Baker, R (on the application of) v Bath and North East Somerset Council

EU law does not invariably require a planning authority immediately to issue an enforcement notice against unauthorised development requiring environmental impact assessment. Retrospective planning permission may be considered in exceptional circumstances, provided that the environmental assessment regime is respected and the public is given a proper opportunity to participate.

A planning authority may allow a reasonable period for the developer to provide a compliant environmental statement and may determine the planning applications before taking enforcement action. The authority must assess whether delay would undermine the purposes of the environmental impact assessment regime. A decision to allow further time is lawful where it is a fair, reasonable and proportionate response to a real prospect that adequate environmental information will be provided.

The claimant sought judicial review of Bath and North East Somerset Council’s decision not to take immediate enforcement action against a waste composting site operated by Hinton Organics Ltd. The site had continued operating after the expiry or quashing of relevant planning permissions.

Following a screening direction by the Secretary of State, the Council treated three live planning applications as relating to environmental impact assessment development. Hinton’s environmental information was initially inadequate. On 13 February 2013 the Council decided to give Hinton a further three months to provide a compliant environmental statement and deferred the enforcement issue.

The central questions were whether EU law required immediate enforcement action and whether the Council’s later decision to allow further time was lawful.

1. The claim was dismissed. Permission to apply for judicial review was formally granted, but the substantive claim failed.
2. Article 2(1) of Directive 2011/92 EU required the competent authorities to take the general or particular measures necessary to ensure that projects likely to have significant environmental effects were assessed. The relevant authorities included measures such as revocation or suspension of an existing consent where necessary.
3. Those principles did not impose an absolute duty to issue an enforcement notice immediately. EU law permitted retrospective planning permission for environmental impact assessment development in exceptional circumstances, subject to safeguards identified in R(Ardagh Glass) v Chester City Council [2010] EWCA 172. The decision-maker had to consider whether retrospective permission would confer an advantage that should be denied and whether the public would have an equal opportunity to form and advance its views.
4. The Council was therefore entitled to give Hinton a reasonable period to produce an environmental statement and to consider the planning applications substantively. Immediate enforcement would not necessarily have ended the unauthorised operation, since Hinton could appeal and seek retrospective permission under section 174(2)(a) of the Town and Country Planning Act 1990, with the environmental information considered under section 177 and regulation 25 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999.
5. By February 2013 Hinton had had about 14 months to provide adequate information, and its earlier submissions had been significantly deficient. Those matters supported refusal and enforcement. However, evidence that Hinton had appointed a competent consultant and was likely to provide the missing information within a short, reasonable period justified the Council’s decision to allow a further three months.
6. The Council’s decision was fair, reasonable and proportionate and was not inconsistent with the requirements of EU law. Another authority might reasonably have refused the applications and issued an enforcement notice, but that did not make this Council’s decision unlawful.

The judgment was a first-instance decision of the High Court (Administrative Court). The judgment refers to an earlier unsuccessful judicial review concerning the site, but gives no citation for that decision.