The Court of Appeal has rejected a contention that the statutory immunity from enforcement conferred by s171B of the Town and Country Planning Act 1990 is incompatible with article 2(1) of the Environmental Impact Assessment (EIA) Directive and ought therefore to be disregarded.

The appellant argued that the time limit on an LPA’s ability to take enforcement action ought not to apply where EIA development (within the meaning of the Directive) had taken place without any screening or EIA ever having been carried out.

The appellant sought to rely on obiter comments from judgments including Ardagh Glass Ltd. V Chester CC [2009] EWCA Civ 961. However, these arguments failed to succeed because, as the Court observed, the cases cited by the appellant were concerned with situations in which the time limits for immunity from enforcement action had not yet expired and where a decision by the LPA not to enforce (within the time limits) might amount to a breach of the Directive.

By contrast, the appellant was contending that the LPA’s lack of power to take enforcement action after the expiry of the relevant time limit (in this case, 10 years) was a breach of the Directive.

The Court of Appeal upheld the order made by Mr Justice Stadlen and further highlighted that the appellant or anyone else in his position that had wanted to challenge the lawfulness of the industrial use of the site could have done so within the 10 year time limit as there was plenty to opportunity for this.

Permission to appeal to the Supreme Court was refused.

Lisa Cham