Evans, R (on the application of) v Basingstoke And Deane Borough Council [2013] EWHC 899 (Admin)

“Erection of 3 no. intake bays and 9 no. despatch bays and a storage area adjourning main building. Erection of agricultural and vehicle workshop following demolition of existing. Relocation of existing and provision of new plant and equipment; the provision of a temporary construction compound; temporary relocation of crate wash room; and the implementation of a scheme of lighting and landscaping improvements.”

“The covered and enclosed storage area identified on drawing no. VSL/04 shall be used only for storage ancillary to the use of the adjacent packhouse and shall not be used for the sorting, washing, packing or activities related to the processing of watercress, baby leaf and salad products or for any other purpose whatsoever unless otherwise agreed in writing by the Local Planning Authority. REASON: To prevent a material intensification of the use of the covered and enclosed storage area and because it is sited in a sensitive location where an unrestricted use would be contrary to local and national policies of planning restraint.”

“If you were a councillor and considered that there was a risk that the extension would lead to an increase of production and/or activities with ill effects on the environment, would you think, after reading the report, that you were free in law to decide to impose conditions which bit on the existing premises such as restricting use of parts of the existing or limiting the number of production lines or the quantities of production?”

“No: you would not. You would be under the impression that you could not lawfully make such a decision.”

“The business case for the proposed development is that it will improve the product quality, reduce inefficiency and costs, improve working conditions for staff, reduce CO2 emissions and deliver other environmental benefits. The closure of two existing breaks in the cold chain relating to the unloading and loading of salad products from HGV’s is a basic requirement for chilled food suppliers which VSL cannot currently meet. The existing intake and despatch operations are energy inefficient as chilled air is lost from delivery vehicles and the packhouse resulting in unnecessary energy use of CO2 emissions. The proposed covered storage areas for crates, pallets, chemicals and equipment storage would lead to a reduction in noise emissions, visual impact and improve the working conditions for staff.”

“At current levels of production there are already serious local concerns about the level of traffic generated, associated pollution and environmental damages to road verges, as well as the disturbance caused to parishioners, together with light pollution, none of which are addressed to our satisfaction in the application. Whilst it is apparently based on tidying up the site and improving processes with the goods-in and good-out bays, the reality is that, if approved, this application paves the way for increased throughput with consequent increased traffic, increased waste and increased discharge into either the rivulet or the sewer… We have continuing concerns about the flood risk in the Bourne Valley and to what extent the VSL operation may contribute to this both now and in the future. Finally, we are not competent to assess the quality of the water in the Bourne Rivulet below Lower Link Farm, and would expect nothing less than a fully positive view from the Environment Agency without which consent should be withheld. Plant Capacity This is a packing plant NOT an agricultural enterprise. At current levels of output there is more than enough pressure being put on the environment, notably with the carbon footprint of salads being flown in from The USA and Kenya and trucked in from mainland Europe. The noise and light pollution is at an unacceptable [sic] and is not addressed to our complete satisfaction by the application. It is clear from this that increased production is by no means ruled out as confirmed by the statement from the new owners, RAR at the time that they acquired VSL. The only way of ensuring that this application does not lead to the consequences of increased output is to find some means of capping output… Effects of Bourne Rivulet At the time of the last Application the EA gave out very mixed messages on this issue. Given the time for thorough evaluation and testing, on this occasion nothing less than a completely clean bill of health for the quality of water in the rivulet below VSL’s discharge points should be acceptable. Together with this, there should be a clear programme of tests to ensure that this quality is maintained, with the results of the tests being made publicly available to the parishes. Summary Our opposition is based on the fact that the operation at Lower Link Farm should be judged as an industrial process subject to the same conditions as any other industrial enterprise in a similar location. It should not be allowed to escape these by claiming to be an agricultural process. The traffic and other forms of pollution are already unacceptable to local residents and any approval should be subject to the most stringent conditions on output, traffic, and flood risk, the operation of the Workshop and water quality of the Bourne Rivulet as set out above.”

“Pollution issues have still not been resolved and will be made worse by increased production resulting from this application….This is not an agricultural use but a large-scale industrial food processing plant which has expanded enough and outgrown its site. The proposal will result in an expansion of production and output with consequent harm to the local environment and an increase in traffic. Increase in production will require further water from the existing aquifer. This will result in rivers upstream drying up. Adverse effect on natural life and ecology of Bourne Rivulet. …The ES does not adequately address the issues of waste and pollution which were highlighted in the Secretary of State’sscreening direction in respect of BDB55966 and are referred to in the Council’s screening opinion on the current application.”

“EIA requirements have not been met and no expansion of activities should be allowed until they are satisfied. Additional information does not address the inadequacy of the ES in respect of waste and pollution matters.”

“Planning and Pollution Control states that local planning authorities must be satisfied that planning permission can be granted taking full account of environmental impacts with close co-operation with the Environment Agency and other relevant authorities such as Natural England and drainage and sewerage authorities. Annex one to PPS 23 deals with air and water quality AWQ and states (para 1.21) that the Environmental Agency is responsible for protecting and enhancing the quality of surface (inland and coastal) waters and ground water…”

“Relevant Planning History A watercress farm has been established on this site for many years. The first commercial lease dates back to 1905 and Vitacress has been packing bunched watercress on the site since 1950. Over time this process has become increasingly mechanised and Vitacress has diversified the agricultural operations with other salad leaves and salad products brought to Lower Link Farm for washing, mixing and packing. Key to the development of watercress production on the site is the ready supply of natural spring water which is abstracted from underground aquifers to flow through the watercress bed. VSL say that locating the packhouse operations at Lower Link Farm is essential to enable VSL to use the readily available fresh spring water, pumped under licence from boreholes on the site, for the washing of salad products. Several planning applications have been submitted relating to the development of the site, as noted above. In their supporting information VSL state the site now comprises the following functions: • ‘The growing and harvesting of watercress, including all ancillary agricultural operations • The washing, mixing and packaging of both salad products derived from the site, and imported onto it • The import of salad leaves from other, predominantly VSL farms, and the distribution of packed salad products to customers • The maintenance and parking of VSL's HGV distribution fleet • VSL's administrative offices’ Of particular relevance to this application is BDB/55966, which was for a similar form of development, including 10 rather than 9 despatch bays as now and also including a new office suite which is no longer part of the proposals. That application was considered by the Council’s Development Control Committee on 10/12/2003 who resolved to grant planning permission subject to a S106 agreement to secure a contribution towards BEST and a Landscape Management Plan. The agreement was completed and planning permission was issued on 14 April 2004. The decision was challenged in the High Court in July 2004 on several grounds. Legal advice to the Council was that the Council had not considered whether the development was a Schedule 2 development and if so whether it was an EIA Development in accordance with the Regulations and that the Council had failed to undertake a screening opinion required by the Environmental Regulations. The Council submitted to judgement which quashed the planning permission dated 14 April 2005 in respect of BDB/55966. In September 2004 the applicant requested that the Secretary of State make a screening direction as to whether the application was an EIA development. In his response, dated 9 November 2004, the Secretary of State stated that: “Since the proposal is located in a sensitive area, the Secretary of State considers your client’s application to be a ‘Schedule 2 application’ within the meaning of the 1999 Regulations. Furthermore, having taken into account the criteria in Schedule 3 to the 1999 Regulation, in the opinion of the Secretary of State, the proposed development would be likely to have significant effects on the environment because of its nature, size and location, having regard to the likely impact of the development on the River Test Site of Special Scientific Interest, in particular: (i) the production of waste (ii) pollution Accordingly, in exercise of the powers conferred on him by regulations 7(7) and 6(4) of the 1999 Regulations, the Secretary of State hereby directs that the proposed development for which planning permission is sought by your client’s application, reference number BDB 55966 is ‘EIA development’ within the meaning of the 1999 Regulations.”

“The most important question to be asked it seems to me is whether the ES produced is adequate to meet the provisions of the Regulations. Again, although this is not a technical view based on the underlying science, on the face of it, it seems to me that the matters considered in the ES do include the matters identified in Part I of Schedule 4. If there are any ‘holes in the science’ then these need to be identified by someone with expert knowledge. The other point of concern for the Council is whether the ES has failed to assess the potential scope of activities on site. It seems this argument is based on the concern that the current proposals may lead to higher levels of activity on site. This is a difficult issue: VSL has been pushed on this point and maintain that the current development would not lead to any more operations being undertaken at the site. Although the Council have been concerned about this and have properly asked for more information, I do not understand that the Council have any evidence to question the assertion that the development proposed will not lead to any greater growing of watercress or packing/washing of salad leaves. In the circumstances it seems to me that the EIA regime is not designed to bite on the impact of existing development, but of the proposed development (if necessary considered in connection with existing development). This much is clear from the Circular 02/99 paragraph (part 46-47, which discusses ‘changes or extensions to existing or approved development’ as follows: (Circular 02/99 part para. 46-47) “Development which comprises a change or extension requires EIA only if the change or extension is likely to have significant environmental effects. This should be considered in the light of general guidance in this Circular and the indicative thresholds in Annex A. However, the significance of any effects must be considered in the context of the existing development. For example, even a small extension to an airport runway might have the effect of allowing larger aircraft to land, thus significantly increasing the level of noise and emissions. In some cases, repeated small extensions may be made to development. Quantified thresholds cannot easily deal with this kind of ‘incremental’ development. In such instances, it should be borne in mind that the thresholds in Annex A are indicative only. An expansion of the same size as a previous expansion will not automatically lead to the same determination on the need for EIA because the environment may have altered since the question was last addressed. 47. It should be noted that a developer can be asked to provide an Environmental Statement only in respect of the specific development he has proposed, though the statement will need to address not only direct, but also indirect effects of the development. Any wider implications would be for the local planning authority to consider although it is open to developers to assist the local planning authority by supplying any additional information relevant to this consideration.”

“Other Material Considerations”

“The issues raised by this application are quite complex. The site is in a sensitive location within the AONB, adjacent to a Conservation Area and accessed by a rural road network. The location is relatively unsustainable in terms of the application of policy. Added to this are the proximity of the SSSI and concerns regarding the sensitive local water receiving environment. The proposed development is sought to support and facilitate the operation of the existing business, which, whilst it has developed from agricultural origins as a watercress farm which still remains, is now a substantial international business largely concerned with the importation, processing and despatch of watercress and other baby leaf salad products grown elsewhere. The existing use is considered to be established on the site and any controls the Council may impose must only relate to the development now proposed, they cannot seek to control the underlying use. The acceptability or otherwise of this planning application must be seen in the context of the established nature of the existing use. To that extent issues relating to the suitability of the site for the existing operation are irrelevant. The issues for consideration are whether the impacts of the development applied for as set out above and analysed in the application and accompanying ES are acceptable. Consideration also needs to be given to the fall-back position, or the situation which would exist either in the event of refusal or the development not being proceeded with. The Council has no powers to require the existing use to relocate as advocated by a number of third parties. Equally there is no guarantee that the input, throughput or output from the processing and packaging operation would stay the same, reduce or increase as a result of the development. The identified impacts arising from the proposed development are not considered, either individually or cumulatively, to be so harmful as to justify refusal of the planning application provided that mitigation or controls, where appropriate, are secured, either through planning condition or legal agreement. …”

“1. Whilst the proposal does not meet the sustainable location requirement of Policy D9 of the Basingstoke and Deane Borough Local Plan 1996-2011, in view of the existing established agricultural/industrial use on this site, and the business case and locational justification for the proposed development it is considered to be acceptable and consistent with the provisions of PPS 1 (and climate change supplement), PPS4 and PPS7. 2. The traffic impacts of the developments are considered to be acceptable and consistent with the advice contained in PPG13 and PPS4 and comply with Policy E1 (iii) of the Basingstoke and Deane Borough Local plan 1996-2011. 3. The development is considered to be acceptable in terms of its impact on the water environment, biodiversity and flood risk consistent with relevant national policy guidance contained in PPS9, PPS25 and to comply with Policy E1 (vii) and Policy E7 of the Basingstoke and Deane Borough Local Plan 1996-2011. 5. In terms of the location of the development adjacent to two existing Conservation Areas the development is considered to be acceptable and to comply with the provisions of PPS5 and Policy E3 of the Basingstoke and Deane Borough Local Plan 1996-2011. 6. The development as proposed is considered to be acceptable in terms of its impact on noise, vibration and air quality and to be consistent with the provisions of PPG24 and Policy E1 of the Basingstoke and Deane Borough Local Plan 1996-2011.”

“The agricultural and vehicle workshop hereby approved shall be used only for the repair and maintenance of vehicles and the repair, maintenance and modification/fabrication of plant and machinery owned and operated in connection with the operational activities on the site and for no other purpose whatsoever unless otherwise agreed in writing by the Local Planning Authority. REASON: As the workshop is sited in a sensitive location where an unrestricted use would be contrary to local and national policies of planning restraint.”

“An assessment of the degree to which the development applied for could lead to the capability for increased productive capacity on the site.”

“2.16 The proposed development will not, by itself, lead to changes to the nature and quantities of salad leaves and vegetables used at Lower Link Farm. Those quantities are directly related to customer demand. … 2.1.15 The proposed development will not, by itself, lead to changes of the quantity of packaging used. 2.1.17 The proposed development will not lead to any significant changes in the nature and quantities of other raw materials used. 2.2.8 The proposed development will not, by itself, lead to changes in the quantity or quality of water discharged form the site. 2.3.6 VSL does not consider that a forecast of the future production levels for Lower Link Farm is relevant to the consideration of the proposed development for which planning permission is sought. This was clearly stated in paragraphs 3.29 to 3.31 of the ES submitted with the planning application. Production levels at the site are driven by customer requirements which are in turn dictated by the state of the wider economy, consumers’ seasonal demand for salad products and prevailing weather conditions. The proposed development will not alter this position. 2.4.1 The Council has specifically requested an assessment of the degree to which the development applied for could lead to the capability for increased productive capacity on the site. Put simply it will not. 2.4.2 [see the passage already quoted] Production within the packhouse, as has been stated numerous times, is dictated by customer requirements for VSL’s products. There is flexibility within the packhouse to vary production in response to customer requirements and the ability to do this is essential to the business. 2.4.3 There are three theoretical ways to increase capacity in the packhouse. The first would be to reduce downtime. Nothing in this proposal will reduce downtime. The second is to build more productive floor space in which to put additional machines. This proposal will not add productive floor space. The third would be to introduce new technology if it were to become available. No new technology exists at this time and nothing in this proposal is associated with new technology. The proposal will close two breaks in the cold chain, reduce double handling of salad products and associated vehicle movements within the site, thus enabling a more cost effective and more environmentally sensitive operation of the site. Conclusions 3.1 The proposed development will not change the nature of the operational processes that take place at Lower Link Farm. It will improve the quality and freshness of the salad product, remove inefficiencies and reduce costs of the operation and deliver environmental benefits including reduced energy usage and CO2 emissions. 3.3 Section 2.3 of this ES Addendum identifies the production levels at Lower Link Farm, including seasonal variations in those levels. Production levels at the site are driven by customer requirements which are in turn dictated by consumers seasonal demand for salad products and prevailing weather conditions. The proposed development will not alter this position. 3.4 Section 2.4 of this ES Addendum provides further explanation that the development applied for does not lead to the capability for increased productive capacity on the site, as it does not involve any reduction in downtime, any new machines or new technology to be implemented in the packhouse operation.”

“None of these proposed developments will require or lead to a change in the volume or nature of the existing abstraction or discharges…”

“The scoping document states that the “nature” of the discharge will not change as a result of the proposed developments. However paragraph 4.5 of the scoping report implies that the proposed development could in conjunction with other changes on site lead to either increased productivity from the farm or changes in practice, both of which could in the future lead to increased output of effluent or change in effluent. There is a discharge consent for this site, and any effluent discharged from the site must meet the requirements of this consent. It is also important to note that changes in processes on site could lead to changes to the quality of the effluent discharged from the site, without causing a breach of the discharge consent, but this would then fall outside of regulation by the Environment Agency. ”

“1.4 Vitacress Salads Limited has positioned itself to grow and pack healthy product for the quality end of the bagged salad market… The five year plan assumes 10 per cent year on year growth. 1.24 Future expansion plans are based mainly on improved efficiencies, supported by limited increase in the number of wash and pack lines.”

“The maintenance and transport offices on the long north-[west] side of the Backhouse will be relocated. This will allow for the space to be used for washing and packing of salads…”

“1.4… through further de-bottlenecking, a total improvement of around 35 per cent is planned for 2003. These further expansion plans are based mainly on improved efficiencies, supported by a limited increase in the number of wash and pack lines. 1.5 Vitacress consider the Site Rationalisation Proposals assessed within this report are central to their strategy to achieve these fundamental aims… 4.11 The intake area will be expanded to the north-east to enable installation of the three intake bays and to bring inside the crate wash facility and green waste area. 4.12 Once automatic inspection is technically feasible for all raw materials, incorporation of this facility into the high care area will require an increase in the total length of the packing lines, requiring more space within the packhouse, which will be provided through the proposed extension to the north-east.”

“7.48 Measures identified and under implementation by Vitacress are aimed at reducing the degree of under utilisation of available vehicle space within their current vehicle fleet and those of their suppliers and hauliers and an increasing the capacity of that fleet. Taken together, these measures will act as a buffer to cushion the impact of increasing output at the facility. 7.6.2 At the end of the rationalisation process in 2008 the ability to mitigate HGV movements during the early years enables the increase in heavy goods traffic to be restricted to 29 per cent by comparison to 2002 levels.”

“The two principal restrictions which the courts have placed on those words are first that the condition is invalid as being contrary to law unless it is reasonably related to the development in the planning permission which has been granted. It must not be used for an ulterior purpose, and must, in the well known words of Lord Dennning M.R. in Pyx Granite Co. Ltd v Minister of Housing and Local Government [1958] 1 QB 544, 572, “fairly and reasonably relate to the permitted development.”

“If in the circumstances of this case the condition imposed was not, in the Secretary of State’s opinion, fairly and reasonably related to the permission granted, the courts cannot interfere with his conclusion unless it is established that he misdirected himself or reached a conclusion to which he could not reasonably have come.”

“given that whether the condition fairly and reasonably relates to the proposed development is a matter of law, it was a matter on which the learned judge was entitled to reach a conclusion”

“The productive capacity at the site is determined by the physical size of the area of the pack house building that is devoted to the washing, mixing and packing of salad products. This physical space will not be altered by the development for which permission is sought.” (Emphasis added).

“The existing intake and dispatch operations, whilst inefficient in costs and environmental terms, are not a constraint of the productive capacity of the pack house.”

“Whilst objectors have cast doubt on the applicant’s stated objectives for the development, and there is no guarantee that activity levels would not alter as a result of the development, equally there is no evidence to dispute the applicant’s assertions regarding the key drivers for the development and the absence of a link between the development applied for and future productivity and output levels.”

“The concerns of third parties about the potential for activities on this site to intensify – with consequential harmful environmental impact, are acknowledged but in view of the conclusions drawn above in relation to the established nature of the existing site operations, the council does not have the legal power to control the existing use. The council may, however, impose conditions on the impacts of the proposed development, providing that such controls are necessary, reasonable, precise and enforceable.”

“The existing uses considered to be established on the site and any controls the council may impose must only relate to the development now proposed, they cannot seek to control the underlying use.”

“It seems to me that there is no problem in principle with a condition that purported to interfere with existing rights. The question is whether it is sufficiently connected with the proposal.”

“1. Member States shall adopt all measure 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 assessment with regard to their effects. These projects are defined in Article 4.”

“1. Subject to Article 2(3) projects listed in Annex (I) shall be made subject to an assessment in accordance with Articles 5 to 10. 2. Subject to Article 2(3) for projects listed in Annex (II) the Member States shall determine through: (a) a case-by-case examination, or (b) thresholds or criteria set by the Member State whether the project shall be made subject to an assessment in accordance with Articles 5 to 10…”

“1. In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annex (IV) in as much as: (a) the Member States consider that the information is relevant to a given stage of the consent procedure and to the specific characterisations of a particular project or type of project and of the environmental features likely to be affected; (b) the Member States consider that a developer may reasonably be required to compile this information having regard inter alia to current knowledge and methods of assessment. 3. The information to be provided by the developer in accordance with paragraph 1 shall include at least: - a description of the project comprising information on the site, design and size of the project, - a description of the measures envisaged in order to avoid, reduce and, if possible remedy significant adverse effects - the data required to identify and assess the main effects which the project is likely to have on the environment…”

“4. The public concerned shall be given early and effective opportunities to participate in the environmental decision-making procedures referred to in Article 2(2) and shall, for that purpose, be entitled to express comments and opinions when all options are open to the competent authority or authorities before the decision on the request for development consent is taken…”

“2. The table below sets out the descriptions of development and applicable thresholds and criteria for the purpose of classifying development as Schedule 2 development.

“3. The data required to identify and assess the main effects which the development is likely to have on the environment.”

“It is extremely unlikely that the Environment Agency would confirm that a potential, and therefore unknown, impact arising from the site would not impact upon the SSSI (and in fact no reference is provided within the Scoping Report in support of this assertion). We therefore wish to confirm that whilst we have found no evidence that current impacts arising from the site are reaching the river test SSSI, we cannot rule out the possibility of impacts reaching the SSSI from future activities at the site. The last sentence in paragraph 7.5 of the Scoping report is therefore not correct.”

“Any plan or project not directly connected with or necessary for the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In light of the conclusions of the assessment of the implications for the site… the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely effect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.”

“3(a) Is Article 6(3) of the Habitats Directive to be interpreted as meaning that there is a “plan or a project” once a particular activity is likely to have an effect on the site concerned (and an “an appropriate assessment” must then be carried to ascertain whether or not the effect is “significant”) or does this provision mean that an “appropriate assessment” has to be carried out only where there is a (sufficient) likelihood that a “plan or project” will have a significant effect?”

“40. The requirement for an appropriate assessment of the implications of a plan or project is thus conditional on its being likely to have a significant effect on the site. 41. Therefore the triggering of the environmental protection mechanism provided for in Article 6(3) of the Habitats Directive does not presume - … - that the plan or project considered definitely has significant effects on the site concerned but follows from the mere probability that such an effect attaches to that plan or project. 42. As regards Article 2(1) of Directive 85/337 [i.e. the EIA Directive] the text of which, essentially similar to article 6(3) of the Habitats Directive, provides that “member states shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment… are made subject to an assessment with regard to their effects”, the court has held that these are projects which are likely to have significant effects on the environment (see to that effect Case C-117/02 Commission v Portugal [2004] ECR I -5517 paragraph 85). 43. It follows that the first sentence of Article 6(3) of the Habitats Directive subordinates the requirement for an appropriate assessment of the implications of a plan or project to the condition that there be a probability or a risk that the latter will have significant effects on the site concerned. 44. In the light, in particular of the precautionary principle, which is one of the foundations of the higher level of protection pursued by Community policy on the environment, in accordance with the first sub paragraph of Article 174(2) EC, and by reference to which the Habitats Directive must be interpreted, such a risk exists “if it cannot be excluded on the basis of objective information” that the plan or project will have significant effects on the site concerned (see, by analogy, inter alia Case C-180/96 United Kingdom v Commission [1998] ECR I – 2265 paragraphs 50, 105 and 107). Such an interpretation of the condition to which the assessment of the implications of a plan or project for a specific site is subject, which implies that in case of doubt as to the absence of significant effects such an assessment must be carried out, makes it possible to ensure effectively that plans or projects which adversely effect the integrity of the site concerned are not authorised and thereby contributes to achieving, in accordance with the third recital in the preamble to the Habitats Directive and article 2(1) thereof, its main aim, namely, ensuring biodiversity through the conservation of natural habitats and wild fauna and flora. 45. In the light of the foregoing, the answer to question 3(A) must be that the first sentence of Article 6(3) of the Habitats Directive must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives “if it cannot be excluded, on the basis of objective information,” that it will have a significant effect on that site, either individually or in combination with other plans or projects.” (Emphasis added).

“It is very difficult to divorce changes and extensions from the effect of those changes or extensions, and for reasons which will become apparent, it would, in my judgment, be contrary to the whole approach that has been adopted by the European Court of Justice to the construction of the Directive and, indeed, to the purpose of the Directive if the overall effect of the changes or extensions or modifications was not able to be taken into account.”

“Discharges from the packhouse to the Eastern Channel are controlled by a number of EA discharge consents. These provide consentive limits for the following substances: pH, free chlorine (none to be present) suspended solids, zinc and a number of other substances. Discharges from the packhouse have been subjected by the EA to a considerable number of analytical tests in recent years, as a result of routine or specific monitoring exercises. The analyses have included metals, nutrients, suspended solids and pesticides and the results have not given rise to any concerns regarding the impact of packhouse discharges on the aquatic environment in relation to the Bourne Rivulat and the River Test and associated SSSI”

“32. Where there is a document purporting to be an environmental statement, the starting point must be that it is for the local planning authority to decide whether the information contained in the document is sufficient to meet the definition of an environmental statement in Regulation 2 of the Regulations: “‘environmental statement’ means a statement - (a) that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but (b) that includes at least the information referred to in Part II of Schedule 4.” 33. The local planning authority's decision is, of course, subject to review on normal Wednesbury principles: see R v Cornwall County Council ex p. Hardy [2001] JPL 786, per Harrison J at paragraph 65, applying R v Rochdale Metropolitan Borough Council ex p. Milne [2001] Env LR 416 at paragraph 106. 34. Information cable of meeting the requirements of Sch.4 to the Regulations must be provided: see Hardy (ibid.) and R v Rochdale MBC ex p. Tew [1999] 3 PLR 74 at 95G. 35. Part I of Schedule 4 requires the environmental statement to provide “a description of the likely significant effects on the environment ...” (paragraph 4) and “a description of the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment”

“1. A description of the development comprising information on the site, design and size of the development. 2. A description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects. 3. The data required to identify and assess the main effects which the development is likely to have on the environment. 4. An outline of the main alternatives studied by the applicant or appellant and an indication of the main reasons for his choice, taking into account the environmental effects. 5. A non-technical summary of the information provided under paragraphs 1 to 4 of this Part.” 36. Dr Wolfe referred to the speech of Lord Hoffmann in Berkeley v Secretary of State for the Environment [2001] 2 AC 603 at pp. 615–616, which, he submitted, “emphasised the absolute nature of the requirement to produce an environmental statement in the correct form and to comply with the procedural requirements”

“It is, as both the judge (at para 38) and the Court of Appeal (at para 84) held, primarily for the regulator to judge the adequacy of the information which the applicant has supplied. Mr Wolfe, who argued the appeal with great learning and ability, did not challenge this proposition. But he said that the gap in the information about the environmental effects of PM10 was so manifest that the Agency could not reasonably have judged the application to be valid. For the reasons I have given, I do not accept this submission. The remarks of Sullivan J in R (Blewett) v Derbyshire County Council [2004] Env LR 29, at para 41 about environmental statements, with which I agree, seem to me equally applicable to applications under the regulations: “In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the ‘full information’ about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting 'environmental information' provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations…but they are likely to be few and far between.” ” “In an imperfect world it is an unrealistic counsel of perfection to expect that an applicant's environmental statement will always contain the ‘full information’ about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting 'environmental information' provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations…but they are likely to be few and far between.” ”

“Will the extra docking bays increase the capacity of the plant and result in an increase [sic] traffic movements?”

“… The plant is at near maximum output, to dramatically increase throughput faster packing machines would be needed and they have the best available. There is a small percentage of gain that can be achieved but nothing major.”

“The fact that the authority has given an opinion under this paragraph shall not preclude it from subsequently requiring the developer to submit further information.”

“16 It is right to say that Lord Hoffman did not deal specifically with the role of the court in any challenge to a decision by a local planning authority. But it would be very surprising if the nature of the court’s reviewing function were to differ according to whether the question as to whether the application is a Schedule 2 application is made by the local planning authority or the Secretary of State. The question that is left to be determined in the first instance by the local planning authority is the same as the question that is determined by the Secretary of State pursuant to Regulation 2(2). I do not consider that the use of the word “opinion” in Regulation 2(2) indicates that there is any difference. The fact that the decision of the local planning authority may be overridden by a formal direction of the Secretary of State does not justify or require a different role for the court in the two cases. Accordingly I would hold that what Lord Hoffman said in relation to challenges to decision to the Secretary of State applies equally to challenges to decisions by local planning authorities. 17 Whether a proposed development is likely to have significant effects on the environmental involves an exercise of judgment or opinion. It is not a question of hard fact to which there can only be one possible correct answer in any given case. The use of the word “opinion” in Regulation 2(2) is therefore, entirely apt. In my view, that is in itself a sufficient reason for concluding that the role of the court should be limited to one of review on Wednesbury grounds. 18 I note that in Aannemersbedriijf PK Kraaijeveld Gedeputeerde Staten Van Zuid-Holland [1997] 3 CMLR 1, the ECJ said: “[59] The fact that in this case the Member States have a discretion under Article 2(1) and 4(2) of the Directive does not preclude judicial review of the question whether the national authorities exceeded their discretion…”

“What is the correct approach to the question whether the development would be likely to have a significant effect on the environment?”

“51… In any event I reject the contention that an authority is subject to a “bounding principle” whereby it must require an EIA unless confident or positively satisfied that the proposed development will not have significant effects on the environment and that any uncertainty must be resolved in favour of requiring an EIA. I also reject the contention that there is a low gateway or threshold for the application of the EIA regime. Of course it is important, in view of the objective of the Directive that a lawful decision is made as to whether an EIA is required; but I do not think that any gloss is required on the provisions of the 1998 Regulations” “52. The straightforward position is that under the regulations EIA is required if a non-exempt development of a Schedule 2 description “would be likely to have significant effects on environment by virtue of factors such as its nature, size or location”

“11.132 The overall impact of the proposed development on water quality and hydrology once the appropriate mitigation measures have been incorporated is considered to be insignificant. 11.133 The quantity and quality of discharges from the packhouse will not change as a result of the rationalisation proposals and therefore the existing discharge consent will remain unchanged. In this regard the site rationalisation proposals will not affect the discharges to the Eastern or Western channel of the Bourne Rivulet.”

“Environmental Change without the Proposals 11.56. As discussed above, there have been some issues in the past regarding biological water quality in the Eastern Channel. However, recent improvements shown in Table 11.2 have led to a reduction in the levels of nutrients, sediment and PEITC entering the Bourne Rivulet which has caused an improvement in biological water quality as evidenced by the water via quality monitoring. Relevant Proposals 11.57. The development proposals will not lead to an increase in the amount of ground water being abstracted. In addition the proposals will not affect the volume or quality of the water being discharged into the Bourne Rivulet as the proposals do not include any increases in the rate of production.”

“11.132. The overall impact of the proposed development on water quality and hydrology once the appropriate mitigations measures have been incorporated is considered to be insignificant. 11.133 The quantity and quality of discharges from the packwater will not change as a result of the rationalisation proposals and therefore the existing discharge consent will remain unchanged. In this regard the site rationalisation proposals will not affect the discharges to the eastern or Western Channel of the Bourne Rivulet.”

“the submitted ES at chapter 11 provides a full description and review of the current baseline aquatic ecology and water environment and an assessment of the impacts of the proposed development. It concludes that the overall impact of the proposed development on water quality and hydrology once appropriate mitigation measures have been incorporated is considered to be insignificant. The proposed development will not, by itself, lead to changes in the quantity or quality of water discharged from the site or any significant changes in the quantity of green waste, agricultural waste or packaging waste arising at the site. It is considered that the assessment provided at chapter 11 of the ES remains accurate and does not need to be updated.”

“9.86. The proposed development at Lower Link Farm will not lead to an increase in productive floor space within the pack house building. The proposals will therefore have no permanent traffic related impacts upon the surrounding road network over and above those already identified for the baseline conditions. 9.87. On this basis, therefore, there would be no permanent traffic impacts as a result of the operation of the proposal.”

“9.95. There are no other planned developments in the area that are likely to have effects in combination with the proposals.”

“52… It is only significant effects that bring a development within the scope of the EIA regime; minor environmental effects do not do so, though all such effects may fall to be taken into account in the normal way as material considerations (see the observations of Sullivan J in Milne e.g. at par 113 in relation to the details to be included in an environmental statement where an EIA is required). It is for the authority to judge whether a development would be likely to have significant effects. The authority must make an informed judgment, on the basis of the information available to it and having regard to any gaps in that information and to any uncertainties that may exist, as to the likelihood of significant environmental effects. The gaps and uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effects. Everything depends on the circumstances of the individual case.”

“Put simply, it will not.”

“This proposal will not add productive floor space.”

“At present, the Council’s position is that the use of the site is a mixed agricultural/industrial use with the industrial element predominant this [sic] that this use has occurred for more than ten years and would therefore be likely to be immune from enforcement. Independent legal advice to the Council is that there is an established use at the site without any limit, either in respect of the amount of watercress that can be grown or in respect of the salad that can be imported or processed. This is the Council’s considered view on the basis of the site having been deemed, by the Council, to have acquired the lawful use of mixed agricultural/ industrial use with the industrial element predominant. The Council position is set out in the Committee report and the Defendant’s summary grounds. I trust this adequately confirms the Council’s position.”

“64. As to that submission, it is clear from settled case-law that under the principle of co-operation in good faith laid down in Article 10 EC the Member States are required to nullify the unlawful consequences of a breach of Community law (see in particular Case C-6/60 Humblet [1960] ECR 559, at 569, and Joint Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357, paragraph 36). Such an obligation is owed, within the sphere of its competence by every organ of the Member State concerned (see to this effect Case C-8/88 Germany v Commission [1990] ECR I-2321, paragraph 13). 65. Thus it is for the competent authorities of a Member State to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment (see to this effect Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraph 61, and WWF and Others, cited above, paragraph 70). Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of the Member States, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided by Directive 85/337. … 67. The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle or of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness) (see to this effect, inter alia, Case C-312/93 Peterbroeck [1995] ECR I-4599, paragraph 12, and Case C-78/98 Preston and Others [2000] ECR I-3201, paragraph 31). 68. So far as the main proceedings are concerned, if the workings of Conygar Quarry should have been subject to an assessment of its environmental effects in accordance with the requirements of Directive 85/337, the competent authorities are obliged to take all general or particular measures for remedying the failure to carry out such an assessment. 69. In that regard it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project in question to an assessment of its environmental effects in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered.”

“Article 2(1) of [the] Directive must necessarily be understood as meaning that, unless the applicant has applied for and obtained the required development consent and has first carried out the environmental impact assessment when it is required, he cannot commence works relating to the project in question, if the requirements of the Directive are not to be disregarded.”

“On behalf of the interested party, it is conceded that the change in the use of the Site to a mixed agricultural and industrial use with the industrial element predominant, found by the Defendant to have occurred no later than 2000 (b363), was ‘Schedule 2 development’ within the meaning of regulation 2(1) of the EIA Regulations 1999 [Schedule 2 Table 7b ‘Packing of Vegetable Products’] which was required to be screened for Environmental Impact Assessment (EIA) in order to determine whether it was likely to have significant effects on the environment by virtue of factors such as its nature, size or location (and so constituted EIA development) within the meaning of regulation 2(1) of the EIA Regulations).”

“70. The answer to the third question must therefore be that under Art.10 EC the competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project as provided for within Art.2(1) of Directive 85/337.”

“24.… A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.”

“27. In other words, to achieve its proper purpose, [sic] does not exempt any project with those characteristics from assessment, with the result that,although the national public authorities have a wide discretion, Community law precludes implementation of such projects without prior authorisation and, if appropriate, without assessment of their impact, where implementation becomes irreversible with the passage of time. 28. That is precisely the effect of the United Kingdom system, which, as the case of the scrap yard over which these proceedings arose demonstrates, and as the defendant Government accepts, allows action to be taken in breach of the Directive, without prior evaluation or impact assessment, and to be legitimised by the passage of time so that the situation can no longer be remedied. 29. The analysis of the breach ought to end at this point, in the light of the prior admission; however, since the parties have become embroiled in a dispute as heated as it is pointless, I feel obliged to clarify a few matters. 30. It is of little importance whether the ground of the breach relates to the date on which the local authorities, in the exercise of their discretion, took no action or to the point in time when the LDC was issued, precluding any breach; it is of still less relevance whether the certificate in question is in the nature of a decision or is merely declaratory. The crucial point is that, for reasons of convenience, it was decided not to intervene and a situation in breach of [sic]arose, whereas, wide as the discretion of the administration is, it may not give rise to a result contrary to the central objective of the Community legislation set out in Article 2(1) thereof. 31. Without doubt, as the United Kingdom Government pointed out in paragraph 89 of its defence, reiterating paragraph 20 of its response to the reasoned opinion of the Commission, the discretion under discussion is not unfettered, since it would otherwise border on arbitrariness. Therefore, the competent authorities have to assess in each case whether to put an end to the breach because it unacceptably affects public amenity or whether, rather, it is necessary to allow the unlawful use of the property to continue in the public interest, despite its negative effect on the environment. However, the availability of that option reveals the breach complained of by the Commission, since it opens the door to situations where, weighing up the requirements at issue, 'the planning authority may decide to exercise its discretion not to bring enforcement proceedings. And it is here that any possible breach of the Directive could occur' (final part of paragraph 20 of the response to the reasoned opinion). 32. Therefore, the debate should not focus on whether it is appropriate for national legislation to provide for a limitation period for enforcement action in respect of breaches of Community law, such that, once that period has expired, no remedy is available, as a general principle entailed by the principle of legal certainty. Rather, it is a matter of analysing whether, regardless of the passage of time, the United Kingdom legislation allows the possibility that activities included in the first two annexes to [sic] might be carried out without approval and without the required consent; as we have already seen, that question must be answered unequivocally in the affirmative. 33. If those responsible for monitoring the lawfulness of town planning do not react on learning that a facility is operating without an assessment of its effects on the environment having been carried out, or, where its scale is evident, do not require its assessment, they are tacitly consenting to it and, thereby, contravening the Directive. The fact that, by reason of the passage of time and in the light of the principle of legal certainty, it was not appropriate to take enforcement action, does not make conduct which was previously on the margins of the law 'lawful'; it merely precludes any reassessment of the past in order to safeguard the stability of legal relations, which is one of the pillars of our co-existence in society. That conclusion does not preclude those harmed by the unlawful conduct from obtaining compensation on other grounds such as the responsibility of the State in breach to safeguard property rights, which the position of the United Kingdom Government would undermine. 34. In short, the obligation on the Community Member States to adopt the rules necessary to achieve the result sought by the Directive is binding on all public authorities under the third paragraph of Article 249 EC, so that national legislation which allows the administration to take no action and allow a project awaiting consent and assessment of its effects on the environment to be implemented without those assessments being made infringes Articles 2(1) and 4 of the Directive, as the United Kingdom Government accepts.”

“.… [t] proceedings against the Communities in matters arising from non-contractual liability shall be barred after a period of five years from the occurrence of the event giving rise thereto.”

“[12]… The Court has consistently held that, under the principle of co-operation laid down in Article 5 of the Treaty, it is for the Member States to ensure the legal protection which individuals derive from the direct effect of Community laws. In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of community law. However such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law… 14. For the purposes of applying those principles, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct procedure, must, where appropriate, be taken into consideration.”

“67. The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness).”

“23. The present case is plainly distinguishable from Simmenthal and Factortane and there is in my view no reason to extend the principles stated in those cases so as to afford protection to those who have not brought claims in the appropriate way and legal systems which afford them proper opportunities of doing so…. 24. In my view it does not follow from the primacy of Community law that a national court must in all circumstances set aside procedural rules which prevent a question of community law from being raised at a particular stage in the proceedings. What the primacy of Community law requires in the first place is a general rule that, when a national court is confronted with a conflict between a substantive provision of national law and a substantive provision of Community law, the Community provision should prevail. It is easy to see that, in the absence of such a general rule, Community law would be a dead letter. 25. But as regards procedural rules, the primacy of Community law does not require that they should be overridden in all circumstances so as to allow Community law to enter the arena at any stage in the proceedings. As the Court’s case-law has shown, it is sufficient that individuals are given, by the national procedural rules, an effective opportunity of enforcing their rights. 26. It is true that the public interest in the proper application of Community law must be taken into account, as well as the interests of the parties. However, the approach consistently taken over the years by the Courts suggests that what is sufficient to satisfy the public interest in this respect corresponds precisely to the well established principles already referred to, namely the principles that national courts must ensure the enforcement of Community rights where they are invoked in national proceedings in accordance with national procedural rules; and that the national rules need only be disapplied where they make it impossible or unduly difficult for those rights to be enforced…. 27. Moreover, if the view were taken that national procedural rules must always yield to Community law, that would, as will appear below, unduly subvert established principles underlying the legal systems of the Member States. It would go further than is necessary for effective judicial protection. It could be regarded as infringing the principle of proportionality and, in a broad sense, the principle of subsidiarity, which reflects precisely the balance which the Court has sought to maintain in this area for many years. It would also give rise to widespread anomalies, since the effect would be to afford greater protection to rights which are not, by virtue of being Community rights, inherently of greater importance than rights recognised by national law. It too, for example, can scarcely be argued that Mr van Schijndel’s and Mr van Veen’s putative right under Community law to choose their own insurance scheme is more important and merits greater protection than, for example, the right of a plaintive to recover damages for personal injury. 28. To recognise this is not to underestimate the importance of enforcement by national courts of Community law, or their duty under Article 5 of the Treaty to give full effect to Community provisions and to enforce rights conferred by Community law on individuals. Indeed, as I suggested in my opinion in BP Supergas Aonimos Etaira Geniki Emporiki-Viamichaiki Kai Antiprossopeion v Grease Case C-62/93[1995] All ER (EC) 684 & 687, national courts should interpret broadly the requirement that claims based on community law should be placed on an equal footing with claims based on national law. Moreover, the court will intervene to ensure that effect is given to Community law where specific national rules frustrate Community rights: see, in addition to the judgments in Simmenthaland Factortame, the judgements in Johnston,Emmottand Marshall II. 29. The assumption underlying the system established by the Treaty, however, is that the need for effectiveness and proper judicial protection can normally be satisfied by national remedies enforced through the national courts in accordance with the national procedural rules…”

“For the purposes of applying those principles, each case which raises the question whether a national procedural provision renders application of Community law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system such as protection of the rights of the defence, the principle of legal certainty and the proper conduct procedure, must where appropriate, be taken into consideration.”

“39.…To that end, Member States have an obligation to establish a system of limitation periods that is sufficiently precise, clear and foreseeable to enable individuals to ascertain their rights and obligations.”

"51. As I have noted in paragraph 17(iii) above, the Judge, in paragraph 48 of his judgment, distinguished Wells in that, there, the issue was whether an earlier permission could be revoked or modified rather than whether it could be treated as invalid, an issue that is expressly reserved by the third ruling in Wells to be a matter for national courts applying their own procedural rules. For convenience, I repeat here part of the Judge's words that I have set out: 'What the Court said in Wells about the obligation to nullify the consequences of a breach of the Directive is not to be taken as calling into question the validity of earlier decisions which are no longer open to challenge under domestic law.' "52. Mr Gordon [who appeared on behalf of the claimant] submitted that the Judge's ruling in that paragraph mis-characterised the European Court's ruling as giving overridding status to formal validity of earlier decisions by reference to member-state procedural autonomy. Such an outcome, he suggested, would render the ruling in Wells a 'dead letter'. He submitted that, on the contrary, the Court's reasoning in that case was that member-state procedural autonomy is subservient to the principle of effectiveness of EU law. This is how the Court put it at paragraph 70 of its judgment..."

"58. On the simple issue whether our domestic procedural rules infringe the EU principle of effectiveness by rendering the exercise of the relevant community rights 'impossible in practice or excessively difficult', my firm view is that it does not. It has to be remembered too that the European Court in Wells was simply concerned with EU law, not as to the position in national law; the conflict, if any, between the two was not resolved, because on remission of the case to the domestic court, the matter was resolved by a consent order. "59. In considering whether a national procedural provision renders application of community law impossible in practice or excessively difficult, it is necessary, as the European Court stated in Peterbroeck, at para 14, to look at its role in its domestic context and in the light of the basic principles of the domestic legal system, including the principle of legal certainty. As to domestic rules of limitation, the Court has upheld the importance of giving certainty to public decisions by holding that the application of reasonable time limits for challenging them does not infringe the principle of effectiveness; see Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, where the Court, at 1997, stated: 'Applying the principle of co-operation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law. Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such further conditions cannot be less favourable than those relating to similar actions of a domestic nature. ... In the absence of... measures of harmonisation the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules. The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect. This is not the case where reasonable periods of limitation of actions are fixed.'…. "61. Applying those principles to the facts of this case, if either of the two outline planning permissions required and/or were not the subject of valid screening exercise, there was a clear domestic remedy, if exercised promptly, for quashing either of them and/or the screening opinion at the leisure park outline permission stage. The domestic requirement of promptness in the exercise of the remedy, as Miss Robinson observed, strikes a reasonable balance between the need to provide a remedy and, in this instance, the public interest in the effective administration of planning controls and legal certainty. Accordingly, in my view, this challenge to the reserved matters screening opinion was not deprived of effect by the Council's reliance on the formal validity of the outline permissions and the screening opinion in relation to the latter, since they had been challengeable by judicial review, if sought promptly - a sufficient remedy as a matter of community law." 57 That decision is binding upon me unless it can be distinguished. Mr Purchas submitted that in the passage in Wells, cited by Auld LJ in paragraph 52 of his judgment, the European Court was dealing with the third question in that case, whether the state was under a continuing duty to remedy its failure to provide an EIA, and not with the fourth question, whether it was open to an individual citizen to challenge the state's failure to require an EIA. For present purposes, that is adistinction without a difference. There is no suggestion in Wells that individuals wishing to challenge a failure to require an EIA should not be governed by the procedural rules of each member state, provided that those rules must not render such a challenge impossible in practice or excessively difficult. 58 In the present case there was no good reason why the three month time limit was not observed in respect of the permissions and consents granted between March 2003 and September 2004 and no good reason why the decision of 7th December 2004 was not challenged until 4th March 2005.” "51. As I have noted in paragraph 17(iii) above, the Judge, in paragraph 48 of his judgment, distinguished Wells in that, there, the issue was whether an earlier permission could be revoked or modified rather than whether it could be treated as invalid, an issue that is expressly reserved by the third ruling in Wells to be a matter for national courts applying their own procedural rules. For convenience, I repeat here part of the Judge's words that I have set out: 'What the Court said in Wells about the obligation to nullify the consequences of a breach of the Directive is not to be taken as calling into question the validity of earlier decisions which are no longer open to challenge under domestic law.' "52. Mr Gordon [who appeared on behalf of the claimant] submitted that the Judge's ruling in that paragraph mis-characterised the European Court's ruling as giving overridding status to formal validity of earlier decisions by reference to member-state procedural autonomy. Such an outcome, he suggested, would render the ruling in Wells a 'dead letter'. He submitted that, on the contrary, the Court's reasoning in that case was that member-state procedural autonomy is subservient to the principle of effectiveness of EU law. This is how the Court put it at paragraph 70 of its judgment..." "58. On the simple issue whether our domestic procedural rules infringe the EU principle of effectiveness by rendering the exercise of the relevant community rights 'impossible in practice or excessively difficult', my firm view is that it does not. It has to be remembered too that the European Court in Wells was simply concerned with EU law, not as to the position in national law; the conflict, if any, between the two was not resolved, because on remission of the case to the domestic court, the matter was resolved by a consent order. "59. In considering whether a national procedural provision renders application of community law impossible in practice or excessively difficult, it is necessary, as the European Court stated in Peterbroeck, at para 14, to look at its role in its domestic context and in the light of the basic principles of the domestic legal system, including the principle of legal certainty. As to domestic rules of limitation, the Court has upheld the importance of giving certainty to public decisions by holding that the application of reasonable time limits for challenging them does not infringe the principle of effectiveness; see Case 33/76 Rewe v Landwirtschaftskammer Saarland [1976] ECR 1989, where the Court, at 1997, stated: 'Applying the principle of co-operation laid down in Article 5 of the Treaty, it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law. Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such further conditions cannot be less favourable than those relating to similar actions of a domestic nature. ... In the absence of... measures of harmonisation the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules. The position would be different only if the conditions and time-limits made it impossible in practice to exercise the rights which the national courts are obliged to protect. This is not the case where reasonable periods of limitation of actions are fixed.'…. "61. Applying those principles to the facts of this case, if either of the two outline planning permissions required and/or were not the subject of valid screening exercise, there was a clear domestic remedy, if exercised promptly, for quashing either of them and/or the screening opinion at the leisure park outline permission stage. The domestic requirement of promptness in the exercise of the remedy, as Miss Robinson observed, strikes a reasonable balance between the need to provide a remedy and, in this instance, the public interest in the effective administration of planning controls and legal certainty. Accordingly, in my view, this challenge to the reserved matters screening opinion was not deprived of effect by the Council's reliance on the formal validity of the outline permissions and the screening opinion in relation to the latter, since they had been challengeable by judicial review, if sought promptly - a sufficient remedy as a matter of community law."

“The Defendant is hereby ordered; To make an order under section 102 of the Town and Country Planning Act 1990 that the existing use i. be discontinued until the submission of an Environmental Statement relating to the existing use ii. then only resumed if, after consultation, the Local Planning Authority considered the existing use acceptable iii. thereafter only be undertaken in accordance with conditions imposed by the Council.”

“The Defendant is hereby ordered; To make an order under section 102 [of the TCPA] that the existing use i. be discontinued until it has been screened and ii. then only resumed if, iii. either (a) the Council has decided that it is not EIA development, or (b) (1) after an Environmental Statement has been submitted relating to the existing use and (2) After consultation, the Local Planning Authority consider the existing use acceptable and (3) Thereafter be continued only in accordance with conditions imposed by the Council.”