The claimant company (X) sought (i) the grant of a mandatory order that enforcement action be taken by the defendant local planning authorities against the interested party (Q) before April 2009; (ii) an order prohibiting the grant or the making of a resolution to grant planning permission, alternatively a declaratory order that it would be unlawful for the local authorities to grant planning permission for Q’s proposed development. Q, a major glass manufacturer, had commenced development of a large glass container factory without planning permission. Applications for permission were made when the plant was already under construction. The secretary of state called them in for determination, by which time much of the plant was already functioning. Following an inquiry, the secretary of state accepted the inspector’s recommendation that planning permission should not be granted, and permission was refused. Thereafter, Q submitted a retrospective planning application, accompanied by an environmental impact statement, to the local authorities. The secretary of state used her power under Directive 85/337 to direct the local authorities not to grant planning permission without express authority. It was common ground between the parties that Q’s development was currently unlawful development and that if effective enforcement action was to be taken against Q the enforcement notices had to be served within four years of the substantial completion of the development. The issues for determination concerned the timing of enforcement action and whether the local authorities or the secretary of state might lawfully grant planning permission for Q’s development. X contended that the time limit for serving enforcement notices was April 2009 and that as the local authorities were unwilling to issue such notices, they should be ordered to do so. The local authorities submitted that, on the proper construction of the law as to what amounted to “substantial completion” of the development, they had until November 2009 to serve the notices. They argued that it was for them to decide whether and when it was expedient to take enforcement action against Q, and that it could not be said that their decision not to take immediate action was beyond the range of choices open to them on the facts. X further contended that to grant retrospective planning permission would undermine the preventive objectives of the Directive, of which the principal one was that effects on the environment should be taken into account at the earliest possible stage and before works were carried out. X, in reliance upon Commission of the European Communities v Ireland (C-215/06)  Env. L.R. D3 ECJ (2nd Chamber), submitted that to grant retrospective permission would be unlawful. The local authorities and Q contended that retrospective planning permission might properly be granted as, on its true interpretation, Community law did not preclude the regularisation of existing environmental impact assessment development in exceptional cases.
Judgment for claimant in part. (1) It would be a betrayal by the local authorities of their responsibilities and a disgrace upon the proper planning of this country were Q’s development to achieve immunity because enforcement action was not taken in time. The advantage of taking enforcement action by issuing a notice was that it would at once prevent immunity arising for at least another four years and would avoid the need for certainty about the date of substantial completion of Q’s plant. The local authorities had erred in basing their consideration of the timing of enforcement action upon the proposition that, in respect of a very large and complex development, made up of several distinct, though physically and functionally connected, elements, substantial completion could not be achieved for any part of it until the totality of all the operations were complete, Sage v Secretary of State for the Environment, Transport and the Regions  UKHL 22,  1 W.L.R. 983 considered. The local authorities had, therefore, made errors of law in their consideration of whether it was expedient to issue an enforcement notice on Q’s development. The court, accordingly, made a mandatory order to the local authorities to issue within 14 days of the judgment an enforcement notice in respect of Q’s unlawful development requiring the removal of the buildings and works, and cessation of Q’s activities. (2) There was a distinction to be drawn between the Irish statutory provisions and procedures that were the subject of Commission v Ireland and those in England, Commission v Ireland distinguished. Retrospective planning permission could lawfully be granted so long as the competent authorities paid careful regard to the need to protect the objectives of the Directive. Enforcement procedures under English law were well able to take into account and protect those fundamental objectives. Permission would not be granted unless the secretary of state was satisfied that a satisfactory environmental impact assessment had been undertaken. In order to uphold the Directive, the secretary of state could and should consider whether granting permission would give a developer an advantage he ought to be denied, whether the public could be given an equal opportunity to form and advance their views, and whether the circumstances could be said to be exceptional. The court, accordingly, declined to make a declaratory order concerning the grant of permission.
Judge: Judge Mole QC
Solicitor: For the claimant: DLA Piper UK LLP. For the first defendant: Denton Wilde Sapte LLP. For the second defendant: Hammonds LLP. For the interested party: CMS Cameron McKenna LLP.