Before: MR JUSTICE WYN WILLIAMS Between:

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1 Neutral Citation Number: [2014] EWHC 836 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Case No: CO/1070/2013 Cardiff Civil Justice Centre 2 Park Street, Cardiff, CF101ET Before: Date: 27/03/2014 MR JUSTICE WYN WILLIAMS Between: PAULINE ELLAWAY Claimant - and CARDIFF COUNTY COUNCIL Defendant - and (1) VIRIDOR WASTE MANAGEMENT LTD (2) PGM ESTATES LTD (3) THE WELSH MINISTERS (4) ENVIRONMENT AGENCY FOR WALES (5) COUNTRYSIDE COUNCIL FOR WALES Interested Parties Alex Goodman (instructed by Richard Buxton) for the Claimant Simon Bird QC (instructed by Legal Services Dept) for the Defendant David Elvin QC (instructed by Bevan Brittan LLP) for the First Interested Party The other Interested Parties did not appear and were not represented Hearing dates: 17 December Approved Judgment

2 Mr Justice Wyn Williams: Introduction 1. The First Defendant is the local planning authority for the city of Cardiff. On 29 June 2010 it granted planning permission to the First Interested Party (hereinafter referred to as Viridor ) for the erection of an energy from waste facility to include a combined heat and power plant, pre-treatment/recycling facility, incinerator bottom ash recycling and ancillary offices upon an area of land (hereinafter known as the site ) at Trident Park, Glass Avenue, off Ocean Way in the city of Cardiff. The permission specified that the development was to be carried out on site in accordance with the application and accompanying plans subject to compliance with the conditions specified hereunder. Twenty five conditions were then listed. Conditions 2, 3, 4, 7, 10, 11, 12, 13, 14, 15, 17, 19, 20, 21 and 24 were pre-commencement conditions i.e. they required that compliance with the conditions should take place before any development was commenced on the site. Condition 1 provided that the permitted development should begin before the expiration of five years from the date of [the] planning permission. 2. The grant of planning permission had been opposed by the Claimant and an organisation known as Cardiff Against the Incinerator (hereinafter referred to as CATI ). However, neither the Claimant nor CATI sought to impugn the grant of planning permission following its grant. 3. On 20 July 2012 Viridor commenced development on the site. It is not disputed that by then it had applied for the discharge of all the pre-commencement conditions and that the Defendant had purported to discharge all but one of those conditions. In the months that followed 20 July 2012 Viridor continued to undertake works on site; in the same period CATI made representations to the Defendant to the effect that Viridor was acting unlawfully and that appropriate enforcement action should be taken. 4. On 13 February 2013 the Planning Committee of the Defendant resolved against taking enforcement action; it also resolved to discharge the pre-commencement conditions. The Committee took that decision on the basis of a detailed report prepared by planning officers (hereinafter referred to as the officer s report ) - see Trial Bundle Volume 2, pages 1175 to In these proceedings the Claimant asserts that the decisions taken by the Defendant on 13 February 2013 were unlawful and she seeks quashing orders in respect of them. The relevant facts in more detail 5. Viridor is a commercial organisation which engages in waste management. In or about 2007 it concluded that the site was suitable for the development of an energy from waste facility. In November 2008 Viridor submitted a planning application for such a development but in August 2009 the Defendant refused the application. 6. Viridor appealed against that refusal of planning permission. However, in February 2010 (before the appeal had been determined) it submitted a revised planning application to the Defendant. It was this application which was approved by the Defendant on 29 June Upon receipt of the planning permission Viridor withdrew its appeal against the earlier refusal of permission.

3 7. Over the course of two years, approximately, following the grant of planning permission, Viridor applied for the discharge of the pre-commencement conditions. A detailed chronology of the steps which it took is to be found in the officer s report for the meeting of the Defendant s Planning Committee on 13 February Between 19 December 2011 and 4 July 2012 the Defendant issued decision letters discharging or partially discharging all of the pre-commencement conditions except condition 4. The Defendant s summary grounds for resisting the claim contains a table in which the dates of the various applications for discharge of conditions are specified together with the date when the Defendant purported to discharge the particular condition (see Trial Bundle Volume 1 page 175). I do not set out the dates in this judgment since nothing turns upon them. 8. It is common ground that the Defendant acted unlawfully by discharging the conditions. In summary, the applications for discharge were subsequent applications for the purposes of Regulation 2 of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (hereinafter referred to as the 1999 Regulations ). Before approving discharge of the conditions the Defendant was obliged to comply with and/or ensure compliance with Regulations 3(2) and 19 together with Schedule 4 of the 1999 Regulations. That it had not done prior to its approval of discharge of the conditions. 9. On 17 July 2012 the Defendant was advised that its purported discharge of the conditions was unlawful. On the same date the Defendant notified Viridor that the conditions had not been discharged validly. By that date, however, Viridor had entered into a contract or contracts for the carrying out of the construction work necessary for the development. This construction work commenced on 20 July 2012 and it has continued on site since that date. 10. Even before the commencement of the work, CATI had made representations to the Defendant that it should take enforcement action in the event that Viridor commenced the construction work before the pre-commencement conditions had been discharged lawfully. On 19 July 2012, CATI wrote to the Defendant saying: The Council has an obligation to ensure that Viridor meet the statutory requirements before they commence work. Viridor has notified you they intend to commence development on 20 July, yet all the preconditions have not been met and cannot be met by that date. We therefore require you to take strong and appropriate action immediately, by instructing Viridor not to commence development on 20 July and not until the preconditions have been fulfilled under the EIA planning law. 11. On 24 July 2012 the Defendant caused a notice to appear in the Western Mail, the national newspaper of Wales. The notice was expressed to be a notice pursuant to Regulation 19 of the 1999 Regulations. A number of notices in identical form were displayed in the locality of the site. The notice specified the proposed development, its location and the identity of the developer and continued:

4 I give notice that the above applicant has made the following subsequent applications to Cardiff County Council as the relevant planning authority in respect of the discharge of the following conditions in order to carry out the above development for which planning was granted on 29 June 2010, which is accompanied by an Environmental Statement and which was granted subject to conditions after the completion of the section 106 agreement. There then followed a table in which all the pre-commencement conditions were set out together with the dates of the applications for discharge. The notice continued: Further information is available in relation to the Environmental Statement which has already been provided. You may inspect copies of the subsequent application, the plans, the Environment Statement, the further information or any other documents submitted with the subsequent applications ( the documents ) at the Council s offices at Development Management, City Development, City Hall, Cardiff, CF10 3ND during normal office hours Please quote the application reference number located at the top of the letter to reception staff. You will not necessarily be able to see a planning officer without an appointment... Please write to me within 21 days of the date of this letter if you have any comments about these subsequent applications that you wish the council to take into account before a decision is made. Please note that your letter will be open to public inspection. Due to time and resource constraints, planning officers are not able to acknowledge receipt of correspondence or to respond in writing to any comments or queries made. 12. The applications for discharge were due to be considered by the Defendant s Planning Committee on 15 August By that date a number of letters of objection had been received from members of the public. On 14 August 2012 CATI sent detailed representations to the Defendant opposing discharge of the conditions. A report was prepared by officers for consideration by the Committee. In the event the applications for discharge were not considered by the Planning Committee on 15 August Officers concluded that consideration of the applications should be postponed while further investigations were undertaken. 13. In the months immediately following, there were a number of exchanges between CATI and the Defendant and the Defendant and other parties, including Viridor. As a consequence of representations received about the risk of flooding both at the site and in its vicinity the Defendant commissioned a report from Atkins Ltd which it received on or about 10 October 2012 together with a detailed covering letter. On 23

5 November 2012 SLR Consulting Limited, on behalf of Viridor, wrote a response in respect of a number of queries which had been raised by the Defendant in a letter of 2 November A number of the queries related to issues raised in the report obtained from Atkins Ltd. Under cover of the letter of 23 November SLR Consulting Ltd provided a document entitled Non-Technical Summary which, as its title suggests, was a summary of the details provided in support of the various applications for discharge expressed in language readily to be understood by persons without technical qualifications. 14. On 5 December 2012, the Defendant caused a second notice to be published in the Western Mail. This notice, too, identified the applicant, the proposed development and the location of the development together with the applications for discharge of the pre-commencement conditions, The notice continued: Further information (including a non-technical summary of the subsequent applications) or any other information is available in relation to the Environmental Statement which has already been provided. The notice then specified how members of the public could access this information before continuing: Anyone who wishes to make representations about the further information or any other information should write to the Cardiff County Council Identical notices were posted in the immediate vicinity of the site and notification letters were also sent to neighbouring occupiers. As had occurred following the consultation exercise in July a number of letters of objection were received. 16. The Claimant s solicitors had first written to the Defendant on behalf of the Claimant and CATI on 15 November In that letter it had invited the Defendant to issue a stop notice to prevent the First Interested Party from continuing with the development. This letter was followed by a pre-action protocol letter dated 7 December On 13 December 2012 the Defendant replied: I can confirm That the council is currently holding a 21 day consultation period in accordance with Regulation 19 of the Town and Country Planning (Environmental Impact Assessment) (Amendment) (Regulations 1999) as amended. As the notice states further information in respect of the planning permission has been received in the form of a non-technical summary and the Dwr Cymru letter dated 19 September The Notice is clear that any person wishing to inspect the further information may do so in the manner referred to in

6 the notice. I understand from your letter that members of CATI visited the Council s offices to view the further information. The further information referred to above is contained on the planning file and is as quoted in your letter as being reported on the file by the members of CATI. If any person wishes to make representations on this further information they may do so to the Council at the address advertised in the Notice. After the consultation period has been closed the Council will proceed to make a determination in respect of the subsequent applications. Responses to the consultation exercises on the subsequent applications will be taken into consideration when making this determination. 17. The Defendant s Planning Committee met on 9 January It had before it a report from officers which recommended that it would not be appropriate to take enforcement action at that time. The final two paragraphs of the report were as follows: 3.8 After consideration officers are of the opinion that the required technical information has been submitted to establish that there is no immediate threat that would require immediate enforcement action. The matter will be kept under review and if it is considered that action is necessary the matter can be brought back to the committee for a further decision. In the meantime officers aim to report the Discharge of conditions application to the 13 th February 201[3] meeting of the Planning committee. RECOMMENDATION The Council has taken into account the advice given in paragraph 23 of Tan 9 and considers that in the light of the continuing planning process and the pending report on 13 February 2013, it would not be appropriate to take enforcement action at this time. In the event that consents to the subsequent applications are not granted by the Council this recommendation will need to be reviewed at that stage The officer s report produced for the Planning Committee which was held on 13 February 2013 was very detailed; it was accompanied by five appendices (see Trial Bundle Volume 2 pages 1208 to 1258). Appendix 5 (pages 1254 to 1258) was in the form of a table. It consisted of four columns In column 1 each pre-commencement condition was identified; in column 2 the author of the table assessed whether or not there had been a breach of each of the conditions; column 3 was an assessment of the consequences of any breach and column 4 expressed a conclusion about whether there was a need to pursue enforcement action. The conclusion reached in column 4 in

7 respect of each of the pre-commencement conditions was that it was not expedient to take enforcement action in respect of any of the works which had been undertaken on site. 19. The concluding section of the body of the report recommended that the applications for the discharge of the pre-commencement conditions should be approved and that it would not be expedient to take enforcement action in respect of any of the construction work undertaken on site. The reasoning which supported this conclusion was set out at paragraphs to 7.72 of the report. Paragraphs 7.66 to 7.71 expressed legal conclusions which are at the heart of the issues to be determined in this claim. They read: 7.66 It should be noted that the Council s decision taken on 9 January 2013 not to take any enforcement action pending the decisions on the current applications has been challenged by a local objector who has applied for permission to make a claim for judicial review of that decision and a claimed continuing failure to take enforcement action. The relief sought includes an order that the Council reconsider enforcement action within a short space of time and/or an order directing the Council to issue an enforcement notice. It was always the intention that the issue of whether or not to take enforcement action should be reconsidered at this meeting and therefore the claim was academic before it was launched. The claimant s solicitors have to date not accepted that. They continue to argue that if the Committee discharge the conditions it would still not regularise the development which has been carried out which is unlawful by reason (amongst other things) of a breach of the EIA Directive and the EIA Regulations. The Council has sought Counsel s advice on this issue and he disagrees He advises that it is well established that exceptionally, planning permission may be lawfully commenced prior where it has been begun before the approval of details required by pre-commencement conditions provided that the developer has applied for approval before the works undertaken, the works undertaken comply with the details and those details are subsequently approved by the local planning authority He further advises that it is now equally well established that the principle that development cannot lawfully be begun by works carried out in breach of condition attached to the relevant planning permission is not to be applied inflexibly so as to produce results which defy commonsense and serve no useful planning purpose. In consequence, works undertaken in breach of planning control may be effective to commence development where it would be unlawful in accordance with public law principles for a local planning authority to take enforcement action to prevent development proceeding.

8 7.69 The approval of the subsequent applications is therefore capable of validating the implementation of the permission. There is no need, as a matter of principle, for any retrospective application to be made. That position is not affected by the status of the development as an EIA development because there is no necessary inconsistency between the EC law and retrospective validation of development Where as here, the Planning Permission was supported by an Environmental Statement, Viridor submitted all the substantive information required by the Defendant in order to discharge the conditions prior to commencement, the statutory procedures required by the EIA Regulations have been complied with albeit belatedly and there has been no substantive circumvention of the EIA Regulations, there can be no in principle objection to the validation of the commencement of development It follows that if the Council decides to approve the subsequent applications, then the retrospective validation of commencement will have been preceded by a full and proper EIA and a full and genuine opportunity for the public to understand the subsequent applications and to express their views on them which have been taken into account. 20. The Committee accepted the officers recommendations. Notice of discharge of the conditions was issued on 25 February 2013 see Trial Bundle Volume 2 pages 1279 to In its detailed grounds for resisting the claim the Defendant asserts (i) that the works carried out on site prior to 13 February 2013 were carried out strictly in accordance with the details supporting the applications for discharge which had all been submitted prior to 20 July 2012 and (ii) much of the detail required to be submitted pursuant to the pre-commencement conditions related to work which had yet to be carried as of February I have not been provided with precise evidence as to the work which had been undertaken on site by 13 February In his skeleton argument Mr Bird QC characterises the work undertaken as ground works, foundation works and the construction of the subterranean waste bunker. It has not been suggested that this description is inaccurate. In a witness statement dated 5 July 2013 made by Mr Ian John, Viridor s Head of Planning, the construction work undertaken up to that time is described in some detail. That statement is not inconsistent with Mr Bird s description. In a subsequent statement dated 15 October 2013 Mr Robert Palser, Viridor s construction manager, describes the work undertaken as at the date of his witness statement as follows: the construction of the waste bunker that will be used for the storage of the waste was commenced in July Construction work has included piling foundations (in the form of a pile secant wall and associated load bearing piles), all the

9 excavation works required for the waste bunker and construction of the floor slab, walls and splays. The waste bunker was completed in a week commencing 10 June the piling works for the foundations for all of the remaining buildings at the Site using the continuous flight auger method began in September In total, 1761 piles have been installed and the foundation work was completed in the week commencing 18 February construction of the process floor slab for the boiler and flue gas treatment plant was started in December 2012 and completed in March The boilers, waste chutes and combustion grate system have since been installed and installation of the Flue Gas treatment equipment commenced in September 2013 and is due for completion in December the construction of the turbine hall and floor slab, Hopper and firing floors; and the administration block building was started in April The administration block and turbine halls are due to be completed during February construction of the Air Cooled Condenser slab was commenced in the week commencing 30 September 2013 and is due to be completed in November It is worth noting that the evidence served by the Claimant does not contradict anything said by Mr Bird QC, Mr John or Mr Palser as to the nature and extent of the construction work undertaken on site. Indeed, it may well be that the evidence of Mr Prosser positively supports it. I should also mention that in October 2012 the Defendant s officers made a visit to the site thereby giving themselves ample opportunity to assess the nature and extent of the construction work which had been and was being undertaken. Relevant legal framework (i). Council Directive 85/337/EEC (as amended) 24. Article 1 of this Directive specifies that the Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment. Article 2(1) provides: Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4. Article 4 provides that the projects listed in Annex 1 of the Directive shall be made subject to an environmental impact assessment. It is common ground that the project

10 for which planning permission was granted on 29 June 2010 was a project within Annex 1 of the Directive. (ii). The 1999 Regulations 25. The Directive was transposed into the law of England and Wales by the 1999 Regulations (although the Regulations were applicable in Wales only at the time relevant to these proceedings). Regulation 3 provides: (1). This Regulation applies a. to every application for planning permission for EIA development received by the authority with whom it is lodged on or after the commencement of these Regulations; b. to every application for planning permission for EIA development lodged by an authority pursuant to Regulation 3 or 4 (applications for planning permission) of the General Regulations on or after that date; c. to every subsequent application in respect of EIA development received by the authority with whom it is lodged on or after the commencement of these Regulations but which was not determined by 6 October 2008; d. to every subsequent application in respect of EIA development lodged by an authority pursuant to Regulation 11 of the General Regulations on or after the commencement of these Regulations but which was not determined by 6 October 2008; and for the purposes of this paragraph, the date of receipt of an application by an authority shall be determined in accordance with paragraph(3) of Article 20 (time periods for decision) of the Order. (2). The relevant planning authority or the Secretary of State or an inspector shall not grant planning permission or subsequent consent pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so. 26. EIA development is defined in the Regulations to mean development which is either development within Schedule 1 of the Regulations or development within Schedule 2 which is likely to have significant effects on the environment by virtue of factors such as its nature, size or location. The phrase subsequent application means: An application for approval of a matter where the approval

11 a. Is required by or under a condition to which a planning permission is subject; b. Must be obtained before all or part of the development permitted by the planning permission may be begun; 27. There is no dispute but that the planning application which preceded the grant of planning permission on 29 June 2010 was an application for planning permission for EIA development and that the Defendant took into account the relevant environmental information before it granted consent for the development. Further, it is common ground that the applications for the discharge of the pre-commencement conditions were subsequent applications. 28. So far as is material Regulation 19 of the 1999 Regulations provides: (1) Where the relevant planning authority, the Secretary of State or an inspector is dealing with an application or appeal in relation to which the applicant or appellant has submitted a statement which he refers to as an environmental statement for the purposes of these Regulations, and is of the opinion that the statement should contain additional information in order to be an environmental statement, they or he shall notify the applicant or appellant in writing accordingly, and the applicant or appellant shall provide that additional information; and such information provided by the applicant or appellant is referred to in these Regulations as further information. (2) Paragraph (3) to (9) shall apply in relation to further information (3) The recipient of further information pursuant to paragraph (1) or any other information shall publish in a local newspaper circulating in the locality in which the land is situated a notice stating a. the name of the applicant for planning permission or subsequent consent or the appellant (as the case may be) and the name and address of the relevant planning authority; b. the date on which the application was made and, if it be the case, that it has been referred to the Secretary of State for determination or is the subject of an appeal to him; bb. In the case of a subsequent application, sufficient information to enable the planning permission for the development to be identified; c. the address or location and the nature of the proposed development;

12 d. that further information or any other information is available in relation to an environmental statement which has already been provided; e. That a copy of the further information or any other information and of any statement referred to as an environmental statement for the purpose of these Regulations which relates to any planning permission or subsequent application may be inspected by members of the public at all reasonable hours; f. An address in the locality in which the land is situated at which the further information or any other information may be inspected and the latest date on which it will be available for inspection (being a date not less than 21 days later than the date on which the notice is published); g. An address (whether or not the same as that given pursuant to subparagraph f in the locality in which the land is situated and which copies of the further information or any other information may be obtained; h. That copies may be obtained there so long as stocks last; i. If a charge is to be made for a copy, the amount of the charge; j. That any person wishing to make representations about the further information or any other information shall make them in writing, before the date specified in accordance with sub-paragraph f, to the relevant planning authority, the Secretary of State or the inspector (as the case may be); k. The address to which representations should be sent. 29. The expression any other information within Regulation 19 is defined by Regulation 2 to mean any other substantive information relating to the environmental statement and provided by the applicant or appellant as the case may be. 30. I have quoted extensively from Regulation 19 since Mr Goodman was disposed to argue that the notices which the Defendant caused to be published in the Western Mail and in the vicinity of the site in July and December 2012 lacked clarity. He came close to arguing that they did not conform to Regulation 19 of the Regulations although I did not understand him to go quite that far. To the extent that this is a significant point I will return to it later in this judgment. 31. It is now common ground that Schedule 4 of the 1999 Regulations required Viridor to provide a non technical summary of the information supporting the applications for discharge of the pre-commencement conditions. No such summary was provided until it was sent under cover of the letter of 22 November That means that it was not in existence at the time of the consultation exercise in July/August 2012 but that it was available for inspection by the time of the consultation exercise which occurred in December Indeed, it was specifically mentioned in the notices

13 which the Defendant caused to be published in the Western Mail and in the vicinity of the site. see paragraph 14 above. (iii) Whitley and Sons v Secretary of State for Wales and Clwyd CC 64 P&CR It is important to understand the facts of this case. On 15 November 1973 the Secretary of State for Wales granted planning permission for the extraction of silica, stone and sand from a site at Moel Findeg near Mold in Clwyd. The permission was subject to a number of conditions which included (i) a condition that the developer would not commence work on site until a scheme for carrying out the works had been agreed with the local planning authority or, failing such agreement, with the Secretary of State and (ii) a condition that the development should be commenced on or before 30 November A proposed scheme for carrying out the works was submitted to the local planning authority but rejected by the authority on 26 October Immediately thereafter the developer contacted the Secretary of State seeking approval of the scheme but no scheme was agreed between the planning authority and the developer or the Secretary of State and the developer prior to 30 November Notwithstanding the failure to agree a scheme, the developer carried out mining operations before 30 November 1978; it then ceased operations on 8 December Almost four years later, on 10 May 1982, the Secretary of State approved a scheme for carrying out the works. At the same time he stated, expressly, that he was not determining whether or not the planning permission had been implemented validly by the carrying out of mining works in November and December On 5 September 1983 the developer carried out work in accordance with the approved scheme. On 2 December the local planning authority served an enforcement notice alleging that the work carried out in September was a breach of planning control. No notice was served in respect of the work which had been undertaken in November and December 1978 as the four year time limit for issuing an enforcement notice had passed by. In proceedings brought by the successor in title of the developer the validity of the enforcement notice was challenged. Sir Frank Layfield QC, sitting as a Deputy High Court Judge, quashed the notice. He held that the planning permission granted in 1973 had been implemented validly by the carrying out of development in November and December Clwyd CC appealed against his ruling but the appeal was dismissed. 33. In the Court of Appeal, Woolf LJ (as he then was) formulated what has become known as the Whitley principle. He said: As I understand the effect of the authorities to which I am about to refer, it is only necessary to ask the single question; are the operations (in other situations the question would refer to the development) permitted by the planning permission read together with its conditions? The permission is controlled by and subject to the conditions. If the operations contravene the conditions they cannot be properly described as commencing the development authorised by the permission. If they do not comply with the permission they constitute a breach of planning control and for planning purposes will be unauthorised and thus unlawful. This is the principle which has now been clearly established by the authorities.

14 Despite formulating that general principle, Woolf LJ acknowledged the possibility of exceptions. In Whitley, the developer had sought approval for the scheme of works before the expiry of the five year time limit, had carried out the work in November and December 1978 strictly in accordance with that scheme and had obtained approval for the scheme before the enforcement notice had been served. On that factual basis, Woolf LJ (with whom the other members of the court agreed) determined that the general principle should not apply. 34. The Whitley principle and the scope of the exceptions thereto have been considered in a number of cases. Most recently in the Court of Appeal the principle and exceptions have been considered in Greyfort Properties Limited v Secretary of State for Communities and Local Government and another [2011] EWCA Civ 908. In that case the appellant was the owner of land in Torquay which was the subject of a planning permission granted in 1974 for the development of 19 flats. The appellant contended that access work carried out in January 1978 amounted to commencement of the development and that in consequence the planning permission remained extant. An inspector held that the work had been carried out in breach of a condition of the planning permission and could not, therefore, amount to commencement of the development authorised by the permission. The inspector s decision turned upon the application the Whitley principle and its exceptions. In his judgment dismissing a challenge to the inspector s decision under Section 288 of the Town and Country Planning Act 1990, Mitting J described the relevant law as still in a state of flux. No doubt at least in part by reason of that expression of view, Richards LJ, giving the judgment in the Court of Appeal with which the other members of the court agreed, subjected the Whitely principle and the exceptions thereto, together with subsequent authorities, to a rigorous analysis. The relevant parts of his judgment are to be found in paragraphs 6 to Paragraph 6 sets out the principle see paragraph 31 above. Paragraphs 7 to 11 are worth quoting in full: 7. In Leisure Great Britain plc v Isle of Wight Council (1999) 80 P&CR 370, 378, Keene J described this as a clear legal principle of general application, observing that the court is not in these cases exercising some general equitable jurisdiction as though it had a broad discretion vested in it where fairness was the only or main criterion. It had been recognised, however, that there might sometimes have to be exceptions to the general principle, and the categories of exceptions were not closed. 8. One exception identified by Keene J came from Whitley itself, which could be seen as establishing the proposition that, if a condition requires an approval before a given date and the developer has applied by then for the approval, which is subsequently given so that no enforcement action could be taken, work done before the deadline and in accordance with the scheme ultimately approved can amount to a start to development. 9. A second exception was to be found in Agecrest v Gwynedd County Council [1998] JPL 325, where conditions required a number of schemes to be submitted and approved before any development could commence, but the planning authority subsequently agreed that development could start without full compliance with all those conditions. A third exception

15 was to be found in R v Flintshire County Council, ex parte Somerfield Stores Ltd [1998] P&CR 336, where it was held that a condition had in substance been complied with where the relevant report had been submitted and approved but the relevant formalities, including a written notice of approval, had not been achieved by the time work began on site. Keene J described both those cases as narrow exceptions to the general principle, one arising where the planning authority had agreed to work starting without compliance and the other where the condition had been met in substance, although not in form. 10. Keene J went on to hold that the facts of the case before him did not fall within any of the existing recognised exceptions and that on those facts there was no proper justification for making an exception to the normally applicable principle. 11. In R (Hammerton) v London Underground Limited [2002] EWHC 2307 (Admin), Ouseley J examined those and other relevant authorities at some length. He drew from them a number of points set out at [123]-[133] of his judgment. They included, at [124], that "the circumstances in which an exception to the general principle could be made are very limited" and, at [127], that "the principle discernible in Woolf LJ's reasoning [in Whitley] is that where it would be unlawful, in accordance with public law principles, notably irrationality or abuse of power, for a local planning authority to take enforcement action to prevent development proceeding, the development albeit in breach of planning control is nevertheless effective to commence development". In R (Prokopp) v London Underground Ltd [2003] EWCA Civ 961, [2004] 1 P&CR 31, at [85], Buxton LJ (with whom the other members of the court agreed) endorsed Ouseley J's view that irrationality of enforcement action falls within the public law exception to the Whitley principle. 36. Between paragraphs 12 and 18, Richards LJ discusses and analyses the decision of Sullivan J (as he then was) in R (Hart Aggregates Limited) v Hartlepool Borough Council [2005] EWHC 840 (Admin). At paragraph 19 he expresses his agreement with the observation of Sullivan J to the effect that there is a need to avoid an unduly rigid application of the Whitley principle where it would produce absurd results and run contrary to the underlying purpose or policy of the relevant planning legislation. (iv) R (Ardagh Glass Ltd) v Cheshire West Council [2011] PTSR In January 2008, Quinn Glass Limited submitted two planning applications to the local planning authority pursuant to section 73A Town and Country Planning Act 1990 seeking retrospective planning permission for a glass manufacturing factory which had been constructed in Elton in Cheshire. By the time of the applications the factory was in operation. It was common ground that the development for which permission was sought constituted EIA development so that planning permission could not be granted without consideration of the environmental impact of the development. The Claimant in the proceedings, a competitor of Quinn Glass Limited, sought an order against the local planning authority prohibiting the grant of planning permission on the grounds that Council Directive 85/337/EEC and European law did not permit the grant of retrospective planning permission for EIA development. At first instance and on appeal the claim failed.

16 38. During the course of his judgment, with which Lloyd and Jacob LJJ agreed, Sullivan LJ gave three distinct reasons for concluding that HHJ Judge Mole QC (the judge at first instance) had been correct to conclude that the the bald proposition that European law did not permit the grant of retrospective planning permission for EIA development was erroneous. Those three reasons were (a) such a conclusion accorded with commonsense (b) such a conclusion was consistent with the need to ensure that measures taken to ensure compliance with the Directive were proportionate and (c) the conclusion was consistent with the decision in Commission of the European Communities v Ireland [2008] ECR I These reasons were amplified in paragraphs 15 to 18 of his judgment which read as follows: 15 Given the variety of circumstances in which EIA development might be carried out in breach of the requirements of the Directive and the wide range of environmental consequences of such a breach, it would be very surprising if there was only one lawful response to a breach, however caused and whatever its environmental consequences. At one extreme, development causing very serious environmental harm might have been carried out in flagrant and deliberate contravention of the Directive. In such a case, removal of the unauthorised development would be appropriate. At the other end of the spectrum there might have been an inadvertent failure to comply with the Directive (for example, a development carried out in reliance upon an apparently valid planning permission which was subsequently quashed on legal grounds, quite unconnected with the EIA), which had not merely caused no environmental harm but was positively beneficial in environmental terms. It would, in my judgment, be an affront to common sense if retrospective planning permission (correcting the legal error unrelated to the EIA) could not be granted in such a case, and the local planning authority was compelled to require the removal of the development prior to considering any further application for planning permission, not least because the process of removal might itself cause serious environmental harm. Proportionality 16 While member states must take all appropriate measures to ensure compliance with the Directive and to nullify the effects of any breach, it is a fundamental principle of EU law that such measures must themselves be proportionate. For the reasons set out in the previous paragraph, a prohibition upon the grant of retrospective planning permission for EIA development, regardless of the circumstances surrounding, and the environmental consequences of, the breach of the Directive, would be wholly disproportionate. The Ireland case 17 The Court of Justice would no doubt have had such considerations well in mind when it said, in the Ireland case [2008] ECR I-4911, para 57: While Community law cannot preclude the applicable national rules from allowing, in certain cases, the regularisation of operations or measures which are unlawful in the light of Community law, such a possibility should be subject to the

17 condition that it does not offer the persons concerned the opportunity to circumvent the Community rules or to dispense with applying them, and that it should remain the exception. 18 In para 61, the Court of Justice said that Ireland had failed to comply with the requirements of the Directive: by giving to retention permission, which can be issued even where no exceptional circumstances are proved, the same effects as those attached to a planning permission preceding the carrying out of works and development. Those passages seem to me to be an express recognition by the Court of Justice that, subject to certain conditions, there may be exceptional circumstances in which a retention permission may be granted for EIA development. 39. Paragraphs 27 to 32 of Sullivan LJ s judgment are also apposite in the instant case. They read: 27 In [2009] Env LR 698, para 102 the judge said that retrospective planning permission could lawfully be granted for EIA development provided the decision-taker, whether the local planning authority or the Secretary of State, made it plain that a developer would gain no advantage by pre-emptive development and that such development will be permitted only in exceptional circumstances. 28 In para 103 the judge referred to the approach to be adopted by the Secretary of State on an appeal against an enforcement notice, but his observations are equally applicable to a local planning authority considering an application under section 73A of the 1990 Act: The [decision-taker] can and in my view should also consider, in order to uphold the Directive, whether granting permission would give the developer an advantage he ought to be denied, whether the public can be given an equal opportunity to form and advance their views and whether the circumstances can be said to be exceptional. There will be no encouragement to the pre-emptive developer where the [decision-taker] ensures that he gains no improper advantage and he knows he will be required to remove his development unless [he] can demonstrate that exceptional circumstances justify its retention. 29 I acknowledge that the United Kingdom legislation is broadly similar to, and indeed in certain respects somewhat less stringent than, Ireland's Planning and Development Act 2002 which was considered by the Court of Justice in the Ireland case [2008] ECR I It may, therefore, be necessary for the United Kingdom Government to consider whether

18 amending legislation should be enacted. In the meantime, however, it is perfectly possible to interpret existing United Kingdom law so as to secure conformity with EU law as declared by the Court of Justice in the Ireland case. 30 Mr McCracken submitted that conformity had to be secured by way of an enactment; it was not possible to rely on administrative or judicial practice. In support of this submission he cited Commission of the European Communities v Italian Republic (Case C-58/90) [1991] ECR I However, in that case the national law in question was expressly discriminatory, and thus any administrative or judicial practice to the contrary would, as the court pointed out, simply cause an ambiguous state of affairs for the persons concerned. 31 In those circumstances it is not surprising that it was concluded that Italian law could not be interpreted so as to be in conformity with the requirements of Community law. In the present case, by way of contrast, there is a discretion to grant retrospective planning permission conferred by section 73A and section 177 of the 1990 Act, but there is no requirement that planning permission shall be granted. It is therefore perfectly possible for the decision-taker to ensure that the discretion is exercised so as to conform with the Court of Justice's judgment. To that end, I would endorse those passages which I have set out in paras 27 and 28 above: [2009] Env LR 698, paras 102 and 103. They accord with the court's judgment in the Ireland case and, if the decision-taker exercises his discretion in accordance with that guidance, there will, in my judgment, be no breach of EU law. 32 If Lloyd and Jacob LJJ agree with this conclusion then the lawfulness of the two permissions subsequently granted by the local authority is a matter for the Administrative Court to decide in the judicial review proceedings applying the approach to the Directive set out above. (v) Section 73A of the Town and Country Planning Act 1990 Section 73A provides: (1) On an application made to a local planning authority, the planning permission which may be granted includes planning permission for development carried out before the date of the application. (2) Subsection (1) applies to development carried out - (a) without planning permission; (b) in accordance with planning permission granted for a limited period; or (c) without complying with some condition subject to which planning permission was granted. (3) Planning permission for such development may be granted so as to have effect from -

19 (a) the date on which the development was carried out; or (b) if it was carried out in accordance with planning permission granted for a limited period, the end of that period. 40. Mr Goodman does not seek to argue that these statutory provisions are inconsistent with European Union law. His contention is, however, that approval for development (certainly if it is EIA development) which has begun prior to the discharge of precommencement conditions can be obtained only by the application of these statutory provisions. This suggestion is hotly contested; it is one of the legal issues for my determination as to which see below. Grounds of challenge and discussion 41. Mr Goodman relies upon three grounds which are set out in his skeleton argument. By Ground 1A he submits that the decisions taken on 13 February 2013 amount to what he categorises as the granting of de facto retrospective development consent and that the grant of such consent is unlawful on domestic common law principles. His reasoning process in support of this submission is that (a) the works undertaken on site between 20 July 2012 and 13 February 2013 were material to the decisions which the Defendant made on 13 February 2013; (b) it follows that the public s views on those works were material and the Defendant was consequently obliged to ascertain them; (c) it failed properly to do so; (d) a measure of that inadequacy was that the statutory mechanism for retrospective application (under Section 73A of the Town and Country Planning Act 1990) was circumvented and an alternative deployed in its place which was inferior in the extent to which it facilitated public participation in, and the Defendant s consideration of, the works undertaken. Ground 1B is a variation upon the same theme but set in the context of European law. Mr Goodman submits that the decisions made on 13 February 2013 taken together are to be regarded as development consent for the purposes of Article 2(1) of the EIA Directive which allowed the development to proceed. In granting development consent in this ad hoc way, submits Mr Goodman, the Defendant acted in breach of the Directive because (a) the retrospective development consent was not granted in accordance with applicable national rules; (b) the grant of permission permitted Viridor to obtain a benefit or advantage from its pre-emptive commencement of the construction works and further, (i) to circumvent EU law or (ii) to dispense with applying community rules (or the applicable national rules by which those rules are given effect); (c) there were no exceptional circumstances which justified the grant of retrospective development consent. By Ground 1C, Mr Goodman argues that the process undertaken by the Defendant, taken as a whole, denied the public its proper rights to consultation and participation in the process of granting subsequent applications approval on a matter of very significant public importance and was unlawful on public law principles and contrary to public participation objectives stemming from the Aarhus Convention. 42. I propose to deal with each of these grounds in turn. Ground 1A