planning and environmental law update
When is substantial completion anyway?
The Ardagh Glass case has more twists in it than a game of snakes
and ladders and the game hasn’t even finished yet! In 2000, Quinn
Glass approached Ellesmere Port and Neston Borough Council and
Chester City Council to promote a major glass manufacturing
facility. Approval was finally given in 2003, but then amendments
were sought in 2004. The Councils took the view that these were
minor amendments to the original planning permission but this
decision was subject to a High Court challenge by Ardagh Glass (a
competitor) and the decisions were quashed. Further applications
were submitted in 2004 for the amended development which were
subsequently called in by the Secretary of State. These were
refused for a variety of reasons but the Secretary of State did
indicate that the objections to the development may be overcome by
a new application.
In April of last year a further High Court challenge was made by
Ardagh Glass seeking an order to make both Councils issue an
enforcement notice against the unauthorised facility and to prevent
the Councils from determining the planning applications for the
retrospective consent of the facility.
The case concerned two issues. The first being that enforcement
action could not be taken after a period of four years from
substantial completion and there were alternative views taken on
the date from when the immunity started to run. Secondly, the
claimant contended that it was impossible for the local planning
authority to grant planning permission for Environmental Impact
Assessment (EIA) development after the works had taken place – the
provisions within the UK system for retrospective granting of
planning permission was not consistent with the EIA Directive
objectives.
In respect of the first issue, consideration was given to the
case of Sage v Secretary of State [2003] UKHL 22 and what
is meant by substantial completion. The key to this question is
determining what the operations in question are. In the Sage case,
the development was a single dwelling house and it was sensible for
Lord Hobhouse to take a holistic view of development in that
instance. The court rejected the defendant argument that the
substantial completion will refer to those operations which are
envisaged by the parties at the outset. Rather, the court preferred
the view that where there is a complex development, it was entirely
possible for the development to be made up of a number of
operations and for immunity to occur on each distinct part. Which
separate operations form each element of the development will be a
matter of fact and degree in the circumstances of each case.
However, what is clear is that for large developments, substantial
completion will not necessarily be when the entire development is
complete, rather individual elements will be capable of substantial
completion at different times.
In the second issue, it was argued by the claimant that the EC
directive on EIA required that, before consent is given for
projects likely to have a significant effect on the environment,
they are made subject to an EIA and that environmental assessment
must occur before development commences. Therefore, the ability to
grant retrospective planning consent for EIA development was
inconsistent with EU law. This view was not shared by the court who
were of the view that as long as a decision to grant development
consent is preceded by a full and proper EIA and a full and genuine
opportunity for the public to understand the proposals, express
their views and have them taken into account, then this would not
be contrary to Article 2(1) of the Directive. Where it is clear
that the developer has obtained an advantage, such as less rigorous
requirements from the EIA, then this will plainly be contrary to
the Directive and retrospective development consent should not be
granted. Therefore the judge refused to grant a declaratory order
that planning permission could not be granted for the development
retrospectively.
Subsequently, the local planning authority has resolved to grant
planning permission subject to call in, which we understand the
Secretary of State has decided not to do. However, both parties
appealed the High Court decision and this will be heard in the
Court of Appeal in the Spring. It is difficult to know with any
certainty what the Court of Appeal will decide, however you
shouldn’t bet against another twist in this long running saga.
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