Evans, R (on the application of) v Basingstoke And Deane Borough Council

A planning condition may regulate land outside the application site, including an existing use, if it fairly and reasonably relates to the permitted development and is not unreasonable. Whether that connection exists is principally a matter for the planning decision-maker.

The adequacy of an environmental statement, and of further information requested under regulation 19, is ordinarily for the local planning authority, subject to review on Wednesbury principles. An environmental statement may remain legally sufficient despite deficiencies, provided the authority considers the environmental information as a whole.

A ten-year planning-enforcement limitation period is a procedural rule compatible with the environmental impact assessment regime where it provides a reasonable balance between effectiveness and legal certainty.

The claimant sought judicial review of the Council’s decision to grant Vitacress Salads Limited planning permission for extensions and alterations to an established watercress-growing, salad-processing and packing site in an Area of Outstanding Natural Beauty.

The challenge alleged that the Council failed to consider imposing conditions controlling production in existing buildings, failed to assess indirect and cumulative environmental effects, and unlawfully treated the established mixed agricultural and industrial use as immune from enforcement despite the absence of an earlier environmental impact assessment.

The claimant also sought declarations and mandatory relief requiring remedial action in relation to the existing use.

1. Planning conditions. Sections 70(1)(a) and 72(1)(a) of the Town and Country Planning Act 1990 confer a wide power to regulate land under the applicant’s control, whether or not it is the application land. The condition must nevertheless fairly and reasonably relate to the permitted development and must not be so unreasonable that no reasonable planning authority could impose it. The question is primarily one for the planning authority.
2. The officers’ report, read as a whole, accurately stated that legal test. It explained the competing evidence about whether the proposed extensions could increase production in the existing packhouse. The Committee was entitled to accept the officers’ planning judgment that the possibility of increased production was insufficiently connected with the proposed development to justify a production-limiting condition. The report did not materially mislead the Committee: Oxton Farms was applied.
3. Environmental assessment. Under regulations 2(1), 3(2) and 19(1) of the Town and Country Planning (EIA) Regulations 1999, it was for the Council, subject to Wednesbury review, to decide whether the ES was an environmental statement and whether the Addendum constituted further information. Deficiencies did not deprive the Council of jurisdiction unless the document could not reasonably be described as an environmental statement. The Council considered the ES, Addendum, consultation responses and statutory consultees’ views.
4. The precautionary test in Waddenzee concerned whether an assessment was required at all. It did not replace the domestic review standard governing the adequacy or content of an environmental statement. The Council was entitled to accept the applicant’s evidence that the development would not increase production, discharges or traffic, while considering the possibility of indirect and cumulative effects.
5. Existing use and enforcement. The change to a mixed agricultural and predominantly industrial use occurred more than ten years before the proceedings. Section 171B(3) of the 1990 Act was a procedural limitation rule. Applying the principles of equivalence, effectiveness and legal certainty, it was not incompatible with article 2(1) of Directive 85/337/EEC and did not require disapplication under Simmenthal. The Council therefore did not act unlawfully in treating the use as immune from enforcement.
6. A mandatory order requiring a discontinuance order under section 102 of the 1990 Act would in any event have been premature. The Council had not been asked to determine whether such a discretionary order should be made, and the statutory considerations and potential compensation consequences had not been addressed.

The claim for judicial review was dismissed.

First-instance judicial review proceedings in the Administrative Court. The claim was dismissed.