Ardagh Glass Ltd v Chester City Council & Anor

In a complex development, the four-year enforcement period is determined by identifying the relevant operations. A holistic approach does not require every element in a planning application to be substantially completed before time begins to run for each distinct operation. The issue is one of fact and degree.

Planning authorities must properly consider the risk that components may obtain immunity from enforcement. Where that risk is real, failure to address it may be an error of law and justify mandatory enforcement action. Retrospective permission for EIA development is not automatically unlawful, but it must protect the preventive and participatory objectives of Directive 85/337. Regularisation should remain exceptional and must confer no improper advantage on the developer.

Ardagh Glass Ltd challenged the failure of Chester City Council and Ellesmere Port and Neston Borough Council to take enforcement action against the unlawfully constructed Quinn Glass works. It also sought to prevent retrospective planning permission for the development, which was EIA development.

The councils considered that the four-year period under section 171B of the Town and Country Planning Act 1990 would not begin until the whole integrated glass manufacturing, filling and distribution facility was substantially complete. They also considered a retrospective application supported by an environmental impact assessment. The court determined whether the councils had erred in their approach to enforcement and whether domestic and European law prohibited retrospective permission.

1. Enforcement period. The court held that the relevant operations must be identified from the facts and circumstances of the development. The holistic approach in Sage v Secretary of State [2003] 1 WLR 983 did not establish that every operation within a large and complex development had to be complete before any distinct component could acquire immunity. Distinct, physically and functionally connected elements may be substantially completed at different times. The issue remains one of fact and degree for the decision-maker.
2. The councils had treated the development as one totality and had not properly considered the real possibility that substantial components, including Furnace B and its ancillary works, might have become immune earlier. That was an error of law. The court considered the challenge timely, applying the flexible and commonsense approach in R (Hammerton) v LUL and others [2002] EWHC 2307 (Admin).
3. The court therefore granted permission and ordered the councils and their successors to issue enforcement notices within 14 days. The notices had to require removal of the buildings and works and cessation of the glass manufacturing, filling and distribution activities. This necessary direction limited the councils’ discretion under section 173 of the Town and Country Planning Act 1990.
4. EIA and retrospective permission. The Commission v Ireland C-215/06 did not require the removal of every development undertaken without a prior EIA. The Irish retention-permission regime differed materially from the English statutory scheme. Retrospective permission could be lawful where the competent authorities protected the Directive’s preventive objectives, ensured genuine public participation, prevented any advantage from the unlawful commencement, and treated regularisation as exceptional. The court relied on Berkeley v Secretary of State [2001] 2 AC 603 concerning the procedural and participatory nature of an EIA.
5. The existing English enforcement and appeal procedures were capable of securing compliance with Directive 85/337 once an enforcement notice was issued. The court declined the requested declaration that retrospective permission was impossible. It did not finally decide whether inaction allowing immunity to arise would itself constitute development consent, because enforcement notices were ordered.

This was a first-instance judicial review in the Administrative Court. The judgment does not state any appeal from this decision.