Evans, R (On the Application Of) v Basingstoke and Deane BC & Anor

A statutory time limit for planning enforcement is not, in principle, incompatible with the EIA Directive. Its compatibility falls within domestic procedural autonomy, subject to equivalence and effectiveness. A ten-year period gives a local planning authority ample time to remedy an unassessed EIA development. Individuals retain an effective route through representations and judicial review seeking a mandatory order. After the enforcement period expires, a discretionary discontinuance power cannot be converted into a duty merely to bypass the limitation period, although the power remains available if its statutory conditions are met.

The appellant sought judicial review of planning permission granted by Basingstoke and Deane Borough Council to Vitacress Salads Ltd for development at Lower Link Farm. Stadlen J dismissed the claim: [2013] EWHC 899 (Admin). On appeal, only the fourth ground was pursued. The material change of use was accepted to be EIA development which had not been screened under the EIA Directive before consent was granted.

The central issues were whether the ten-year enforcement limit in section 171 B(3) of the Town and Country Planning Act 1990 was incompatible with the Directive, whether the limit was ineffective on the particular facts, and whether the local planning authority could instead be compelled to make a discontinuance order under section 102.

Appeal dismissed. Lord Justice Sullivan gave the judgment, with Lord Justices Aikens and Patten agreeing.

1. The court rejected the submission that time limits for enforcement action were inherently incompatible with the EIA Directive. The Court of Justice decision in Commission v United Kingdom was understood as dismissing the action as inadmissible because the Commission had not challenged the time-limit aspect of the United Kingdom mechanism. The Advocate General’s contrary observations did not establish the appellant’s proposition.
2. Following the principles stated in Wells and supported by Denkavit, the detailed rules were matters for domestic procedural autonomy, subject to equivalence and effectiveness. Equivalence was undisputed because the ten-year period applied equally to EIA and non-EIA development.
3. The ten-year period satisfied effectiveness. It gave a local planning authority ample time to take enforcement action against development likely to have significant environmental effects. Individuals could ask the authority to act and, if it wrongly failed to do so, seek a mandatory order by judicial review. The court expressed no view on whether effectiveness should be assessed structurally or by reference to the individual claimant, because the answer was the same on either approach. On the facts, it was not excessively difficult for the appellant to challenge the breach, since relevant information had been publicly available for nearly seven years before the period expired.
4. Ardagh Glass and Prokopp concerned situations in which the enforcement period had not expired. A failure to enforce while enforcement remained available might breach the Directive, but those decisions did not establish that expiry of the statutory period itself was unlawful.
5. The section 102 issue did not arise. Legal certainty prevented the authority’s discretion to make a discontinuance order being converted into a duty simply to circumvent the expired enforcement period. The court nevertheless observed that section 102 remained available if the authority considered a discontinuance order expedient, including where the use had a significantly adverse environmental effect.

• Court of Appeal (Civil Division): In [2013] EWCA Civ 1635, the appeal was dismissed.
• High Court of Justice, Queen’s Bench Division: Stadlen J dismissed the judicial review claim in [2013] EWHC 899 (Admin).