United Kingdom
Environmental Impact Assessments, Standing, Inspections, Remedies, Permits, Cooperation, Evidence
This case is a further chapter in the history of the Quinn Glass works at Elton, near Chester. Quinn Glass is a major manufacturer of glass and wished to set up business in England. The Elton works were designed to be the largest glass container factory in Europe.. The works do not benefit from planning permission. Quinn took a “calculated risk” to build without permission. In early 2007 the Secretary of State refused an application for retrospective planning permission which had been called in. The Elton works lie partly within the area of Chester City Council and partly within Ellesmere and Neston Borough Council (“the Defendant Councils”). Quinn made a further application for retrospective permission to the Defendant Councils in early 2008 accompanied by an EIA but this has yet to be determined and is the subject of an Article 14 direction. Ardagh a commercial rival of Quinn brought judicial review proceedings seeking: (i) a mandatory order that the Defendant Councils take enforcement action on a “precautionary basis” in order to prevent immunity accruing; and (ii) an order prohibiting the grant of permission, alternatively a declaration that the grant of permission would be lawful. Ardagh argued that as the unlawful development was EIA development not subject to EIA before it was constructed: (i) EU law required that the Defendant Councils enforce; and (ii) the grant of retrospective planning permission was, following the ECJ’s decision in Case 125/06 Commission v Ireland, prohibited by the EIA Directive. The Judge granted the mandatory order remarking that not to enforce and so allow immunity to accrue “would be a betrayal by the planning authorities of their responsibilities and a disgrace upon the proper planning of this country”. The Judge considered that it would be a breach of the EIA Directive if EIA development were granted without permission and the planning authorities stood by and did nothing. However, he rejected the contention that the grant of retrospective permission for EIA development was prohibited by the EIA Directive. He considered that permission could be granted retrospectively consistently with the EIA Directive in exceptional circumstances so long as no advantage was gained by the developer in having unlawfully commenced the development without undertaking EIA. The Judge noted that that was very close the approach applied by the Secretary of State in refusing retrospective permission in 2007.