the decision taker to ensure that the discretion is exercised so as to conform with the ECJ's judgment. To that end, I would endorse those passages which I have set out in paragraphs 102 and 103 of the judge's judgment. They accord with the ECJ's judgment in the Ireland case and, if the decision taker exercises his discretion in accordance with that guidance, there will, in my judgment, be no breach of community law.

If my Lords agree with this conclusion then the lawfulness of the two permissions subsequently granted by the defendant is a matter for the administrative court to decide in the judicial review proceedings applying the approach to the directive set out above.

I agree.

I also agree. I will just add a few words. First, I think it follows from what my Lord has said that we were regarding this case as acte clair, so that any question of reference to the European Court of Justice does not arise.

Second, I would make this observation about the contentions advanced by Mr McCracken. They are so extreme that, even in a case where the environmental benefit of a project is unarguably great, it would be necessary to undo the project (if that were possible) however undesirable that might be. That is such an absurd position that I cannot believe it to be EU law.

Finally, I would say a word about the Aarhus Convention of 25 June 1998. This is an international convention to which the EU is a party; its title is the Convention on the Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Because the EU is a signatory to the Convention, Mr McCracken argues that it has direct effect.

I am content to assume that for the moment, but it does not assist Mr McCracken because the provision he invoked has nothing whatever to do with this case at all. It arises under Article 9, headed Access to Justice. That contains a number of provisions about access to justice and the need for speed and low cost. The provision of which Mr McCraken relied on particularly is Article 9.4. I should perhaps read Article 9.3 as well:

“3.

In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

4.

In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.”

The whole of this is about access to justice and not about how, once access to the court or to the administrative bodies is provided, the actual case is dealt with. It has nothing whatever to do with the current subject.