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

Community law does not impose an absolute prohibition on retrospective planning permission for unauthorised EIA development. Regularisation may be permitted in exceptional circumstances, provided it does not enable applicants to circumvent the environmental impact assessment requirements or gain an improper advantage. The decision-maker must protect the Directive’s objectives by ensuring that the public has an equivalent opportunity to participate, that pre-emptive development is not rewarded, and that retention occurs only where the circumstances justify it. The possibility of regularisation is distinct from the exemption of a project under Article 2(3) of Directive 85/337. An enforcement notice may be sufficient; a stop notice is not invariably required. Existing statutory discretions can be exercised in conformity with community law without amending legislation.

Ardagh Glass Ltd challenged the lawfulness of retrospective planning permission for an unauthorised glassworks that constituted EIA development. The Administrative Court judge decided issue 1 in the claimant’s favour and required an enforcement notice, but dismissed issue 2, holding that retrospective permission could lawfully be granted if the Directive’s objectives were respected. The glassworks operator’s appeal against the issue 1 decision was dismissed with consent.

On appeal, Ardagh argued that community law prohibited retrospective permission, or permitted it only under Article 2(3) of Directive 85/337, and that a stop notice was mandatory. The central questions were whether regularisation was legally possible and what safeguards community law required.

1. Appeal dismissed. The court upheld the rejection of the absolute proposition that retrospective planning permission for EIA development is unlawful. A blanket prohibition would be disproportionate because breaches and environmental consequences vary widely. In some cases removal may be appropriate; in others, retention may better protect environmental objectives.
2. The court treated the ECJ’s decision in Commission v Ireland, case C-125-06, as recognising that national law may permit regularisation in exceptional circumstances, provided the process does not allow circumvention of community rules or dispense with their application. The exception must remain exceptional.
3. Article 2(3) of Directive 85/337 was not the relevant route. It concerns exemption of a specific project from the Directive’s requirements, whereas this case concerned regularisation of a project that remained subject to those requirements. The failure to comply with Article 2(3)(a)–(c) therefore did not determine the legality of regularisation.
4. The guidance given by the judge was endorsed. A decision-maker considering retrospective permission should ensure that the developer gains no improper advantage, that the public has an equal opportunity to form and advance its views, and that the circumstances are exceptional. The statutory discretions under sections 73A and 177 of the Town and Country Planning Act 1990 could be exercised in conformity with community law. A legislative amendment was not essential.
5. An enforcement notice under section 172 was sufficient to secure removal if retrospective permission was refused. The authority was not bound to issue a stop notice, although injunctive relief could be available in an appropriate case.
6. The court considered the position acte clair and declined the proposed reference to the ECJ. The argument based on Articles 9(3) and 9(4) of the Aarhus Convention concerned access to justice and effective remedies, not the substantive handling of the planning case, and did not assist.
7. The lawfulness of the permissions subsequently granted was left for determination in the pending judicial review proceedings.

• Court of Appeal (Civil Division): Appeal dismissed. The court upheld the Administrative Court’s dismissal of the challenge to the possibility of retrospective planning permission and left the lawfulness of the later permissions to the pending judicial review proceedings.
• Administrative Court: HHJ Mole QC dismissed issue 2, but decided issue 1 in favour of the appellant and required an enforcement notice to be issued.