[2009] NPC 59

The Elton Works was designed to be the largest glass container factory in Europe, having formerly been a power station. The site, which is owned and had been developed by Q, straddles the border between two local authorities.

Q took a calculated risk in commencing development to construct the works in advance of the grant of planning permission. There had been a history of applications which Q assumed could be amended to give the consent it now required. An inquiry was held in 2006 which resulted in a refusal of permission. Q made a retrospective application in 2008, which the Secretary of State used her powers to direct the authorities not to determine.

It was common ground that the development was unlawful. However, the authorities took the view that the time for the issue of enforcement action would expire in April 2009. They further argued that the decision whether to issue enforcement action was at the sole discretion of the authorities.

The court found that the time limit for taking enforcement action (four years in the case of operational development) runs from the date of "substantial completion" of the development. However, where the development is on a large scale, is complex and has a number of different elements, the time for enforcement action may run from the completion of one of those elements and not from the substantial completion of the whole development.

The court ruled that the authorities were in error in their consideration of whether it was expedient to issue enforcement action. It made a mandatory order to both authorities to issue enforcement notices within 14 days of the judgment (i.e. by 22 April).

This is a highly unusual step for a court to take, and some commentators have questioned whether the judge had the power to make such an order. It remains to be seen whether the decision will be appealed.

A second issue in the case concerned whether the authorities or the Secretary of State could lawfully grant planning permission for the development. The judge held that there was nothing to prevent the grant of retrospective permission, whether by the Secretary of State or the authorities.