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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Evans, R (on the application of) v Basingstoke And Deane Borough Council [2013] EWHC 899 (Admin) (19 April 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/899.html Cite as: [2013] WLR(D) 150, [2013] EWHC 899 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/04/2013

Mr Justice Stadlen :

1. This is a claim for judicial review of a decision by the Basingstoke and Deane Borough Council ("the Council") on 4 October 2010 to grant planning permission for a proposal to develop a site owned by the applicant, Vitacress Salads Limited, the Interested Party ("Vitacress").
2. The site is located at a watercress farm at Lower Link Farm, St Mary Bourne near Andover owned and operated by Vitacress. It is within the North Western Downs Area of Outstanding Natural Beauty. As well as a watercress farm there are also on the site buildings used by Vitacress for sorting, washing and packing vegetables and salads for sale to customers. Initially this second use of the site related only to watercress grown on site but gradually it grew to incorporate watercress grown elsewhere and then salads and vegetables grown elsewhere which are transported to and from the site by road. Operations at the site extract water from the aquifer at the source of the Bourne Rivulet and discharge waste water back into the Bourne Rivulet which itself runs into the River Test which is a Site of Special Scientific Interest.

THE TERMS OF THE PLANNING PERMISSION

3. The Council by its Planning Committee granted planning permission subject to conditions for the following development at site:

"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."

Condition 28 was in the following terms:

"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."

4. Condition 28 is of importance in this claim for judicial review. The main part of the existing buildings housed packing machinery used for packing watercress grown on site and watercress and other salads brought to site after they were washed. Although the new building to the north of the existing building for which planning permission was granted was subject to condition 28 the main part of the building was not. Neither were the three new intake bays to the north east of the existing building. The effect of condition 28 was thus that while neither Vitacress nor any subsequent owner would be permitted to increase the level of production at the site by putting packing machinery or other packing processes into the new enclosed storage area to the north of the existing building, they would not be prevented from doing so by using the new enclosed covered storage area for purposes for which currently part of the adjacent north area of the existing building was used, thereby freeing up or liberating, as it was described at the hearing, that space to accommodate additional packing machinery. Nor would it prevent the new intake bays being used in a similar fashion.
5. The Claimant ("Mr Evans") was one of those who, in the consultation process held by the Council before the decision was taken, objected to the proposed development on environmental grounds. The principal concern was that the proposed development might lead to an increase in production at the site which in turn might lead to pollution of the Bourne Rivulet and the River Test by increased levels of discharge of effluent and the discharge of effluent of a particularly harmful kind and to increased levels of road use by industrial vans or lorries. Vitacress responded by stating that the proposed development would not lead to an increase in production.
6. Mr Evans challenges the decision to grant planning permission on a number of grounds. One was that the Council treated inconsistently the 2008 proposal which led to the grant of permission in 2010 and a prior proposal made in 2003 for which permission was granted, albeit subsequently quashed in earlier judicial review proceedings on the ground that the Council had failed to carry out an Environmental Impact Assessment ("EIA") screening opinion. That ground was abandoned in the course of the hearing. Although there were four remaining grounds in reality two of them were closely related and I deal with them together. The first ground was that the Council unlawfully directed itself that it was not able to control by condition the level of operations in the existing buildings on site. The second and third grounds were that the Council failed properly to assess the likely effects of the development, including both indirect effects and the cumulative effects of the pre-existing activities on the site and those flowing from the permission if granted. This was said to be a breach of the Town and Country Planning (EIA) Regulations 1999 ("the Regulations") and Directive 85/337/EEC as amended ("the Directive").
7. Mr Evans has an additional challenge to the failure of the Council to take enforcement action against what he alleges is the unlawful existing use of the existing buildings. He contends that the existing facility constitutes an EIA project and that the existing industrial use of the site as a packhouse is unlawful because no EIA has ever been carried out in respect of it as required by EU law and in particular Article 2 (1) of the Directive. His response to the contention by the Council and Vitacress that the existing uses are immune from enforcement and thus lawful by reason of the expiry of 10 years since the existing use began pursuant to sections 171B and 191 (2) of the Town and Country Planning Act ("TCPA"), is that if and to the extent that that contention is correct, it would be necessary to disapply section 171B in accordance with principles established by the European Court of Justice ("the ECJ") in case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629.

Ground One: A failure to control the level of operations of the site by the imposition of condition(s).

8. Mr Evans contends that the Council unlawfully directed itself that it was not able to control by condition the level of operations at the site. As a matter of law he submits that, as was accepted at the hearing by Vitacress, it was lawfully open to the Council to impose conditions controlling any increase in the level of production at the site. As a result of that misdirection the Council he submits failed to take into account or consider whether such conditions should be imposed. The need for and/or appropriateness of such conditions were a material factor which the Council was obliged to address its mind to and had it done so it cannot be ruled out that it might have decided to impose such conditions. As a result the decision to grant planning permission was unlawful and should be quashed.
9. It is Mr Evans' case that the nature of the permission proposed to be granted was such that it was at the very least capable of leading (a) to increased levels of production at the enlarged site with consequent adverse effects on the discharge of pollutant effluents into the Bourne Rivulet and therefrom to the River Test and (b) to a significant increase in road traffic by industrial vans and lorries. The increase to the levels of production could come about in any or all of the following ways. First it would be possible for Vitacress or a subsequent owner or user of the enlarged site to move out existing storage functions from the area in the existing packhouse adjacent to the new northern storage area extension into that extension, thereby freeing up or liberating space in the existing packhouse for new processing-related functions, in particular packing machinery. Although any increase in the level of production caused thereby would result from an increase in production in the existing building which was not subject to existing planning restrictions and would not be covered by Condition 28, it would result indirectly from the grant of permission to erect the covered storage area to the north of the building. In addition in a plan of the proposed development submitted by Vitacress a rectangle inside the existing packhouse was marked "packing", whereas in the plan of the existing site it was unmarked, thus indicating that a part of the proposal was to introduce some packing related process into the rectangle which was not currently there which might add to productivity.
10. Second the expanded intake rooms at the extended area of the northeast side of the existing packhouse building could be used to house the return of the inspection facility from Vitacress' site at Amesbury, to which it had been transferred some years earlier. That transfer had been proposed before the prior 2003 application for planning permission on the basis that it would reduce raw material traffic from the St Mary Bourne site by around 30%, the inference being according to Mr Evans, that were the inspection facility to be transferred back to Bourne it might lead to a similar increase in the volume of traffic, especially HGV traffic. The area concerned was not subject to Condition 28. Third that area could also be used for a major increase in raw material storage space to overcome an existing bottleneck in that space so that much larger consignments could be handled and processing rates increased accordingly.
11. In a witness statement prepared for these proceedings Mr Evans submitted that the question whether these consequences could or would flow from the grant of permission without attaching conditions is objectively founded and yet details of them were not provided to the Council's planning committee.
12. Mr McCracken QC, who with Mr Westaway, appeared on behalf of Mr Evans, submitted that the decision to grant planning permission was vitiated by the alleged failure of the Council to take account of the possibility of increased production arising in any of the ways described. There were he submitted two reasons why the Council did not take it into account. First the relevant facts were not drawn to the attention of the planning committee, which took the relevant decision on behalf of the Council. Second the planning committee was misled by the report prepared for it by its officers into thinking that it was not lawfully open to the Council to impose conditions restricting the use of existing parts of the site buildings.
13. Planning permission was granted on 4 October 2010 following a decision of the Council's Planning Committee taken on September 2010. A report was prepared for the members of that committee by Council officers. The report recommended that permission should be granted subject to certain conditions which included Condition 28 but did not include conditions restricting levels of production in existing parts of the site.

The Officers' Report to the Planning Committee

14. In his skeleton argument Mr McCracken submitted that the Council unlawfully directed itself that it was not able to control by condition the level of operations at the site. This was based on a passage in the Officers' Report dated 18 August 2010 which stated that "the Council does not have the legal power to control the existing use." and a further passage which stated "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." Those passages were said to be seriously in error. They did not reflect the terms of sections 72 (1) (a) of the Town and Country Planning Act 1990 ("the 1990 Act") which provide that conditions may regulate the use of land under the control of a developer "whether or not it is land in respect of which the application was made". Nor did they reflect the principle derived from the authorities that a condition may be imposed on existing land which is not the subject of an application for planning permission provided that it fairly and reasonably relates to the proposed development for which permission is sought.
15. In oral argument Mr McCracken developed this criticism of the Officers' Report in two ways. First he submitted that it misstated the legal test which the councillors on the Development Control Committee (the Committee charged with deciding whether to grant planning permission) ("The Committee") had to apply. Alternatively he submitted that if and to the extent that the passages referred to were intended to reflect the correct legal test they failed to do so in that they must by implication have been based on the premise that in order for a condition fairly and reasonably to relate to the proposed development it is not sufficient that the use of the existing site which the condition would be designed to prevent was one which could as distinct from would result from the proposed development. Accordingly the Committee failed to consider, as it should have done, whether a condition would be justified on the former basis.
16. Mr Mould QC, who appeared together with Mr Keen on behalf of Vitacress, and Ms Parry who appeared on behalf of the Council did not accept that the Officers' Report mis-stated the legal test which had to be applied by the Councillors. They relied on the judgments of Pill LJ and Judge LJ in Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council , Persimmom Homes (Yorkshire) Limited [1997] [EWCA Civ] 4004 for the proposition that when considering advice in a report to councillors the overall fairness of the report in the context of the statutory test must be considered and that an application for judicial review based on criticisms of the planning officers' report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken. I refer to Oxton Farms in more detail below.
17. Seen both in the context of the parts of the report in which they appeared and in the wider context of the report as a whole they submitted that the passages relied on by Mr McCracken neither mis-stated the law nor were based on the false premise alleged by Mr McCracken, and that there is no warrant for a conclusion that the Committee failed to consider whether a condition would be justified on the basis that the proposed development could as distinct from would lead to an increase in levels of production on the existing site.
18. In a closing speaking note Mr McCracken QC submitted that his criticisms of the Officers' Report satisfied the test laid down by the Court of Appeal in Oxton Farms. He posed the question:

"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?"

His answer to his own rhetorical question was:

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

In support of this submission he relied in addition on a passage in the report in which it was stated that "… in the light of the advice received officers have concluded that it would not be reasonable or lawful to impose a condition on a planning consent to limit the existing established mixed use of the site."

19. Mr McCracken submitted that this statement was misleading and incorrect in law. It would only be unlawful to impose a condition if no reasonable planning authority could impose it and the passage cited amounted to advice to the councillors to the effect that no reasonable planning authority could reasonably decide to impose a condition. That advice was wrong, as he submitted was implicit in the concession by Mr Mould and Ms Parry that councillors could lawfully have decided to impose a condition.
20. In order to consider these competing submissions it is necessary, in the light of Oxton Farms, to have regard to the report as a whole. In reaching my conclusions I have considered the report as a whole, and in particular those parts of it dealing with the environmental and traffic implications of the development and the officers' discussion of the issue of conditions, with great care. For present purposes it is I hope sufficient to draw attention by way of fairly extensive summary and quotation to the following parts of the report.
21. The first page of the report recorded that Councillor Watts (a local councillor who was not on the Committee) had requested a viewing on the ground that the sheer scale of the development justified a visit by panel members before the application was considered. An update report which was available to the Committee at the adjourned decision meeting on 2 September 2010 included a short report of the site visit which I was told took place on 13 August 2010. That report recorded that members viewed various elements of the proposal noting the position and proposed external appearance of the proposed works and asked questions of Vitacress and its agent on the proposed extensions and alterations in order fully to understand their visual appearance and impact.
22. At the top of the front page of the main report there was a link to the Council's website which contained details of the application, supporting plans and documents in support of the application including Vitacress' Environmental Statement ("the ES") and an addendum to the ES. Members of the Committee also had access via their political assistance to an internal case management system that allowed them to view all the objections to the application including the representations made by the Claimant and further documents on the application such as correspondence with Vitacress. That system could also be accessed by members of the Committee using a computer at the Council's reception.
23. Having set out the proposal for which Vitacress sought permission the report identified traffic generation and water environment policies as among the issues raised by the application. It recorded that an addendum to the Planning Supporting Statement ("the PSS") and the ES together with additional plans including of existing and proposed process flow had been received on 30 November 2009. The report stated that the Council had re-consulted on the additional and revised information on 9 December 2009.
24. The existing plan showed the existing process flow in the main packhouse building. The existing process flow showed that both the intake and the dispatch areas outside and to the north of the main packhouse building where unloading and loading manoeuvring took place constituted a break in the cold chain. Inside the packhouse building the process flow comprised intake storage followed by a washing area and then arrows marking lines of in-process chilling followed by packing and finally dispatch marshalling. A rectangle inside the packhouse was marked but showed no identified use.
25. The plan showing the process flow in the proposed development showed intake bays in an enlarged and covered area of the packhouse building to the north east, an enclosed dispatch area with nine arrows, (presumably representing dispatch bays) to the north west of the packhouse, a new covered and enclosed storage area to the north of the packhouse building largely adjacent to the rectangle inside the packhouse and the word packing inserted into the rectangle. There was much discussion about these plans at the hearing.
26. Having described the site as an existing watercress farm and processing and packaging plant of perishable goods located to the west of the B3048 that goes through the village of St Mary Bourne within the Area of Outstanding National Beauty, the report described the site as extending to 16.9 hectares, most of which was made up of watercress beds and other agricultural land and a complex of buildings extending to approximately 7, 500m² .
27. The report drew attention to the fact that the application was accompanied by an ES and having identified the discrete elements of the proposed development it summarised each of them together with the business case for the development. VSL was described as a vertically integrated company which retained complete control of every aspect of its business from the growing of the salad products, their delivery to Lower Link Farm, their processing and packing and onward distributions to customers. The perishable nature of its salad products meant that it was unable to produce and then store its products, which had to be picked, chilled, inspected, washed, fixed, packed and delivered to customers all within a short time frame. The salad leaves arriving at Lower Link Farm were principally delivered from VSL's existing cold store at Amesbury, where they were inspected and picked into batches, ready sorted for each wash line within the packhouse at Lower Link Farm. A shuttle service bought those materials to Lower Link farm on a "just in time" basis.
28. The business case was described in the following terms:

"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."

29. The proposals for the new intake bays, despatch bays and the covered and enclosed storage were described as follows;

"Intake Bays

Three sealed intake bays are proposed, 24m in width (max) and 48m long with a ridge height of 6.9, are proposed on the eastern elevation of the existing building to allow unloading directly into the packhouse. This area will include space for the storage of green waste awaiting collection for composting and space for the washing of plastic crates prior to re-use. Materials and design will match the existing building. Part of the existing watercress bed will be removed to facilitate the construction of the intake bays, relocation of the existing refrigeration condensers, water tank and pump house."

30. There followed a chronology of relevant planning history setting out the incremental extensions to the processing plant at the site for which planning permission was granted (or in one case refused and in two cases withdrawn) between 1983 and 2007.
31. The report contained a summary of views expressed by various bodies and individuals in the course of consultation.
32. It was recorded that the St Mary Bourne Parish Council objected to the proposals. It was said to be of the opinion that the Vitacress operation was not agricultural and constituted industrial process. It was said to be its opinion that any expansion at the site particularly to the loading bays and vehicle workshops would lead to an unacceptable increase in the volume of traffic on the already over-used rural roads.
33. Hurstbourne Priors Parish Council was also recorded as objecting. Among the reasons cited were the following:

"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."

34. The report summarised the response of the North Wessex Downs Area of Outstanding Natural Beauty ("NWDAONB") to additional consultation. Among its concerns were said to be the risk of increased production and staffing, despite what had been said in the application, and the routing of HGVs. It requested that should the Council be minded to support the application conditions should be applied to control lighting and noise and that legal agreements should be entered into to limit staff numbers/vehicle numbers to the existing level and to control the route of HGVs. If those concerns could not be resolved with the applicant the NWDAONB objected to the application.
35. It was reported that the Environmental Agency ("the EA") had no objections to the proposal in the original consultation subject to comments and conditions. The EA noted that there had been concerns in the past that activities on the site had been having a detrimental impact on the Special Site of Scientific interest ("SSSI") downstream from the Bourne Rivulet. The EA remained concerned that the site plans appeared to show that the areas currently occupied by a diesel storage area lorry wash and workshops were to be redeveloped. Those uses might have potentially caused contamination of underlying soils and ground water and the EA had to take a precautionary approach in respect of recommending a number of conditions. As to surface water quality the EA commented that there should be no impact on water quality of the Bourne Rivulet provided the mitigation measures set out in section 11 of the ES were implemented correctly. As to the protection of ground water quality further work would be required which could be secured by conditions. As to biodiversity the ES provided an appropriate assessment of the impact which the development would have on the local ecology. Concerns about the effect of Vitacress's operations on the aquatic invertebrate community, and the steps taken to address that were recorded but the proposed works were unlikely to affect that and the EA had no undue concerns in respect of biodiversity. A condition was suggested in respect of the biodiversity enhancement proposals. Under the heading of flood risk and water resources it was recorded that chapter 11 of the ES stated that the redevelopment would not intensify the production volume of the site or require increases in water abstraction. The EA proposed conditions on foundation designs to ensure that surface water could be effectively attenuated and discharged at appropriate rates. Various conditions were sought.
36. A further letter from the EA in response to detailed third party comments was summarised. I was told that those third party comments included comments made by the Claimant. The summary stated that the EA position remained as set out in their original response. The suggested conditions would reduce the impact of the development in respect of EA roles and responsibilities. The EA noted that the ES said that there would be no increase in water abstraction or effluent produced as a result of the application. The EA noted that discharge of effluent to the Bourne Rivulet was controlled by consents, the first of which was after an NRA prosecution in respect of chlorine discharge. The use of chlorine had now stopped, reducing the quantity of solids discharged and the impact of salad washings which were known to be toxic to gammarus (fresh water shrimp). There had been measurable improvements to the invertebrate fauna of the Bourne Rivulet as a result of the measures taken. The EA evidence showed that discharges from the Vitacress site were not having an impact on the River Test which was an SSSI. The EA had no evidence that the stock piling of composting watercress/stable/gravel mix which was subject to EA regulations was causing pollution of surface or ground waters and was working with Vitacress and others to help them investigate other reuse or recycling opportunities for that product. The EA was recorded as having no additional comments in respect of the additional consultation.
37. Southern Water was reported as having no objections subject to a condition in respect of surface water disposal. Natural England in both original and additional consultation was recorded as advising that the River Test SSSI was unlikely to be adversely affected by the proposed development provided conditions were attached to cover among other things storage of fuel and chemicals to reduce the risk of pollution incidents occurring into the Bourne Rivulet.
38. The Test Valley Borough Council Planning Department had no objections. The South East England Regional Assembly was recorded as not considering the proposals to be of regional significance and had no comment. The Hampshire County Council Planning Department had no comments. The only relevant comment attributed to the Hampshire County Council Environment Department was that while there were no records of protected species, further assessment regarding otter and water vole would be required before any works to the water course banks or adjacent to watercourses. The Council for the Preservation of Rural England Hampshire was recorded as having objected to the proposal on the ground that Vitacress' activities constituted an industrial not agricultural operation. No increase in its activities should be allowed and controls proposed by the Hurstbourne Priors Parish Council were supported. Hampshire County Highways did not object subject to a number of matters immaterial for present purposes. The local highway authority had no objection subject to conditions.
39. As to public observations in the original consultation it was reported that there were 53 letters of objections which raised a number of points which were summarised. They included:

"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's screening direction in respect of BDB55966 and are referred to in the Council's screening opinion on the current application."

BDB55966 was the application made by Vitacress in 2003 for a proposal which was broadly similar to that being considered by the Committee. The Council had granted the planning permission for that proposal but judicial review proceedings brought by the Claimant were compromised on the basis that Vitacress and the Council agreed that the permission should be quashed on the ground that there had not been a proper Environmental Impact Assessment ("EIA").

40. Among the 53 letters of objection summarised was a letter from the Claimant.
41. Under the heading response to additional consultation it was reported that there were 15 letters of objection reiterating previous objections and raising additional points including:

"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."

42. There followed an extensive review and discussion of relevant planning policies including paragraph 15 of PPS 23:

"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…"

43. The report summarised the planning history of the site in the following terms:

"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 letter invited the applicant to confirm preparation of an Environmental Statement but in the event no further progress was made with the application, which was eventually treated as withdrawn on 22 January 2007."

44. The report then addressed the lawful use of the site in the following terms:

"Lawful Use of the Site

The Planning Supporting Statement (PSS) accompanying the application describes the existing operation of the site as lawful, being a long established agricultural operation, benefitting from a series of planning permissions. It considered that the site should be considered as agricultural land and buildings, and that the activities taking place constituted agricultural diversification and as such, there was no single policy in the Development Plan which would relate specifically to the development applied for although clearly a number of other area and subject specific policies would be relevant. In order to establish what the appropriate application of policy should be further information was sought from the applicants about the proportion of watercress which is grown on Lower Link Farm, and a breakdown of the different types of salad produce which are washed and packed at the site.

This further information was received in a letter dated 16/1/2009. That stated that, 'it is considered that by site area, the largest use on the site is agricultural. In terms of the scale of physical activity on the site, including traffic generation, the largest element relates to the diversified agricultural operations within the packhouse buildings (the washing and packing of salad products) and the accompanying headquarters offices of VSL. During relevant seasons however, the scale of agricultural activity relating to the growing and harvesting of salad products is very significant.'

Of the total amount of watercress handled on site, 15% is grown at Lower Link Farm and that watercress constitutes 15% of the total produce processed on the site. Therefore 3% of the total produce processed on site is grown at Lower Link Farm. The conclusion drawn is that the majority of activities involve the washing, mixing and package of salad stuffs not grown on-site and that this activity should be considered as an industrial process. Accordingly there are two planning activities taking place, industrial and agricultural, the majority of those relating to this application being an industrial process, although the agricultural activity remains – the farming and harvesting of watercress. Officers wrote to the agents in March 2009 to advise them of their view that the use of the site appears to have developed incrementally from its original use as a watercress farm with ancillary washing and packing facilities to mixed use as a watercress farm and an industrial facility (for the washing, mixing and packaging) of salad products. In view of the length of time that the activities appeared to have been carried on VSL were invited to submit evidence which might demonstrate that the stated uses had become established together with any comment they wished to make on the issue of existing or lawful use. This information was submitted, together with other additional and amended information on 30 November 2009 and a full re-consultation took place during December 2009.

Appendix A of the addendum to the Planning Supporting Statement (PSS) sets out a chronology of the development and use of the site.

Chronology of Activities

The submitted chronology of the use of the farm details the following key stages in the farm's activities:

• 1986 / 1987 - approximate date when the proportion of watercress imported to the farm exceeded 20% of the total watercress washed and packed on site

• 1988 - non-watercress salad leaves start to be imported to the site from elsewhere in the UK and overseas

• 1988 - potatoes start to be brought to the farm for wholesale

• 1989 - 1990 - approximate date when the proportion of watercress imported to the farm exceeded 50% of the total watercress washed and packed on site

• 1991 - 1992 - approximate date when the proportion of total salad products imported to the farm exceeded 20% of the total washed and packed on site

• 1992 - 1993 - approximate date when the proportion of total salad products imported to the farm exceeded 50% of the total washed and packed on site

Based upon the information submitted and summarised above, it is clear that the farm has been processing imported watercress and salad products for a considerable period of time, and that this exceeded 50% of the total salad products in the early 1990s. On this basis, and in the absence of any contrary evidence, officers consider that the importation of the majority of produce for washing and packaging is an activity which has continued in excess of 10 years and as such appears to have become established.

In the addendum to the PSS the 16/1/09 letter is again quoted and the agent states VLS's position at paragraph 4.8 'The site is considered to be a mixed (or composite) agricultural and industrial use, resulting from the farm diversification that has taken place functionally linked to the historic agricultural use of the site'.

Whilst the applicant considers that the current use of the site is firmly related to the original agricultural operation, it is considered that the degree of diversification that has taken place has taken it beyond a solely agricultural use, with ancillary operations. The application should therefore be considered on the basis of policies which relate to rural enterprise, rather than those that specifically support agricultural activities and diversification. It is acknowledged that this is a change of position to the one taken in respect of BDB 55966 where the Committee report variously commented that 'the site is an established foodstuffs packaging and production operation', 'the activities that take place are considered to be within the remit of agricultural diversification' and 'this is an existing commercial building on an established commercial site.' There have been some changes in the period since the previous application, although these mainly appear to relate to the chain of handling rather than the proportions of produce brought to site. The on-site produce is now transported to the central cold store at Amesbury and back to site for washing and packing.

Conclusions on Lawful Use

Officers consider that on the basis of the original and additional submitted information, both of which have been subject to full local consultation, and in the absence of any contrary evidence, it does appear that the use of the site is a mixed agricultural/industrial use with the industrial element predominant and this has occurred more than 10 years ago and would therefore be likely to be immune from enforcement. 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 amount of salad that can be imported and processed. If the appellant were to intensify the use it may be possible to enforce against this, although the concept of change of use through intensification is notoriously somewhat difficult to enforce against. This conclusion has a significant impact on the potential scope for controlling the use through conditions or Section 106 agreement - this issue is discussed in detail under 'Consideration of Conditions and Limitations' below.

45. There followed a lengthy section dealing with environmental assessment. It was recorded that in response to a request the Council had issued a screening opinion on 5 July 2007. Having consulted with the EA and Natural England the Council had concluded that an ES would be required for the following reasons:

"Environmental Assessment

Screening

A request for a screening opinion (ENQ/20772) was sought from the Council in respect of this development in May 2007 and a screening opinion was issued on 5 July 2007. The Council consulted with the Environment Agency and Natural England and concluded that an Environmental Statement would be required for the following reasons:

'The site of the proposed development is located on the Bourne Rivulet which flows into the River Test Site of Special Scientific interest, located approximately 5km from the site. Given the nature of the proposed development and the existing activities which require groundwater abstraction and water discharge into the Bourne Rivulet, the Local Planning Authority consider that the development has the potential to harm the freshwater environment.

Furthermore, the site is located within the North Wessex Downs Area of Outstanding Natural Beauty whereby the development proposal and its visual impact on the scenic quality of the locality needs to be addressed. The Local Planning Authority has given careful consideration to the size, scale, location and characteristics of the proposed development including the possible cumulative impacts of associated development, having regard to the selection criteria in Schedule 3 of the Regulations and thereby determines that the proposed development is EIA development, requiring the submission of an Environmental Statement.'

46. In response to a request for a scoping opinion the scope of the ES was agreed by the Council in its Scoping Opinion of 14 January 2008. It was recorded as requiring information under a number of headings including traffic and highways, ecology and water environment, noise and vibration and impact on the conservation area.
47. The content of the ES was then described by reference to the various sections in it including the sections dealing with the issues scoped in the ES including traffic and highways, ecology, water and hydrology and noise.
48. There followed a section of the report dealing with the adequacy of the ES. It was reported that several objectors had raised concerns about the adequacy of both the ES as originally submitted and the Addendum in response to what was described as the Council's Regulation 19 request (I deal with Regulation 19 below) which sought further information from Vitacress' agent. It was reported that specific concerns had been raised that the ES did not make reference to the need to address "pollution" and "waste products" of the factory process which had been identified in the Secretary of State's scoping opinion on the 2003 planning application.
49. It was reported that the Council had sought legal advice on that and on the adequacy of submitted ES and has been advised that there was no requirement for its screening opinion to mirror the earlier opinion of the Secretary of State and that in any event a combination of the Council's scoping opinion and subsequent Regulation 19 request clearly required an assessment of the potential impact from waste production and pollution to be included in the ES. The following extract from Counsel's opinion was quoted:

"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."

If VSL are right in their assertion about whether the current applied for development has the potential to increase production, then it seems to me the scope of the ES is adequate for the purposes of the EIA regime.

In the circumstances I consider that the approach the Council have taken in the screening opinion was perfectly lawful, and that taking into account both the screening opinion, the scoping opinion and the Regulation 19 request the relevant information was requested and appears (unless there is any holes in the science) to have been provided."

50. Under the heading "Conclusion on the Environmental Statement" the following conclusion was reached:

"The submitted and supplementary ES are considered to fulfil the requirements of the scoping opinion and adequately address the issues raised in accordance with the EIA Regulations 1999. Legal advice to the Council is that in view of the applicant's assertion that the current development would not lead to any more operations being undertaken at the site then the scope of the ES is adequate for the purpose of the EIA regime. 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).

51. The report then detailed matters raised and responded to in the ES under the heading: "Other Material Considerations". Under the heading Transportation and Vehicle Movement reference was made to a Transport Assessment which accompanied the application for planning permission. It was stated that the Transport Assessment concluded that aside from temporary construction traffic there would not be an increase in operational traffic resulting from the proposed development. It was stated that Hampshire County Council Highways Development Control accepted that conclusion and did not raise any highway objection subject to securing a financial contribution towards certain safety improvements.
52. Under the heading "Amenity Considerations" it was said that a number of third party concerns were raised on grounds of noise, vibration and disturbance, linked both to count levels and concerns about future traffic levels and onsite operations including vehicle movements and site lighting. Many of those concerns were said to relate to fears about the future expansion of production resulting from the development, a matter which was dealt with elsewhere in the report.
53. Under the heading "Water Environment, Pollution and Ecology" attention was drawn to chapter 11 of the ES which dealt with water and hydrology and considered surface water and ground water quality and quantity and flooding issues. It was stated that further information in respect of water use and waste water were contained within the addendum to the ES submitted in response to the Council's Regulation 19 request. It was said that the ES considered the sensitivity of the aquatic receptors, an evaluation of the significance of the potential changes in water quantity and quality and mitigation measures, as appropriate. It was stated that the assessment concluded that the overall impact of the proposed development on water quality and hydrology would be insignificant once mitigation measures had been incorporated. That conclusion was said to be based on the premise that the quantity and the quality of the discharges would not change as a result of the development.
54. The Environment Agency was recorded as having no objections to the proposed development subject to a number of conditions and informatives detailed in their response to the consultation above. They accepted the findings of the ES in respect of biodiversity and suggest a condition to secure habitat enhancement as proposed. English Nature (sic) [English Nature is in fact now known as Natural England] was also recorded as having no objections to the development subject to conditions (as recommended).
55. Under the heading "Conclusion on Consideration of Material Planning Impact" it was stated that the assessment of the impacts set out in the report had led officers to conclude that the development was consistent both with national planning guidance and local planning policy with one exception. In highways and transport terms it was considered to be acceptable subject to conditions and a financial contribution. In terms of impact on the two Conservation Areas and the NWDAONB it was considered to be acceptable. In terms of local amenity considerations and specifically in relation to noise vibration and air quality it was considered to comply with the relevant policies. In terms of ecology, hydrology pollution and flood risk it was stated that both the EA and English Nature were satisfied that the development was acceptable subject to recommended conditions. It was considered to be consistent with relevant national policy guidance.
56. There followed a lengthy section of the report dealing with a consideration of conditions and limitations. Since that section goes to the heart of the Claimant's challenge under Ground One, I set it out in its entirety:

"Consideration of Conditions and Limitations

Any condition imposed on an application must fairly and reasonably relate to the permitted development. Circular 11/95 says that a condition ought not to be imposed unless there is a definite need for it and unless a condition fairly and reasonable [sic]relates to the development to be permitted, it will be ultra vires.

All the elements applied for in the planning application - intake and despatch bays, workshop, storage building and plant and facilities – some of which replace existing facilities, would support the existing site operations. The analysis in Section 5 of the ES of alternative development scenarios emphasises the fundamental link between the proposed facilities and the existing site operations and hence the need, in terms of operational requirements, for the different elements to be provided on this site, rather than elsewhere. Paragraph 5.14 makes it clear that the location of the packhouse operation at Lower Link Farm is essential to enable VSL to use the readily available supply of fresh spring water from boreholes for the washing of salad products. Similarly, the replacement of the workshop in situ rather than off-site is justified on the basis of the need to maintain speed of delivery to customers due to the perishable nature of the salad product handled on the site. Paragraph 5.25 of the Planning Supporting Statement states that each element of the application is locationally specific to Lower Link Farm, demonstrating a requirement for developing within this countryside location.

A key concern of local residents and interested parties is the degree to which the development for which planning permission is now sought might lead to the intensification and/or expansion of the operations at the site, to the point where existing impacts, which some third parties consider are already environmentally damaging, may increase. The most significant concern is traffic together with issues relating to water abstraction and water quality and ecological impact, but also include noise and light pollution. VSL's position on this is that the driver for this development is the need to close the existing breaks in the cold chain, which is a very high priority for VSL and its customers, and to reduce costs through removing unnecessary vehicle movements and handling of goods. VSL state (para 1.4 of the PSS) that

'It is important to note that the proposed development at Lower Link Farm will not lead by itself to an increase in the productive floorspace within the Packhouse. Improvements in efficiency do not equate to increased production. Increases in capacity could take place without the proposed development as there are no planning restrictions on the use of that capacity. What is proposed is a development which would enable improvement in product quality and reduction in costs, together with environmental benefits, but whether that leads to increased production depends on other factors such as market demand, seasonal production, weather conditions, etc. The proposed development will not result in an increase in traffic volumes to and from the site by the same reasoning.'

Officers are mindful of the fact that Vitacress is an existing commercial operation, and that the Council has to consider this application on its own merits and not seek to retrospectively apply controls to an existing, established, commercial operation. However, the Council has a responsibility to ensure that the actual and potential impacts of the development are properly considered. To that end, therefore, the Council requested further information from the applicant, through a Regulation 19 request which, amongst other things, sought an assessment of the degree to which the development applied for could lead to the capability for increased productive capacity at the site. In response to that request the applicant has stated that the development applied for will not lead to the capability for increased productive capacity on the site. They have stated (para 2.3.7 of the addendum ES):

'The productive capacity at the site is determined by the physical size of the area of the packhouse 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.

and (para 2.4.2 of the addendum ES) .

'The existing intake and dispatch operations, whilst inefficient in cost and environmental terms, are not a constraint on the productive capacity of the packhouse.'

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 Council has explored with the applicant a range of controls and limitations which might seek to address concerns about environmental impacts. The Environment Agency are not seeking monitoring requirements regarding water quality to be included as part of any planning controls and have said that they consider that should additional monitoring be required, this could be achieved through the current licence and consent process. The following controls and contribution have been agreed with the applicant, in principle:

• payment of a financial contribution to pay for a scheme of safety improvements at the Harrow Road railway bridge"

• a lorry routeing agreement for existing and construction traffic

• a limit on the use of the proposed covered storage area to storage uses only

• a limit on the use of the proposed workshop to agricultural and vehicle maintenance and fabrication associated with the on-site operations only

• a limit on the hours of use of the proposed workshop, apart from emergencies

The Council has further explored with the applicant a condition which would limit the proposed development to be ancillary to the established use of the site for the growing of watercress and the storage and packing of watercress, baby leaf and salad products. Legal advice was sought on various wording options including the following;

'The use of the development hereby permitted, namely the 3 intake bays, dispatch bays, covered and enclosed storage area; agricultural and vehicle workshop; relocated plant, lorry wash and steam cleaning bay shall be limited to activities ancillary to the established use of the site for the growing of watercress and the storage, washing and packing of watercress, baby leaf and salad products and for no other purpose whatsoever unless otherwise agreed in writing by the Local Planning Authority.

Reason: The justification for the development is centred on the existing established uses on the site and the local access to a supply of spring water and an unrestricted commercial use in this sensitive location would be contrary to local and national policies of planning restraint.'

Legal advice to the applicants, which has been sent to the Council, is that, even if the condition were to be considered necessary within the terms of Circular 11/95, it unlawfully seeks to restrict the current lawful use because it specifies the existing use rather than referring to it as mixed 'agricultural/industrial'. The advice also states that given that there is an unrestricted mixed agricultural/industrial use on the site the use of the words 'unrestricted commercial use' in the draft reason, as a purported justification for restricting the development the subject of the current application, is both unwarranted and inappropriate.

Officers sought their own supplementary legal advice in respect of two alternative wordings to the condition. In her original advice, Counsel advised as follows:

'Therefore the background principle is that there is, to all intents and purposes, an unlimited use on the site. Limits can only be placed on the use of the site through the current application in so far as it is properly connected with the current application. This point rather goes to the heart of the difficulties in this case. The applicant maintains that the current application will not lead to any change or increase in the use of the site (either for industrial or agricultural use). As set out above there is no evidence to contradict that.

Therefore it seems to me that the conditions and any section 106 agreement attached to the current application can only relate to the impacts of the applied for buildings and not to general impacts from the current or any increased use of the site. I anticipate that this will mean in practice the limits that can be placed on the use are relatively limited, unless the Council can satisfy itself that there will be some increase in use in relation to the buildings applied for, or that the buildings themselves will have some impacts.'

In applying the Circular tests, Counsel has expressed concerns as to whether the condition would be necessary - i.e. would the development have to be refused in the absence of the condition. The advice states,

'I understand the Council's desire to try and prevent an independent commercial use at the site as a whole. However I do not see how an independent commercial use could be established in the extended areas which does make me question the necessity of the condition. The condition is essentially attempting to prevent an independent commercial use of the site as a whole through the condition.'

In commenting on whether the condition would be reasonably and fairly related to the development to be permitted, Counsel reiterated her original advice and quoted from Circular 11/95 as follows:

'Relevance to the Development to be Permitted

24. Unless a condition fairly and reasonably relates to the development to be permitted, it will be ultra vires.

25. Thus it is not sufficient that a condition is related to planning objectives: it must also be justified by the nature of the development permitted or its effect on the surroundings. For example, if planning permission is being granted for the alteration of a factory building, it would be wrong to impose conditions requiring additional parking facilities to be provided for an existing factory simply to meet a need that already exists, and similarly wrong to require the improvement of the appearance or layout of an adjoining site simply because it is untidy or congested; despite the desirability of these objectives in planning terms, the need for the action would not be created by the new development. Nevertheless it is proper for conditions to secure satisfactory access, for example, or parking facilities, genuinely required by the users of the proposed development. Conditions can also be proper where the need for them arises out of the effects of the development rather than its own features; where permission will result in intensification of industrial use of a site, for instance, a condition may be necessary requiring additional sound-insulation in the existing factory buildings. It may even be justifiable to require by condition that an existing building be demolished-perhaps where to have both would result in the site being over-intensively developed.'

Counsel went on to refer to two cases, Kingston-upon-Thames Royal London Borough Council v Secretary of State for the Environment and Another [1973] 1 WLR 1549 and Penwith District Council v Secretary of State for the Environment and Another (1977) 34 P & CR 269. Both cases dealt with the issue of limiting existing use rights through conditions attached to planning permissions. In the Penwith case, conditions to limit hours and noise were considered acceptable because the purpose of the development applied for was to allow for the extended working of the original factory. Counsel's advice to this Council is;

'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. The fact that the condition is specifically limited to the use of the proposed extension seems to me must mean it is sufficiently connected to the proposal itself.

I should make it clear that I have not changed my earlier view. Unlike the Penwith case I do not think that there is any justification for attempting to place limits on the existing use of the remainder of the site because of the new development. I understand officers have accepted the appellant's argument that the new development will not allow them to increase throughput and as such there can be no basis for seeking to limit the currently unlimited use of the remainder of the site.

Therefore as phrased I have no concerns either on alternative 1 or 2 on the question of connection with the development permitted. The concern in both cases relates to the necessity for and the effectiveness of the proposed conditions.'

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. In the circumstances and in the light of the advice received, officers have concluded that it would not be reasonable or lawful to impose a condition on a planning consent to limit the existing established mixed use of the site. Controls and limitations on the different elements of the development applied for as set out above are considered to be justified and consistent with Circular advice and should be imposed on any grant of permission."

57. Under the heading "Conclusion" the report stated its several conclusions on the application in the following terms:

"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. …"

58. The report then gave six reasons for approval including the following:

"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."

59. The report concluded by recommending that the applicant be invited to enter into a planning obligation/legal agreement with the Council to secure contribution to the Basingstoke Environmental Strategy for Transport and Lorry Routing and that the application be granted subject to referral to the Secretary of State subject to a number of conditions. I have already quoted condition 28. Condition 24 was in these terms:

"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."

Additional Factual Background.

60. In written objections to the proposed planning application addressed to the Council dated 6 January 2009 Mr Evans referred to the 2003 application which he said was essentially the same as the 2008 application save that the latter omitted originally proposed offices. The documentation in support of the former projected 10 per cent year on year production increase which by 2008 was anticipated to lead to a 29 per cent increase in lorry movements. He said that it was claimed at the time that the proposals would not in themselves lead to increased production. That would be met by the installation of additional wash/pack lines within the buildings which would not require planning permission. It was now apparent that those additional wash/pack lines had been installed in the intervening years. Those additional pack lines must have taken up previously available internal floor space.
61. Mr Evans submitted that it was clear that the present factory layout, with its full complement of lines could not possibly operate at maximum capacity without the additional loading/unloading bays and covered floor space now proposed. Therefore he submitted that the 2008 application, if approved, would directly lead to the capability for increased production and associated traffic and waste production. He referred to the fact that the 2003 application proposed that the increased internal space would enable the eventual relocation back to the site of the pre-sorting currently carried out at Amesbury. He submitted that it must be presumed that this would again be possible under the current proposal, again leading to increased traffic movements due to the loss of "consolidation" and pre-selection of "good material only" arriving on site.
62. These concerns were put to Vitacress by the Council.
63. The "Regulation 19 request" referred to in the Officers' report was contained in a letter from Ms Spink to Mr Blaxland, a consultant acting on behalf of Victacress dated 15 September 2009.

"Whilst the council notes your clients position regarding the adequacy of the submitted ES, additional information in the form of an addendum to the ES as originally submitted is sought under the above Regulations. [In fact there was no earlier reference in the letter to the Regulations.] It should include information on the raw materials used in the existing operations including the origin, quantity and type of product and an assessment of the potential impacts on the ecology and water environment. Information on the waste generated by the existing operations is also sought including details of the storage and treatment of waste and the potential impacts on the ecology and water environment.

Information on the past and current levels of production at Lower Link Farm, including seasonal variations in production is also sought. The Council further requests an assessment of the degree to which the development applied for could lead to the capability for increased productive capacity on the site."

64. Vitacress' response was contained in an addendum to the ES which had been previously served dated November 2009 "The Addendum". Paragraph 2.4 of the contents page stated: "An assessment of the degree to which the development applied for could lead to the capability for increased productive capacity on the site." In addition to the extracts from paragraphs 2.3.7 and 2.4.2, which were quoted in the Officers' Report the Addendum included the following:

"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."

65. In response to Vitacress' response Mr Evans, in further written representations dated 15 January 2009 (which I was told was a mistake and should have been 15 January 2010) drew attention to the fact that Vitacress repeatedly asserted that the application would not "… in itself…" lead to any increase in production. He asserted that the application was designed to streamline the site operations to maximise the ability to meet hoped for increase in customer demand. He further asserted that it was to be inferred that the proposal to build a huge covered store rather than simply putting loading doors onto the factory, which would have been the most cost effective way of closing the chill chain, was intended to enable production to increase and to relocate to the Amesbury operation to the site at Saint Mary Bourne. He therefore submitted that the Council should impose the tightest controls on the operation of Vitacress as it existed because Vitacress had made clear that at present there were no restrictions on their operations in terms of operating hours, production output, vehicular movement, water usage monitoring etc.
66. The Council's 2008 Environmental Impact Assessment Scoping Opinion dated 14 January 2008 referred to Paragraph 7.3 of VSL's scoping document which stated: "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 Opinion stated:

"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. "

To ensure clarity on this point, clarification is sought that the base line review that will be produced relating to the discharge (see paragraph 7.10 of the scoping report)) includes a detailed and precise analysis of how the proposed development will, directly or indirectly, cause or facilitate any changes to the quality of the discharged water whether or not such changes would comprise a breach of the discharge consent.

In particular potential changes in the concentrations of the particular chemicals and plant nutrients found in the discharge, water temperature and dissolved oxygen concentrations, (none of which are limited or regulated by the discharge consent), should be addressed"

67. In a witness statement dated 5 July 2011 Mr Evans estimated that the area of the northwest storage extension for which planning permission was sought at 2184 m2. However the area currently "marked external crates etc", which the 2008 Planning Support Statement said it was the objective of the extension to bring into internal storage, occupied only 1500 m2, leaving over some 684 m2 within the extension not devoted to external crates etc or storage. He asserted that that was more that enough space to house the functions such as plant store etc presently located in internal rooms along the northwest side of the existing packhouse thereby freeing up the floor space within those present "rooms" (544 m2) for production uses.
68. He further estimated the area of the northeast extension currently used for unloading as some 1152 m2, with 768 m2 of that area chilled and thus not partitioned off from the main part of the packhouse. Even allowing a generous amount of space for the three new intake bays plus ramp and forklift manoeuvring area, he estimated that that would create in the 768 m2 chilled area some 450 m2 of new cold storage intake space freeing up at least an equivalent amount in the former areas R38 and R50. Judging by what was said in the 2003 Planning Supporting Statement and Environment Statement he believed that that freed up space might be used to allow the lengthening of the packing lines and reintroduction of automatic inspection from Vitacress' site at Amesbury.
69. Mr Evans asserted that the Vitacress 2003 Planning Supporting Statement ("PSS") clearly indicated that processing activities in the packhouse would evolve and increase in scale as a result of the 2003 proposal for which planning application was sought.
70. He cited extracts from the 2003 PSS as follows

"1.11 It is anticipated that when supply chain improvements have been realised inspection and other intake [processes were moved back to the packhouse.

1.18 Longer term, when automatic inspection is technically feasible for all raw materials, the process will be moved back on site…

1.19 this change will increase the total length of the packing lines, requiring more space in the northeast direction…

2.12 in the longer term, when automatic inspection is technically feasible for all leaves, it will be important to relocate inspection back to Lower Link Farm."

71. Mr Evans stated that the inspection process referred to was currently undertaken off site at Amesbury and asserted that the 2003 PSS acknowledged an opportunity to relocate it to Lower Link Farm. He further asserted that the 2003 application envisaged a direct increase in the productive operation at the site:

"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."

72. Mr Evans further stated that the 2003 PSS stated that there would be expansion resulting from relocation of the offices and although relocation of offices was not included under the 2008 application the 2003 proposal demonstrated an intention to move out non-production functions where possible form the packhouse in order to increase the amount of otherwise limited productive floor space:

"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…"

73. Mr Evans quoted from the 2003 Environmental Statement:

"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."

74. Mr Evans asserted that the section of the 2003 Environmental Statement on impacts from traffic clearly recognised that the proposals would lead to an increase in heavy goods traffic to and from the site resulting from increases in production:

"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."

75. Mr Evans asserted that the 2008 documents by contrast appeared to provide no description or analysis of the return to Lower Link Farm of the inspection process from Amesbury and based the conclusions that no environmental impacts including extra HGV would arise on the premise that the rationalisation proposal per se would not lead to an increase in productive floor space or to other changes which could result in increased production so that the rationalisation "by itself" would not lead to any increases in production.
76. In a witness statement in response Michael Rushworth, the Vitacress managing director, said that a key element of the proposed development was the erection of sealed intake docking bays and dispatch docking bays which would enable Vitacress to close the two breaks in the cold chain where salad products were unloaded from and into HGVs. At present salad crops imported into the site were unloaded form HGVs in the open yard at the rear of the packhouse building and transported by forklift via a roller shutter door ino the packhouse. The works authorised by the planning permission replaced that arrangement through the construction of three sealed intake bays that allowed HGVs to be unloaded directly into the packhouse.
77. Crates and pallets associated with the packhouse operations were currently sorted in the open yard to the north of thee existing main building. It was proposed to erect a closed storage area adjoining the northern elevation of the existing main building. That building would solely be used for the storage of crates pallets and other equipment and would not increase the productive store space of the packhouse.
78. The purpose of the development permitted in 2010 was to deliver environmental benefits such as reduced energy usage and CO2 emissions and to increase efficiencies in operations, thus enabling increased product quality and freshness while reducing the cost of the operation. Mr Rushworth stated that increases in production could be accommodated in the current set up without the changes for which planning permission had been sought, for example by increasing the number of hours worked each day or by altering the number of pack lines within the existing productive space if demand required. There were no planning restrictions on the productive space currently used within the packhouse whether in respect of the amount of the utilised space or in terms of any restriction on hours of operation. The sole driver for increases in production would be to meet customer demand.
79. As to the 2003 application for planning permission Mr Rushworth stated that it differed from the 2008 application in a number of ways including that, unlike the 2008 application, it included a new suite of offices and a relocation of a number of functions. However neither the 2003 application nor the 2008 application required any additional space to enable an increase in the output of the number of bags packed and distributed.
80. As to Amesbury Mr Rushworth said that there was no intention to bring the Amesbury operation back to the site and even if Vitacress did choose to return Amesbury processes of picking and/or inspection to the site it would not change production volume in any way. The number of vehicle movements into or out of the site would not change because if the products were not coming from Amesbury they would be coming straight from the farms. If the Amesbury operations returned to the site the vast majority of products would go straight to the site from the farms.
81. Mr Rushworth stated that none of the so called "freed up" space in the intake area to the north east of the packhouse was intended to accommodate new packing lines. It would be used for storage. The fact that the storage area would increase did not mean that production would increase as well. Whilst the internal arrangements of the internal packhouse could be altered to increase the number of pack lines that could be done in any event without the need for the new development. In fact the number of pack lines had been reduced form eleven to ten and two bowl lines had been installed in the same area. It was not the number of pack lines that determined output but customer demand and the nature of the product on the pack line. Thus if customer demand required more bowls and fewer bags the maximum capacity would decrease even if the number of lines increased.
82. As to Mr Evans' estimate of the North West storage extension Mr Rushworth said that it was incorrect and exaggerated. It was in fact 1872 m2. After the deduction of 1500 m2 for the current external storage, the remaining 372 m2 was less than Mr Evans claimed could be made available for production. The majority of that space was taken up by the access walkway, ramp, doc levellers and associated manoeuvring of stacker trucks.
83. As to Mr Evans' calculation of the northeast extension Mr Rushworth said that that was also inaccurate and exaggerated. The true figure was 1112 m2. Of the 762 m2 of chilled area in the application some 200 m2 was occupied by the raised loading dock and ramp. The remaining additional space was required partly because of the distance required to transport materials to the wash lines and partly to have an efficient arrangement of raw materials storage, allowing Vitacress to stack the raw material stock in a sensible way, allowing efficient access to extract the leaves required for each wash line, rather than block stacking pallets which was a notoriously inefficient way to store raw materials.
84. Mr Rushworth stated that all aspects of the 2008 planning application were explained to the Council prior to the determination of the application. They included both the existing uses and the proposed uses of the buildings and areas. The Council were made fully aware that the areas covered by the 2008 application had no direct link to the volume produced because future demand increases could be accommodated within the existing building pre-development and the purpose of the development which was granted planning permission in 2010 was to deliver environmental benefits, increase efficiencies and reduce costs in the existing business operation. He also stated that there was no intention to bring its Amesbury operation back to the site. In a second witness statement dated 6 February 2012 in response to Mr Rushworth's first witness statement Mr Evans asserted that Mr Rushworth was wholly unclear about whether inspection would or would not return from Amesbury to the site. In any event he asserted that Mr Rushworth's evidence was that the 2010 permission would enable the return of inspection. He asserted that the return of inspection from Amesbury would appear to have significant implications in terms of changed HGV traffic. He referred to Mr Rushworth's statement to the Council in 2002 that the temporary relocation of inspection to Amesbury was expected to result in a 30 per cent reduction of HGV traffic at Lower Link. He asserted that the clear indication was that if and when the inspection process returned to Lower Link as would now be made possible by the proposed expansion of the packhouse, incoming HGV traffic would in fact increase because it would consist of smaller vehicles and/or part loads, as present supplied the Amesbury facility, rather than large, articulated vehicles which presently departed from Amesbury with consolidated, full loads.

The statutory and policy framework

85. Section 70(1)(a) of the Town and Country Planning Act 1990 ("the 1990 Act") provides that where an application is made to a local planning authority for planning permission they may grant such permission subject to such conditions as they think fit. Section 72(1)(a) of the 1990 Act provides that without prejudice to the generality of section 70(1) conditions may be imposed on the grant of planning permission under that section –

"(a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission;…"

86. Thus taken together sections 70(1)(a) and section 72(1)(a) confer a power on the planning authority to impose conditions not only on land in respect of which an application is made but also any land under the control of the applicant. The circumstances in which conditions may lawfully be imposed for regulating the development or use of land other than that in respect of which the application was made has been the subject of judicial consideration in a number of authorities both under the 1990 Act and its predecessor.
87. The principal principles which emerge from those authorities are that (1) a condition must not be imposed for an ulterior purpose but must fairly and reasonably relate to the permitted development and (2) the question whether a condition fairly and reasonably relates to the permitted development is a matter to be decided by the decision maker and not the court and will not be interfered with by the court unless it is established that the decision maker misdirected himself or reached a conclusion to which he could not reasonably have come.
88. In the leading case of Kingston-upon-Thames Royal London Borough Council the Secretary of state for the Environment 1973 1 WLR 1549 Lord Widgery LCJ considered section 30(1) of the Town and Country Planning Act 1971, the predecessor of section 70(1)(a) of the 1990 Act. He held that the words of the section were wide and clearly on their face entitled the local planning authority to impose conditions which affected land not the subject of the application itself and which went to the restriction of the past user or the removal of existing works. However although they were wide it had been recognised for a very long time that they were subject to certain restrictions:

"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." The second restriction on those words which the courts have adopted in recent years is that a condition which is so clearly unreasonable that no reasonable planning authority could have imposed it may be regarded as ultra vires and contrary to law and treated as such in proceedings in this court.

But as far as I know those are the only two general limitations on the wide powers in section 30… I would have thought it well known to anyone with experience in this field that in a great number of cases when applications for planning permission are made, the attitude of the planning authority properly is that although the proposal is acceptable if certain other activities are discontinued, it would not be compatible with a continuance of all the previous activities and all the existing work on the applicant's land or adjoining land. I am sure we can all think of hundreds of cases in which a planning authority in granting planning permission has imposed a condition which would restrict the applicant's rights on other land, or require him to remove works or buildings on other land, as section 30 of the Town and Country Planning Act 1971 provides" (1553 A-G).

I would observe that a fortiori a planning authority may properly take the attitude that although the proposal is acceptable if certain other activities are maintained at their existing level it would not be compatible with an increase in the level of existing activities on the applicant's land which is not the subject of the planning application.

89. Bridge J, agreeing with Lord Widgery CJ's judgment added this:

"A condition imposed in exercise of the express power to regulate the use of, or to require the carrying out of works on, land other than the land in respect of which the planning application was made, must, in the nature of the case encroach upon the applicant's established rights over that other land, which, but for that condition, he will continue to enjoy free of any such regulation or requirement. Provided always such a condition fairly relates to the permitted development and cannot be challenged on the ground of unreasonableness, the effect on existing rights in no way affects its validity (1557 B)."]

90. In Penwith Distirct Council v Secretary of State for the Environment and Another (1977) 34 P &CR 269 a factory owner applied for planning permission to extend the factory which had a floor area of about 900m2 by a further 512 m2. The local planning authority granted permission subject to conditions that no machinery should be operated in either the existing factory or the extension between certain hours and that the noise emanating from operations conducted in the existing factory and the extension permitted by the permission should not exceed a certain level between certain hours.
91. The inspector found as a fact that the purpose of the proposed extension was to enable the machines already installed in the existing factory to work under a continuous process 24 hours a day. The additional space in the proposed extension was primarily needed for packing and ancillary operations on the larger scale resulting from the increased production. Sir Douglas Frank QC stated that it was quite clear that the extension itself was not to be used for the working of machinery but rather to enable the machinery in the existing factory to be used 24 hours a day. Thus a condition which had for its purpose the restriction on the use of machinery in the interest of amenity and particularly nuisance from noise could have a bearing only on the existing factory. It could not in his judgment possibly be said that that condition was not related to the development being permitted because it was the development that was being permitted which would enable the machinery in the existing factory to be operated 24 hours a day. He found that there was no evidence on which the Secretary of State could come to the conclusion that the condition imposing time limits within which machinery could be operated in the existing factory or the extension was not related to the permitted development. On the contrary it seemed to him that it necessarily arose from it. As to the restriction on noise levels from operations conducted in the existing factory and the extension he held that a similar consideration applied because the noise would chiefly be generated from the existing building and that noise if it were to be increased or to become objectionable would do so mainly as a result of the permitted development enabling the existing building to be used more effectively.
92. Mr McCracken relied on this decision. He submitted that there was an analogy with the facts of this case in that it was the new enclosed storage area which, by liberating space currently used for storage inside the packhouse in the area immediately adjoining the new enclosed area would enable production in the packhouse to be increased by the installation of further packing equipment.
93. In response Mr Mould submitted first that there was no evidence that Vitacress intended to use extra space created by transferring stored items to the new extension for the purpose of installing additional packing equipment, second that the planning committee was entitled to accept Vitacress' assurances that they had no such intentions and third that Vitacress was not dependent on the new storage area for increasing production in the packhouse if that is what it wanted to do. Although he accepted that in principle it would have been open to the Committee to conclude that the mere possibility created by the storage area for an increase of production in the packhouse by liberating space for further machinery meant that a condition limiting further increases in production in the existing packhouse would be fairly and reasonably related to the proposed development, equally it was not bound to reach that conclusion. On the contrary it was entitled to accept what he submitted as a matter of interpretation of the Officers' Report was the view of the officers, namely that such a possibility was no more than speculative.
94. In A.I.P (Stratford) Ltd. V London Borough of Tower Hamlets [1976] JPL 234 the council granted planning permission for the creation of two warehouse units and one industrial unit. On the site there already existed industrial and office buildings and a condition was attached to the permission requiring that the existing office accommodation should only be used as ancillary to the non-office uses on the site that is to say it was required that they were to be used as offices ancillary to the existing and newly permitted industrial and warehouse buildings. Counsel for the plaintiffs argued that the condition did not reasonably relate to the permitted development as the council were trying to obtain an incidental advantage of a purely negative character by preventing in the future the existing offices being used as general offices without any benefit to or connection with the permitted development.
95. Phillips J held that it was clear that the reasons for imposing the condition were not concerned just with restricting the existing office use but with preventing parts of the new warehouse and industrial units being in future used for offices. It had been feared that if the existing offices could be used for office purposes extraneous to the warehouse and industrial uses on the site, future industrial occupiers might need to use part of the industrial buildings for their own ancillary office space. That would have resulted in a net increase in office floor space and a reduction in the industrial and warehouse floor space. That would have been contrary to the council's planning policy of retaining and encouraging industrial employment in the borough. Phillips J stated that it therefore seemed to him that the condition did in fact relate to the permitted development and accordingly was not void.
96. Mr McCracken relied on this decision in support of the proposition that a condition may be fairly and reasonably related to a development if the mischief sought to be avoided by the condition is based on no more that a reasonable fear that some further development might occur without the condition. As I understood it Mr Mould did not take issue with that general proposition. In other words he did not contend that it would in principle be unlawful for a planning authority to impose a condition by reason of a conclusion that it reasonably and fairly related to the proposed development for which planning permission was sought if the only link was a reasonable belief that without the condition some adverse event might occur on other.
97. However Mr Mould submitted, rightly in my judgment, that the decision in AIP did not replace but rather applied to the facts of that case the test laid down in Pyx Granite and Kingston, and subsequently approved by the House of Lords in Newbury to which I refer next, that a condition may lawfully affect land which is not the subject of permitted development provided that it fairly and reasonably relates to the permitted development.
98. In Newbury District Council v Secretary of State for the Environment [1981] AC 578 Lord Scarman held that the question of what was fairly and reasonably related to the permitted development in that case was for the Minister in the light of all the circumstances to decide. The Minister, being the ultimate authority on planning questions arising in the enforcement of planning control, was the appropriate authority to determine "whether a condition 'sufficiently', i.e. fairly and reasonably, relates to the permitted development. (at 621). Viscount Dilhorne stated: "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."
99. In Delta Design and Engineering Ltd v Secretary of State for the Environment, Transport and the Regions and Another [2000] 80 P CR 76 Counsel for the Secretary of State resiled from a written submission that: "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". Pill LJ, in a judgment with which the other members of the Court of Appeal agreed, held that Counsel was right to resile from that submission on the ground that it was inconsistent with Newbury. He held that:

"It follows from Newbury that the decision in the first instance is that of the decision maker, in this case, the Inspector appointed by Secretary of State. The court will interfere with his conclusion only upon the well-established grounds identified by Viscount Dilhorne in Newbury. It was not appropriate for the judge to put himself in the position of the decision-maker." (page 81).

100. Pill LJ cited with approval ministerial guidance as to the effect of the law as set out in Circular 11/95 in the passage in paragraphs 24 and 25 which were set out in full in the Officer's Report in this case.
101. In Oxton Farms Pill LJ, with whose judgment the other two members of the Court of Appeal agreed, stated:

"It is important that those who make determination under the planning acts are familiar with section 70(2) and 54A of the 1990 Act and apply the test imposed by Parliament. It follows that a planning officer reporting to and advising council members who are to make a relevant decision must keep the test in mind in the information and advice he provides and in the manner in which he provides it.

Clear mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submission to the council liable to be quashed. The overall fairness of the report, in the context of the statutory test, must be considered.

It has also to be borne in mind that there is usually a further opportunity for advice and debate at the relevant council meeting and that the members themselves can be expected to acquire a working knowledge of the statutory test." (page 8).

102. Judge LJ, with whose judgment Butler-Sloss LJ agreed, stated:

"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.

From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken." (page 9).

103. In R v Mendip District Council (200) 80 P C. R. 500 Sullivan J, as he then was, considered the question of the circumstances in which there is a duty to give reasons for the grant of planning permission. He held that there is an obvious difference between those cases where planning permission has been granted on the recommendation of a planning officer and where planning permission has been granted contrary to such a recommendation. He held:

"If there has been an earlier refusal, as recommended by a planning officer, followed by a grant of planning permission, contrary to the planning officer's consistent recommendation, some explanation will be required, since by definition it will not be possible to find it in the planning officer's report. So it will be necessary to search elsewhere for the reasons why the members decided to change their minds. In such circumstances it might well be sensible at the very least to record the member's reasons in the form of a minute. But if, as in the present case, there has been a refusal of planning permission contrary to the planning officer's recommendation, a further application is made, the planning officer again recommends planning permission and the committee then decided to grant planning permission, it is a fair inference in the absence of evidence to the contrary that the members have been persuaded by the planning officer's views. I accept Mr Singh's submission that one is concerned with the members' reasons not the planning officer's, but where a planning officer makes a recommendation which is followed by the members, the reasonable inference is that the members did so for the reasons advanced by the officer, unless of course there is some indication to the contrary." (page 15).

104. Mr Mould relied on Mendip in support of his submission that the Committee in this case is to be taken to have accepted the advice and reasoning in the respects identified him in the key points of the officers' advice in the Officers' Report.
105. In Peak Park Joint Planning Board v Secretary of State for the Environment (1980) 39 P C.R. 36q at 377, Sir Douglas Frank QC, having reviewed a number of authorities including Kingston, held that the authorities support the proposition that, subject to the principles in Pyx Granite and to the test of unreasonableness in the sense of a condition being so unreasonable that no reasonable planning authority could have imposed it, there is no limitation on the wide powers in section 30 in the Act of 1971. In my judgment it is necessary to see that statement in context. If and insofar as it were intended to hold that a condition may lawfully be imposed even where it is not reasonably considered by the decision maker to be fairly and reasonably related to the development for which permission is sought, it would be contrary to the authorities to which I have referred and some of which were reviewed by Sir Douglas Frank. If and in so far as the judge intended no more than to state that, subject to Wednesbury or Newbury reasonableness, there are no limitations on the factual circumstances in which a local planning authority may conclude that a particular condition is reasonably and fairly related to the development for which permission is sought, it would in my judgment be uncontroversial and represent no extension of the principles which have been laid down in the earlier authorities.
106. The same in my judgment is true of the decision of Mr George Bartlett QC sitting as a deputy High Court Judge in London Borough of Hammersmith and Fulham v the Secretary of State for the Environment transport and the regions and Cove Tree Ltd (Co/530/99). In that case Mr Bartlett QC stated that section 70(1) of the 1990 Act contains a wide general power to impose conditions and section 72(1)(a) enables a condition to be imposed which regulates the use of any land under the control of the applicant whether or not it is land in respect of which the application was made and that there is a line of authority commencing with Kingston that establishes that a condition may restrict existing use rights. (paragraph 14). I derive no assistance from either Hammersmith and Fulham or Peak Park so far as distillation of general principle is concerned.

Discussion

107. Mr McCracken submitted that the Officers' Report gave misleading legal advice to the Committee which vitiated its decision to grant permission without imposing a condition limiting the use to which the existing packhouse could be put. In his submission there was evidence that the new enclosed and covered storage area could lead to an increase in production in the packhouse by liberating space in the packhouse currently used for storage to enable it to be used for installing more packing machines or in other ways. As a matter of law such a possibility was capable of constituting a sufficient link between the new enclosed areas for which permission was sought and the existing packhouse to entitle the Committee to consider that a condition imposing limits on production in the packhouse would be reasonably and fairly related to the proposal for which permission was sought.
108. In his submission the Officer's Report did not draw that to the attention of the Committee. For example it did not draw to its attention the decision in AI and P Stratford (Ltd) to the effect that a risk or mere possibility of a consequence flowing from a proposal for which permission is sought can in law justify the imposition of a condition restricting pre-existing uses in land not covered by the permission. Further he submitted that the Report by implication positively advised the Committee that it would be unlawful to impose a condition restricting the existing use of the packhouse if the only justification relied on was the possibility that the new enclosed area might lead indirectly to an increase in production in the packhouse.
109. Mr McCracken submitted that that was the effect of the words "…in the light of the advice received officers have concluded that it would not be reasonable or lawful to impose a condition on a planning consent to limit the existing established mixed use of the site".
110. In his submission it is clear that in this passage the officers were not saying that such a condition would not be reasonable and therefore not lawful. The conjunction "therefore" was not used. The use of the conjunction "or" makes clear that there were two separate reasons for not imposing the condition. There was a great difference between saying "in my judgment this would not as a matter of planning judgment be reasonable" and saying "any other view would be so unreasonable that no planning authority could lawfully make that judgment".
111. The validity or invalidity of these submissions lie at the heart of the Claimant's first ground of objection. As I have indicated it is in my view clear from the authorities that Mr McCracken was right to submit and indeed Mr Mould accepted that in principle a planning authority could lawfully impose a condition restricting pre-existing use of land not the subject of the permission if it reasonably concluded that (a) there was a possibility that the proposed development could result in a material change in the pre –existing use in the adjacent land and (b) that possibility fairly and reasonably related to the development for which permission was sought. It is also in my view clear that the Officer's Report alerted the Committee to the fact that Mr Evans and other consultees took the view that on the facts of this case there was a possibility that if permission were granted it could lead to an increase in production in the existing packhouse.
112. The key question therefore in my judgment is whether Mr McCracken is right in the construction or interpretation of the passage in the Officer's Report on which he relied. I should add that there were two other passages on which he relied to which I shall refer, but the principal one is the passage which I have just cited.
113. Mr McCracken accepted that in principle it is open to councillors to disagree with an officer's report so that the Committee was free to reject any planning judgments expressed by officers in the Officers' Report. However he did not accept that it was open to councillors to reject unequivocal legal advice. He therefore submitted that this is not a case in which, as suggested by Sullivan J in Mendip, it is possible to assume that the reason the Committee decided not to impose a condition restricting the existing use of the packhouse was that they agreed with officers that such a condition would not be reasonable or reasonably and fairly relate to the proposed development. In Mendip Sullivan J indicated that any presumption that a committee adopted as the reasons for its decision the recommendations made by officials is subject to the qualification that it does not apply where circumstances suggest otherwise and Mr McCracken submitted that here circumstances do suggest otherwise. The circumstances are that the Committee was wrongly advised that because there was no evidence that the new development would lead to an increase in production in the packhouse it would be for that reason unlawful to impose a condition restricting use in the existing packhouse. It is therefore to be inferred that the Committee did not consider the question whether the mere possibility that the enclosed storage area could lead to an increase of production in the packhouse meant that a condition restricting the use of the packhouse would fairly and reasonably relate to the proposed development or at the very least it cannot be assumed that it did consider that question and reached the same conclusion in relation to it as the officers did as expressed in the Officers' Report.
114. Mr Mould and Ms Parry on behalf of the Council took issue with Mr McCracken's interpretation of the Officers' Report. Read fairly as a whole they submitted that it identified the correct legal test which the Committee had to apply in considering whether to impose a condition restricting the use of the packhouse, namely whether such a condition reasonably and fairly related to the proposed development. It set out for the consideration of the Committee the competing arguments on that question advanced respectively by Vitacress and a number of consultees including Mr Evans (albeit not identified by name). That is to say the argument advanced by consultees that the proposed development had the capacity to lead to an increase in production in the site as a whole including the existing packhouse and Vitacress' argument that the proposed development was not intended to lead to an increase in production in the site as a whole including the packhouse and would not in fact do so.
115. Having set out the rival contentions the Officers' Report acknowledged that the proposed development could lead to an increase in production in the site as a whole but expressed the view that there was no evidence to justify the Committee not accepting Vitacress' statements that the buildings proposed would not result in changes in future productivity and levels of output which were governed by other factors unrelated to the proposed development. In other words the concerns of the objecting consultees were speculative. In the light of those considerations the planning judgment expressed by officers in the Officers' Report was that the imposition of a condition on the grant of planning permission for the proposed new buildings seeking to limit the level of production on the site including in the packhouse was not justified because it would not reasonably and fairly relate to the proposed new development.
116. Mr Mould submitted that the statement that "officers have concluded that it would not be reasonable or lawful to impose a condition on the planning consent to limit the existing established mixed use of the site" was not a legal direction or advice to the Committee that it would be unlawful to impose a condition to limit the existing established mixed use of the site if the only justification relied on was the possibility that the proposed development could or might lead to an increase in production in the site as a whole including in the packhouse. Rather it was the expression of a planning judgment that in the light of all the circumstances summarised in the Officers' Report such a condition would not fairly and reasonably relate to the proposed new development and a further conclusion that it necessarily followed from that planning judgment that it would be unlawful to impose a condition because such a condition in those circumstances would not satisfy the legal test of being reasonably and fairly related to the proposed new development.
117. Mr Mould submitted that it follows that the Committee did not accept the advice and reasoning of the officers because it was unlawfully directed that it lacked the power to impose a condition limiting the existing use of the site and/or because they did not properly consider the potential for existing production to expand or increase as a result of the proposed new buildings. Ms Parry submitted in her skeleton argument the Committee were properly advised of the legal test to be applied, understood the evidence in relation to the link between development and any increase in throughput and properly accepted the conclusions of their officers that there was an insufficiently close connection between the proposed development and an increase to the existing use to justify a condition limiting the existing use. The Committee having been properly advised of the correct legal test and the relevant evidence the exercise of its planning judgment is not one which the Court should interfere with.
118. In my judgment, as appears from the parties' submissions, ground one turns on the fair interpretation of the Officers' Report read as a whole. Applying to that exercise the approach laid down by the Court of Appeal in Oxton Farms I conclude that the failure of the Committee to impose a condition restricting the existing use of the packhouse or the site generally was not vitiated by any misdirection of law in the Officers' Report or by any failure on the part of the Committee to consider whether it was possible that the proposed new development could lead to an increase in production in the packhouse and/or the site as a whole and if so whether for that reason such a condition would fairly and reasonably relate to the proposed new development.
119. In my judgment the Officers' Report contained a thorough examination and analysis of the issues which the Committee needed to consider when deciding whether to impose a condition restricting production levels on the existing site and in particular the packhouse. The key features of the relevant background were identified in some detail and the competing arguments and positions adopted respectively by Vitacress and consulted objectors on the effects of the proposed development on future production levels on the site were clearly flagged. The legal test which the Committee was required to apply to the question was spelled out more than once. The Officers' Report presented a balanced view of the competing arguments and proceeded to express a planning judgment on whether the evidence justified a conclusion that a condition restricting production levels on the existing site and in particular the packhouse would fairly and reasonably relate to the proposed new development.
120. Having made that planning judgment and reached the conclusion that a condition would not fairly and reasonably relate to the proposed new development it correctly stated that it followed from that planning judgment and that conclusion that it would be unlawful to impose such a condition.
121. It follows that in my judgment the Officers' Report did not ignore the objectors' contention that the new development could increase or lead to an increase in production levels on the existing site including in the packhouse. Nor did it proceed expressly or by implication on the basis that or advise the Committee that even if it were accepted that that contention was or might be correct that could not constitute a justification for concluding that a condition would fairly and reasonably relate to the development or that it would be unlawful to impose a condition based on such a justification.
122. On the contrary in my judgment the Officers' Report so far from ignoring the objectors' contention addressed it head on. It accepted that the proposed development could lead to an increase in production levels on the existing site. However it expressed the view that there was no evidence that it would do so and no evidence to dispute Vitacress' assertions that the key drivers for the development were unrelated to increasing production levels and that there was no link between the proposed development and future productivity and output levels.
123. Just as Mr McCracken was right in my view to submit that a reasonable decision maker could lawfully conclude that the mere fact that the proposed development could lead to an increase in production levels on the existing site justified a conclusion that a condition would fairly and reasonably relate to the proposed new development, so a reasonable decision maker could also in my judgment lawfully conclude that it did not justify such a conclusion. Which of these conclusions should be drawn was a classic example of a matter of planning judgment for the decision maker. As submitted by Ms Parry matters of weight and judgment in relation to whether a condition fairly and reasonably relates to a proposed development are for the decision maker and not for the Court – see Tarmac Heavy Building Materials UK Ltd v SSETR (2000) 79 P&C.R. 260 at pp 267, 268 per Jackson J, as he then was. In particular the weight to be attached to the possibility that the proposed development could as distinct from the certainty or probability that it would lead to an increase in production levels on the existing site was in my judgment a matter on which the officers were entitled to express an opinion and on which the Committee was entitled to accept that opinion and to reach the same conclusion as the officers. In my judgment there is no warrant for concluding that that is not what happened.
124. It follows that I do not accept Mr McCracken's submission as to the fair interpretation of the statement in the report that officers had concluded that it would not be reasonable or lawful to impose a condition on a planning consent to limit the existing established mixed use of the site. I note that in citing that statement in his closing speaking note Mr McCracken omitted the opening words of the sentence "in the circumstances and" which preceded the words "in the light of the advice received officers have concluded that it would not be reasonable or lawful to impose a condition on a planning consent to limit the existing established mixed use of the site."
125. Those opening words are important in my judgment because they support the interpretation of that sentence that what was being said was that officers had concluded that having regard to all the evidence and rival contentions a condition would not fairly and reasonably relate to the proposed development. In my judgment the word "reasonable" was a shorthand for reasonably and fairly related to the proposed development. The additional statement that officers had concluded that it would not be lawful to impose a condition was not in my judgment, as Mr McCracken submitted, in effect a direction to the Committee that "any other view would be so unreasonable that no planning authority could lawfully make that judgment". It was merely a shorthand statement to the effect that unless a condition satisfied the legal test of being reasonably and fairly related to the proposed development, which in the opinion of the officers would not be the case on the facts under consideration, it could not lawfully be imposed.
126. In my judgment that sentence read as a whole and in particular in the context of the Report as a whole and the section on "consideration of conditions and limitations" as a whole was not, as submitted by Mr McCracken, directing the Committee that as a matter of law, even if the Committee reached a different planning judgment to the officers and concluded that a condition would fairly and reasonably relate to the proposed development on the ground that it could lead to an increase in production levels it could not lawfully impose a condition.
127. One of Mr Evans' complaints is that Vitacress never answered the question whether the proposed development would lead to the capability for increased production and associated traffic and waste production, as he contended that it would. He contended that Vitacress in its response to the Council's Regulation 19 request confined itself to answering a different question, namely whether the proposed development would or was intended to result in increased production on the existing site to which it gave a negative answer.
128. Whatever the validity of that complaint may be, the fact is that the Council put Mr Evans' concern to Vitacress in the Regulation 19 request and asked for an assessment of the degree to which the development applied for could lead to the capability for increased productive capacity on the site. Moreover in the Officers' Report it specifically flagged up not only the thrust of Mr Evans' and other objectors' concerns but also the thrust of Vitacress' responses thereto.
129. Thus the Officers' Report quoted the objection of Hurstbourne Priors Parish Council that "whilst it is apparently based on tidying up the site and improving processes with the goods-in and goods-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" and that "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."
130. It also recorded the objection of CPRE-Hampshire on the ground that no increase in Vitacress' activities should be allowed and that the controls proposed by Hurstbourne Priors Parish Council were supported. It also cited an objection in a letter responding to the original consultation which asserted that the proposal "will result in an expansion of production and output with consequent harm to the local environment and increase in traffic." It also included a summary of a letter of objection in response to the additional consultation on the ground that the EIA's requirements had not been met and that no expansion of activity should be allowed until they were satisfied.
131. The Officers' Report quoted an extract from Counsel's advice which referred to a concern as to whether the Environmental Statement failed to assess the potential scope of activities on site. The advice stated that "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 have 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."
132. In the section devoted to a consideration of conditions and limitations attention was drawn to the fact that all the elements applied for in the planning application – intake and dispatch bays, workshop, storage building and plant and facilities – some of which replaced existing facilities, would support the existing site operations. Indeed attention was drawn to the analysis in section 5 of the Environmental Statement of alternative development scenarios which emphasised the fundamental link between the proposed facilities and the existing site operations.
133. The contrast between the concerns of the objectors as to the potential increase in production levels which might follow from the proposed development and the position of Vitacress that the purpose of the proposed development was not to increase production levels and that it would not do so was specifically highlighted in the Officers' Report. Thus it stated that "a key concern of local residents and interested parties is the degree to which the development for which planning permission is now sought might lead to the intensification and/or expansion of the operations at the site to the point where existing impacts which some third parties consider are already environmentally damaging may increase. The most significant concern is traffic together with issues relating to water abstraction and water quality and ecological impact, but also include noise and light pollution". (Emphasis added). "VSL's position on this is that the driver for this development is the need to close existing brakes in the cold chain, which is a very high priority for VSL and its customers and to reduce costs though removing unnecessary vehicle movements and handling of goods".
134. The report then cited paragraph 1.4 of the Planning Supporting Statement that "it is important to note that the proposed development at Lower Link Farm will not lead by itself to an increase in the productive floor space within the Packhouse… increases in capability could take place without the proposed development as there are no planning restriction on the use of that capacity. What is proposed is a development which would enable improvement in product quality and production costs together with environmental benefits, but whether that leads to increased production depends on other factors such as market demand, seasonal production, weather conditions etc. the proposed development will not result in an increase in traffic volumes to and from the site by the same reasoning". (Emphasis added).
135. Significantly the Officers' Report then specifically advised the Committee that, although the council had to consider the application on its own merits and not seek to retrospectively apply controls to an existing, established commercial operation, "The council has a responsibility to ensure that the actual and potential impacts of the development are properly considered." (Emphasis added).
136. It then recorded the fact that the Council had therefore requested further application from the applicant through a Regulation 19 request which among other things sought an assessment of the degree to which the development applied for could lead to the capability for increased productive capacity at the site. It recorded that in response to that request the applicant had stated that the development applied for "will not lead to the capability for increased productive capacity on the site. They have stated (para. 2.3.7 of the addendum ES):

"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).

And (para. 2.4.2 of the addendum ES):

"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."

137. Having set out the evidence and both sides of the argument fully the Officers' Report summarised the planning issue as follows:

"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."

138. It was that summary of the position which immediately preceded the officers' conclusion in the sentence which I have analysed above. I observe that in an extract from Counsel's advice cited immediately above the summary which I have just set out was the statement that Counsel understood that "Officers have accepted the appellant's argument that the new development will not allow them to increase throughput". Mr. McCracken submitted that that was an inaccurate statement as to the position of the Council's officers in that Vitacress' position as set out in the Planning Support Statement and the response to the Regulation 19 request was not to the effect that the development would not allow Vitacress to increase throughput but rather that it would not in itself lead to such an increase. I see the force of that submission but it is in my judgment overshadowed by the fact that immediately after that extract the actual position of the Council's officers as at the date of the Report was to different effect, namely that there was no guarantee that activity levels would not alter as a result of the development but that there was no evidence to dispute Vitacress' assertions as to its intentions for the development and that there was no link between the development applied for and future productivity and output levels. Accordingly it is in my judgment clear that when expressing their planning judgment the officers did so not by reference to Counsel's understanding of Vitacress' position and the officers' position but by reference to the up to date statement of both positions set out by the officers themselves.
139. I would add for completeness that the Officers' Report drew attention at the outset to the additional plans showing both existing and proposed process flow to which I have referred together with the Planning Supporting Statement and the Addendum to the Environmental Statement served in response to the Regulation 19 Request. It also provided a link for details and plans including the Environmental Statement, the Planning Supporting Statement and the Addendum to the Environmental Statement. It also described the proposed development and explained Vitacress' reasons for seeking planning permission.
140. In my judgment it is clear that the Officers' Report addressed its mind specifically to the question whether the fact, which it accepted, that the proposed development could lead to an increase in production in the existing site, including in the pack house, meant that a condition restricting production levels in the pack house and the existing site would fairly and reasonably relate to the proposed development. It is also clear in my judgment that it concluded that it did not, on the basis that, although an increase in production was a theoretical possibility which could not be ruled out, the reality was that that was not Vitacress' motive for seeking planning permission for the new development and that, in the absence of evidence to the contrary, it accepted at face value Vitacress' assertions that it would not lead to increased production levels. In forming the judgment that they accepted Vitacress' assertions at face value it may well be that the officers were influenced by the consideration that, as pointed out by Vitacress, if it had wanted to increase production levels it could have done so without the proposed development.
141. The question remains whether, notwithstanding the conclusions which I have reached, the decision not to impose a condition was nonetheless vitiated by a mis-direction by the Officers' Report as to the legal position. Mr. McCracken relied in this regard on three passages in the Officers' Report. The first is the one which I have analysed. The second is the first sentence in the following extract which appeared earlier in the Report:

"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."

142. The third passage came at the end of this section of the Officers' Report: "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."
143. In my judgment neither of these passages, particularly when read in the context of this section of the Report as a whole supports Mr. McCracken's submission that the Committee was misled as to the nature of its powers or the legal test which it had to apply when considering if they were exercisable.
144. The very first sentence of this section of the Officers' Report accurately summarised the legal position: "Any condition imposed on an application must fairly and reasonably relate to the permitted development. Circular 11/95 says that a condition ought not to be imposed unless there is a definite need for it and unless a condition fairly and reasonably relates to the development to be permitted, it will be ultra vires".
145. That general statement of the law was, in my judgment, correct and it is not in my judgment realistic to suggest that any of the passages relied on by Mr. McCracken were reasonably capable of being interpreted by the Committee as intending to derogate or to depart from it. I note in particular that paragraphs 24 and 25 of the Circular, which were cited with approval by Pill LJ in Delta Design and Engineering, were set out in full in the Officers' Report which was introduced in these terms: "In commenting on whether the condition would be reasonably and fairly related to the development to be permitted, Counsel reiterated her original advice and quoted from Circular 11/95 as follows:…".
146. The "reasonably and fairly related to the development" test was thus both repeated in the Officers' Report and said to have been applied by Counsel in her original advice. There was a further extract from Counsel's legal advice: "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." Again that was an accurate statement of the law in my judgment. In my judgment it is those references to Counsel's advice as to the legal test for imposing conditions to which reference was made in the passage which I have analysed when it stated that "In the light of the advice received" officers had concluded that it would not be…lawful to impose a condition on a planning consent to limit the existing established mixed use of the site." It is true that in the following paragraph of the extract from Counsel's opinion there appeared the statement that she understood that the officers had accepted Vitacress' argument that the new development would not allow them to increase throughput "and as such there can be no basis for seeking to limit the currently unlimited use of the remainder of the site". No doubt if that argument had been advanced by Vitacress and accepted by Officers there could be no basis for seeking to limit the use of the remainder of the site. However I have indicated that that factual position was corrected in the immediately following passage of the Report.
147. There is no warrant in my judgment for a conclusion that in any of the passages relied on by Mr. McCracken the clear statement in the Officers' Report as to the correct legal test to be applied was or was reasonably capable of being understood as having been materially altered. Although in deference to Mr McCracken's submissions I have analysed the various passages on which he relied, I remind myself that the Report is not to be construed as if it were a statute and is not susceptible to textual analysis such as is appropriate to construction of a statute, and that an application for judicial review based on criticism of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the Committee (see Oxton Farms). Applying that approach for all the reasons which I have given I am not satisfied that the overall effect of the Officers' Report significantly misled the Committee about material matters, whether of fact or law.
148. For these reasons I reject the first ground of challenge.

Grounds 2 and 3: failure to consider all effects including indirect and cumulative of the proposed development as required by the EIA process

149. Mr Evans submitted that the Council failed properly to assess the likely effects including indirect effects of the development for which planning permission was sought which it was required to do under the Regulations. That is ground 2. Further or in the alternative he submitted that the Council unlawfully failed to consider the likely cumulative effects of the pre-existing and post-2010 permission activities also in breach of the requirements of the Regulations and the Directive. Although the EIA Directive has been replaced by a consolidating Directive 2011/92/EU the 1985 Directive was current at the time of the decision of the Council in this case. That is ground 3.

The Directive and the Regulations

150. Article 288 of the Treaty on the Functioning of the European Union provides that

"To exercise the Union's Competencies, the institutions shall adopt regulations, directives, decision, recommendations and opinions… A directive shall be binding, as to the result to be achieved, upon each Member State, to which it is addressed, but shall leave to the national authorities the choice of form and methods."

"The first preamble to the Directive referred to the fact that the relevant action programmes of the European Communities on the Environment stressed that the best environmental policy consists in preventing the creation of pollution or nuisance at source, rather than subsequently trying to counteract their effect; whereas they affirm the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes; whereas to that end they provide for the implementation of procedures to evaluate such effects;".

151. Article 1 of the Directive provided:

"1. This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.

2. For the purposes of this Directive:

"project" means:

the execution of construction works or of other installations or schemes,

other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources;…

"development consent" means:

the decision of the competent authority or authorities which entitles the development to proceed with the project".

152. Article 2.1 provided:

"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."

153. Article 4 provided:

"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…"

154. Article 5 provided:

"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…"

155. Article 6.4 provided:

"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…"

156. Among the projects identified in Annex (II) as being subject to Article 4(2) were those identified in paragraph 7(b): "Packing and canning of animal and vegetable products" and those identified in paragraph 13 as "Any change or extension of projects listed in Annex (I) or Annex (II) already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment".
157. The Regulations provided so far as material as follows:

"2 – (1) In these Regulations –

"EIA development" means development which is either –

(a) Schedule 1 development;

(b) Schedule 2 development likely to have significant effects on the environment by virtue of factors such as its nature, size or location;

"environmental information" means the environmental statement, including any further information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development;

"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;…

"further Information" has the meaning given in regulation 19(1)…

"Schedule 2 development" means development, other than exempt development, of a description mentioned in Column 1 of the table in Schedule 2 where –

(a) any part of that development is to be carried out in a sensitive area;

(b) any applicable threshold or criterion in the corresponding part of Column 2 of that table is respectively exceeded or met in relation to that development;…

"sensitive area" means any of the following - …

(h) an area of outstanding natural beauty designated as such by an order made by the Countryside Agency, as respects England,… under section 87 (designation of areas of outstanding natural beauty) of the National Parks and Access to the Countryside Act 1949 as confirmed by the Secretary of State; …

(3) Expressions used both in these Regulations and in the Directive (whether or not also used in the Act) have the same meaning for the purposes of these Regulations as they have for the purposes of the Directive. …

3 - …

(2) The relevant planning authority or Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.

4 – (1) subject to paragraphs (3) and (4), the occurrence of an event mentioned in paragraph (2) shall determine for the purpose of these Regulations that development is EIA development.

(2) The events referred to in paragraph 1 are –

(a) the submission by the applicant or appellant in relation to that development of a statement referred to by the applicant or appellant as an environmental statement for the purposes of these Regulations; or

(b) the adoption by the relevant planning authority of a screening opinion to the effect that the development is EIA development.

19 – (1) Where the relevant planning authority, the Secretary of State or an inspector is dealing with an application or appeal in relation to which the applicant or appellant has submitted a statement which he refers to as an environmental statement for the purposes of these Regulations, and is of the opinion that the statement should contain additional information in order to be an environmental statement, they or he shall notify the applicant or appellant in writing accordingly, and the applicant or appellant shall provide that additional information; and such information provided by the applicant or appellant is referred to in these Regulations as "further information".

(2) Paragraphs (3) to (9) shall apply in relation to further information…

(3) The recipient of further information pursuant to paragraph (1) shall publish in a local newspaper circulating in the locality in which the land is situated a notice stating - …

(j) that any person wishing to make representations about the further information should make them in writing, before the date specified in accordance with sub-paragraph (f) to the relevant planning authority, the Secretary of State or the inspector (as the case may be); …

(7) Where information is requested under paragraph (1), the relevant planning authority, the Secretary of State or the inspector, as the case may be, shall suspend determination of the application or appeal, and shall not determine it before the expiry or 14 days after the date on which the further information was sent to all persons to whom the statement to which it relates was sent or the expiry or 21 days after the date that notice of it was published in a local newspaper, whichever is later.

(8) The applicant or appellant who provides further information in accordance with paragraph (1) shall ensure that a reasonable number of copies of the information is available at the address named in the notice published pursuant to paragraph (3) as the address at which such copies may be obtained."

158. Schedule 2 of the Regulations contains descriptions of development and applicable thresholds and criteria for the purposes of the definition of "Schedule 2 development".
159. Paragraph 2 provides:

"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. …

Description of development	Applicable thresholds and criteria
Food Industry	The area of new floor space exceeds 1,000 square metres

(b) Packing and canning of animal and vegetable products"

160. Schedule 4 sets out information for inclusion in environmental statements. Paragraph 4 of Part I of Schedule 4 is

"4. A description of the likely significant effects of the development on the environment, which should cover the direct effects and any indirect, secondary, cumulative, short, medium and long-term permanent and temporary, positive and negative effects of the development, resulting from:

(a) the existence of the development;

(b) the use of natural resources;

(c) the emission of pollutants, the creation of nuisances and the elimination of waste,

and a description by the applicant of the forecasting methods used to assess the effects on the environment."

161. Paragraph 3 of Part II of Schedule 4 is:

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

The parties' submissions

162. So far as Ground 2 is concerned Mr McCracken criticised both the ES and the Addendum to the ES ("the Addendum") as inadequate in that they failed to address the question of the likely effects including indirect effects of the development. The ES was inadequate in that it failed to assess the degree to which the development applied for could lead to the capability for increased productive capacity on the site. He submitted that this was recognised by the Council as demonstrated by the fact that it sought such an assessment by way of additional information to the ES in its letter dated 15 September 2009 to Vitacress. Although that letter did not explicitly describe itself as a request for further information pursuant to Regulation 19, it is plain that that is what it was and Vitacress' November 2009 Addendum to the ES described itself as a response to a regulation 19 request. At the hearing Mr Mould and Ms Parry accepted that the 15 September 2009 was a Regulation 19 request.
163. Mr McCracken submitted that both the ES and the Addendum ducked the question of what would be the likely effects including indirect effects of the development by hiding behind bare assertions that there would in fact be no increase in production. Vitacress' repeated position had been that "by itself" the proposal would not lead to an increase in productive floor space and that there would not be a "direct increase" in the input to, or output from the existing packhouse.
164. Reference was made in this context to extracts from the Planning Support Statement and Vitacress' request for a screening opinion. Similarly the Addendum repeated six times that the proposal would not "by itself" have increased environmental impacts. Mr McCracken submitted that the implication was that in combination with other actions the proposals might well lead to increases in production and have indirect environmental impacts. He submitted that that had been noted by the Environment Agency ("the EA"). In the Council's Scoping Opinion dated 14 January 2008 the Council quoted comments provided by the EA in respect of Vitacress' Scoping Report and the ecology and water environment section in which Vitacress had stated that the EA had confirmed that no existing potential impact arising from the site would extend so far as to impact on the River Test SSSI. The EA had responded:

"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."

165. I note in passing that the language of the EA was not that the proposals "might well" lead to increases in production and have indirect environmental impacts, but rather that it "cannot rule out" the possibility of impacts reaching the SSSI from future activated at the site.
166. Mr McCracken submitted that as a matter of EU law likely effects are ones that cannot on the basis of objective evidence be ruled out.
167. I have already referred to the passage in the Scoping Opinion in which the Council stated that although Vitacress' Scoping document stated that the "nature" of the discharge would not change as a result of the proposed developments, paragraph 4.5 of the scoping report implied that the proposed developments 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 effluence.
168. Mr McCracken submitted that Vitacress' position appeared to be that the consequences of greater impacts from greater production did not fall to be considered because the latter was "dictated by customer demand". His response to that was to submit that the extent to which the potential environmental effects of any EIA project will be realised will always depend on "customer demand" for the use of the project. Given that one aim of the project was to increase efficiency a natural consequence of its implementation was an increase in the very customer demand that Vitacress asserted was irrelevant.
169. Mr McCracken submitted that the potential for increased production with consequential environmental effect included (a) the fact that the proposal would add over 4000 m2 to the existing packhouse, much of it (some 768 m2) consisting of chilled floor space which on any view provided at least scope for increased productive capacity; (b) the fact that improved efficiencies would enable at least some increase or intensification in production for example by allowing the processing of larger individual customer orders and (c) the fact that the proposal would allow for the inspection process at Amesbury to move back to Lower Link Farm.
170. At the hearing Mr McCracken accepted that for the purposes of the hearing in front of me the adequacy of the ES was a matter for the Council subject to review on Wednesbury principles: see R (on the application of Blewett) v Derbyshire CC [2003] EWHC 2775 (Admin); [2004] ENV LR 29 part of which was endorsed by the House of Lords in R (on the application of Edwards) v Environment Agency [2008] UKHL 22; [2008] ENVLR 34. However he reserved his position to argue to the contrary in the event of an appeal.
171. However he submitted that the Council judged the ES to be so inadequate that it was not capable of being an ES. As to the response to the Regulation 19 request, Mr McCracken submitted that the power and duty to make such a request set out in Regulation 19(1) is a high one. Neither Blewett nor Edwards dealt with the situation where a Regulation 19 request is made. In his submission both a literal and purposive approach to the wording of Regulation 19 suggest that the suspension imposed by Regulation 19(7) and the prohibition against determining the application until 14 days after the date on which the further information requested is sent to all persons to whom the statement to which it relates is sent can only come to an end when the required information has as a matter of fact been supplied.
172. Mr McCracken submitted that, whereas the question of the adequacy of an environmental statement is a matter for the local authority to decide subject to complying with Wednesbury standards, the question whether further information supplied pursuant to a request made under Regulation 19 is adequate is for the court to decide. He drew attention to the contrast between the presence in the definition of "environmental statement" in Regulation 2 (1) of a reference to 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 on the one hand and the absence of any qualification by reference to reasonableness in Regulation 19(1). In that section provided the planning authority is of the opinion that information submitted in a statement which the applicant refers to as an environmental statement should contain additional information in order to be an environmental statement, it shall notify the applicant in writing accordingly and the applicant is then obliged to provide "that additional information".
173. Mr McCracken relied on the decision of the European Court in Case C-127/02 Waddenzee [2004] ECR I-7405. In that case the ECJ was concerned with the correct interpretation of Article 6 of Council directive 92/43/ EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora ("the Habitats Directive").
174. Article 6(3) of the Habitats Directive provided that :

"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."

175. The ECJ posed the question:

"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?"

176. In answering that question the ECJ stated that:

"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).

177. Mr McCracken submitted that it follows that in considering whether further information supplied pursuant to a Regulation 19 request is adequate, the test to be applied by the court is whether it can be excluded on the basis of objective information that the development, either directly or indirectly, either cumulatively or in isolation will have a significant effect on the environment.
178. As to Ground 3 Mr McCracken submitted that it is important that changes and extensions are seen in the context of their "overall effect" and that developments that are associated with a proposal are taken into account. For the former proposition he relied on a statement by Collins J in R (Baker) v Bath and ME Somerset Council [2009] EWHC 595 (Admin); [2009] ENV LR 27 per Collins J at [22] that:

"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."

179. For the second proposition Mr McCracken relied on a statement by Sullivan LJ in Brown v Carlisle City Council [2010] EWCA Civ 52; [2011] Env L R 5 at [21]:

"The answer to the question – what are the cumulative effects of a particular development – will be a question of fact in each case. There may be a cumulative effect notwithstanding the absence of a functional link".

180. Mr McCracken submitted that the ES assessed the proposal in isolation from, rather than in combination with the existing development. The cumulative effects of the proposal with the existing and ongoing operations at the site failed to be considered. There was no assessment of those impacts. The ES section on traffic and highways merely stated that "there are no other planned developments in the area likely to have effects in combination with the proposal" and the water and hydrology chapter did not even attempt to assess cumulative impacts. That was said to be a breach of the requirements of the Directive.
181. Mr McCracken submitted that the ES did not contain either an assessment of the cumulative as well as indirect effects of the proposed development or the data necessary to inform such an assessment. He submitted that the Council recognised that the ES should cover those maters and asked for that information in the Regulation 19 request but that the information requested was not supplied by Vitacress in its response. In particular it did not provide data as to what was put in the water and it did not deal with the potential of the development to increase production and therefore to lead to emissions both pollutant and otherwise. As a result the Council did not assess the likely impact of the development because it did not receive a proper response to its request for that information.
182. Vitacress' response to the Regulation 19 request was limited to a denial that the proposal would by itself lead to change in the levels of production and therefore the levels of potential emission. The Council was wrong to accept that there would be no increase in production rather than, as it should have done, to consider what the effects would be if there were such an increase. Mr McCracken submitted that neither the ES nor the Addendum contained any range of pesticides or residues both of which he submitted fell within the regulation 19 Request. It was obvious from paragraph 11.122 of the ES under the heading "contamination of surface water from routine discharges from the packhouse" that Vitacress had information about the extent of water being polluted. Paragraph 11.122 was in these terms:

"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"


183. Mr McCracken submitted that both Article 5.3 of the EIA Directive and part II paragraph (3) of Schedule 4 of the Regulations require an environmental statement to contain among other things the data necessary to identify and assess the main environmental effects which enables the public to make up their own minds and then make informed representations. In his submission the question for the court was whether the required data were supplied. He submitted that they were not supplied, or alternatively, even if it was a matter for the Council to decide subject to Wednesbury reasonableness, the Regulation 19 Response could not rationally be judged to have supplied it. It failed to supply the data about pollutants necessary to come to a view about effects on water pollution or data which could rationally be so regarded. The Regulation 19 request requested data relating to existing operations and identified the water environment as an area of concern. Paragraph 11.122 of the ES had named "metals, nutrients, suspended solids and pesticides" as pollutants in the receiving waters but had given no information about types, quantities or concentrations. It referred to discharge consents and "consented limits" but gave no information about what the limits actually were. It was not surprising that the Council judged it to fail the test of being a proper or adequate environmental statement.
184. Mr McCracken submitted that the Regulation 19 response did not provide the missing data. Instead it referred back to the original ES and reiterated the carefully chosen phrase "will not, by itself…".
185. The Council's resumption of the determination process and the grant of permission without the data which it had required was (i) a breach of the prohibition in Regulation 19(7) and (ii) a breach of the obligation to take account of the indirect effects of the proposal, that is to say effects resulting from potential increase in production and cumulative effects, that is to say cumulative to effects of the existing activities of Vitacress.
186. On behalf of the Council Ms Parry placed heavy reliance on Blewett and Edwards.
187. In Blewett the Claimant challenged the grant of planning permission for the third phase of a large landfill site which was being filled with waste. The development proposed was a "Schedule 2" development as defined by the Regulations and an environmental statement was required if the development was likely to have significant effects on the environment by virtue of factors such as its natural, size or location. The application was accompanied by an environmental statement.
188. One of the grounds on which the Claimant submitted that the decision to grant planning permission was unlawful was that the environmental statement did not include an assessment of the potential impact of the use of the third site for landfill on ground water and on human health and instead unlawfully left those matters to be assessed after planning permission had been granted. The council had impermissibly approached the issue by assuming that contemplated "complex" mitigation measures would be successful. (Paragraph 31)
189. Sullivan J in his judgment recorded that the environmental statement which accompanied the application for planning permission was a lengthy document comprising 15 chapters and 7 technical appendices. He recorded that it was not suggested that the environmental statement failed to mention the potential impact of the proposed development of ground water and human health but rather it was submitted that the manner in which those issues were dealt with was inadequate. In summary the assessment of likely impact and the description of the necessary mitigation measures were left over for subsequent determination.
190. Sullivan J embarked on a comprehensive analysis of the circumstances in which an environmental statement may be challenged:

"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". Part II of Schedule 4 requires:

"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". Lord Hoffmann's speech must be considered in its context. Berkeley was a case where there had been no environmental statement. Even in such a case the House of Lords was prepared to accept that "an EIA by any other name will do as well. But it must in substance be an EIA" (see page 617). If an application for planning permission has been accompanied by a document purporting to be an environmental statement, can it be said that that document falls outside the definition of environmental statement in Regulation 2 (so that the local planning authority is unable to grant planning permission: see regulation 3(2)) because it has failed to describe a likely significant effect on the environment subsequently identified by the local planning authority, or a particular mitigation measure thought necessary by the local planning authority? The omission might have been due to an oversight on the part of those preparing the environmental statement, or to a deliberate decision because it was not considered by the author of the environmental statement that a particular environmental effect was likely, or, if likely, that it was likely to be significant, or because the author of the environmental statement was unfamiliar with the particular mitigation technique, or because he considered that mitigation was unnecessary.

37. In my judgment, the fact that the local planning authority's consideration of the application leads it to conclude that there has been such an omission does not mean that the document is not capable of being regarded by the local planning authority as an environmental statement for the purposes of the Regulations.

38. The Regulations envisage that the applicant for planning permission will produce the environmental statement. It follows that the document will contain the applicant's own assessment of the environmental impact of his proposal and the necessary mitigation measures. The Regulations recognise that the applicant's assessment of these issues may well be inaccurate, inadequate or incomplete. Hence the requirements in Regulation 13 to submit copies of the environmental statement to the Secretary of State and to any body which the local planning authority is required to consult. Members of the public will be informed by site notice and by local advertisement of the existence of the environmental statement and able to obtain or inspect a copy: see Regulation 17 of the Regulations and Article 8 of the Town and Country Planning (General Development Procedure) Order 1995.

39. This process of publicity and public consultation gives those persons who consider that the environmental statement is inaccurate or inadequate or incomplete an opportunity to point out its deficiencies. Under Regulation 3(2) the local planning authority must, before granting planning permission, consider not merely the environmental statement, but "the environmental information", which is defined by Regulation 2 as "the environmental statement, including any further information, any representations made by any body required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development".

40. In the light of the environmental information the local planning authority may conclude that the environmental statement has failed to identify a particular environmental impact, or has wrongly dismissed it as unlikely, or not significant. Or the local planning authority may be persuaded that the mitigation measures proposed by the applicant are inadequate or insufficiently detailed. That does not mean that the document described as an environmental statement falls out with the definition of an environmental statement within the Regulations so as to deprive the authority of jurisdiction to grant planning permission. The local planning authority may conclude that planning permission should be refused on the merits because the environmental statement has inadequately addressed the environmental implications of the proposed development, but that is a different matter altogether. Once the requirements of Schedule 4 are read in the context of the Regulations as a whole, it is plain that a local planning authority is not deprived of jurisdiction to grant planning permission merely because it concludes that an environmental statement is deficient in a number of respects.

41. Ground 1 in these proceedings is an example of the unduly legalistic approach to the requirements of Schedule 4 to the Regulations that has been adopted on behalf of claimants in a number of applications for judicial review seeking to prevent the implementation of development proposals. The Regulations should be interpreted as a whole and in a common-sense way. The requirement that "an EIA application" (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development. As Lord Hoffmann said in R v North Yorkshire County Council ex p. Brown [2000] 1 AC 397, at page 404, the purpose is "to ensure that planning decisions which may affect the environment are made on the basis of full information". 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 (Tew was an example of such a case), but they are likely to be few and far between.

42. It would be of no advantage to anyone concerned with the development process - applicants, objectors or local authorities - if environmental statements were drafted on a purely "defensive basis", mentioning every possible scrap of environmental information just in case someone might consider is significant at a later stage. Such documents would be a hindrance, not an aid to sound decision-making by the local planning authority, since they would obscure the principal issues with a welter of detail."

191. On the facts of the case Sullivan J rejected a submission that the environmental statement did not provide any assessment of the potential health impacts arising out of the proposal. On the contrary he said it was plain that the authors considered that there were not likely to be any significant effects on human health. It was therefore unnecessary for them to describe mitigation measures in any detail. Those who disagreed with that assessment had an opportunity to put their views to the local planning authority in the consultation process. (Paragraph 44)
192. Sullivan J then quoted from an extract of the report to the planning committee which summarised the response of consultees including one from the North Derbyshire Health authority which expressed the view that there was insufficient evidence to object to landfill sites on health grounds. From its routine data sets it indicated that there was no evidence that the local communities had suffered health effects from the existing landfill sites. (Paragraph 44). Sullivan J also quoted an extract from the report in which the Director of Planning accepted that fear regarding adverse health effects as expressed by objectors should not be viewed as baseless, since the responsibility of risk to health could not entirely be dismissed so that it was appropriate to afford some weight to that genuinely held view. The area health authority's conclusions would not in view of the Director support a rejection of the application on health related grounds. Sullivan J held that that was an entirely reasonable response to fears expressed by objectors which, while they did not raise any likely significant effect, nevertheless raised a possibility of risk to human health which "cannot entirely be dismissed". (Paragraphs 45 and 46)
193. Sullivan J referred to the fact that the Environment Agency was one of the consultees which had raised a number of matters which the interested party sought to address in an addendum report which gave further information in relation to the geological and hydrogeological setting of the proposal. He recorded that in response the Environment Agency indicated that generally speaking the report satisfied the majority of the matters which it had raised and that it had no objections in principle to the proposed development albeit it recommended a condition being imposed. He also recorded the fact that the Council stated that it was always particularly mindful of the responses made by the EA, as statutory consultees on such matters. (Paragraph 56)
194. The report to the planning committee in that case made it clear that the submission of the addendum report was not in response to a Regulation 19 request, the council not having considered that the original environmental statement should contain additional information in order to be an environmental statement. Accordingly Sullivan J did not need to address the correct approach to the test to be applied to the adequacy of the further information supplied pursuant to a Regulation 19 request.
195. However he said that there was in that case an environmental statement which did contain a description of the effect of the operation of the landfill upon the ground water: the potential impacts of uncontrolled discharge of landfill leachate were described as "low to medium". With the implementation of the mitigation measures described in the environmental statement the residual impact was described as "low".
196. Sullivan J stated:

"The description was relatively brief, but it was open to the Claimant and others to challenge it as inaccurate and/or inadequate in the consultation process. It is significant that having received the addendum report, the Environment Agency raised no objections. The environmental statement did describe the proposed mitigation measures. The Claimant complains that the description was brief, and that the proposals are in effect purely standard, providing for no more in terms, for example of the permeability of the proposed liming system in the cells, than would be required by the Landfill (England and Wales) Regulations 2002 in any event.

That may well be so, but it was open to the Claimant to argue that more stringent mitigation measures should be adopted. Although criticisms have been made in general terms of the adequacy of the mitigation measured proposed in the environmental statement, no alternative mitigation measure, let alone a more effective mitigation measure, was advanced on behalf of the Claimant during the consultation process.

The measures were described in sufficient detail to enable informed criticism of them to be made. Dr Wolfe placed reliance on the words "The appropriateness of the liming system and the site design will be assessed… as part of the PPC Permit application" in support of his submission that the Defendant had left over questions relating the effectiveness of mitigation. That submission takes the words out of context. Reading the environmental statement and the addendum report as a whole, it is plain that a particular cell design, which is not in the least unusual, and a lining system were being proposed…

If the Environment Agency had any concern in the light of the geological and hydrogeological information provided in the addendum report as to the remediation proposals contained therein, then it would have said so. Against this background the Defendant was fully entitled to leave the detail of the remediation strategy to be dealt with under condition 29.

I therefore reject ground 1of the challenge

I have dealt with it in some detail because it does illustrate a tendency on the part of claimants opposed to the grant of planning permission to focus upon deficiencies in environmental statements as revealed by the consultation process prescribed by the Regulations and to contend that because the document did not contain all the information required by schedule 4 it was therefore not an environmental statement and the local planning authority had no power to grant planning permission. Unless it can be said that the deficiencies are so serious that the document cannot be described as, in substance, an environmental statement for the purposes of the Regulations, such an approach is in my judgment misconceived. It is important that decisions on EIA applications are made on the basis of "full information", but the Regulations are not based on the premise that the environmental statement will necessarily contain full information. The process is designed to identify any deficiencies in the environmental statement so that the local planning authority has the full picture, so far as it can be ascertained, when it comes to consider the "environmental information" of which the environmental statement will be but a part." (Paragraphs 62 – 68).

197. Ms Parry submitted that the approach in Blewett does not need to be revised in the light of the decision of the ECJ in Waddenzee for two reasons. First Waddenzee was a case concerning when there is a need for an environmental impact assessment whereas Blewett, as is this case, was concerned with the scope and content of any assessment. Second the approach of Sullivan J in Blewett was expressly approved by the House of Lords in Edwards, notwithstanding that Waddenzee was cited in that case.
198. Edwards was not concerned with the 1999 Regulations but with an application to the Environment Agency for a permit to burn tyres under the Pollution Prevention Control (England and Wales) Regulations 2000. However Lord Hoffman in the following passage of his speech, with which three other members of the House expressly agreed, stated:

"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." "




199. Even if Waddenzee was on point Ms Parry submitted that Vitacress' response to the Regulation 19 request met the test of excluding on the basis of objective information a risk that the development would have a significant effect on the environment. She relied in this regard in particular on paragraphs 2.3.7, 2.4 and 3.4 of the Addendum, all of which are set out above.
200. Ms Parry submitted that in the light of the approach in Blewett as approved by the House of Lords in Edwards it is necessary and appropriate to look at the approach taken in the Officer's Report to the question of whether the ES was inadequate in failing to take account of indirect impacts of the proposed development. She submitted that it is clear that the need to take into account indirect impacts was in the mind of the Council. That appeared from the scoping opinion to which I have referred earlier.
201. The Regulation 19 request pressed Vitacress on whether there would be a capability for the development to increase production and Vitacress responded in the Addendum in the passages to which I have referred. Ms Parry submitted that the Officers' Report set out the response of the consultees including the Environment Agency ("the EA") which had no objections to the proposal subject to taking a precautionary approach in respect of recommending a number of conditions. The EA considered that the ES provided an appropriate assessment of biodiversity and the impact the development would have on the local ecology. The EA noted that chapter 11 of the ES stated that the redevelopment would not intensify the production volume of the site or require increases in water abstraction. A further letter from the EA was referred to in the Officers' Report responding to detailed third party comments in which its position was said to remain as set out in their original response. It noted that the ES said that there would be no increase in water abstraction or effluence produced as a result of the application. Its evidence showed that discharges from the Vitacress site were not having an impact on the River Test which was an SSSI. Critically it had no additional comments on the additional consultation.
202. Ms Parry submitted that it was thus clear that the EA knew the thrust of Mr Evans' case and remained satisfied that their approach was appropriate. Natural England was reported as taking a similar approach, its advice being recorded as that the River Test SSSI was unlikely to be adversely affected by the proposal provided a number of conditions were attached to any permission.
203. The Officers' Report highlighted that objectors considered that the ES was inadequate in particular in that it did not adequately address the issue of waste and pollution which were highlighted in the Secretary of State's screening direction in respect of the earlier planning application and which were referred to in the Council's screening opinion on the current application.
204. Reference was made in the Officer's Report to further letters of objections responding to the additional consultation which reiterated previous objections and raised among other additional points the contention that the EIA requirements had not been met and that the additional information supplied by Vitacress did not address the inadequacy of the ES in respect of waste and pollution matters. All those objectors' comments were part of the Environmental Information as defined in the Regulations.
205. Ms Parry submitted that the conclusions of the ES in relation to each topic area were set out and considered in the Officers' Report and there could be no serious suggestion that the ES as well as all the other further information and representations comprising the "Environmental Information" as defined in the Regulations had not been taken into account by the Council, as required by Regulation 3(2), even though the decision did not expressly state that it had taken the environmental information into consideration.
206. Ms Parry relied on the fact that the Officer's Report referred to the scoping opinion and the screening opinion from which it quoted the reasons given by the Council for requiring an ES, which referred to the Council having given careful consideration to the possible cumulative impacts of associated developments. She also relied on the fact that the Officers' Report specifically drew the attention of the committee to the fact that an ES needs to address not only direct but also indirect effects of the developments.
207. Ms Parry submitted that it was Wednesbury reasonable for the committee to accept the ES as an environmental statement in all the circumstances. The Officer's Report had drawn attention to and discussed the relationship between the proposed development and any increase in production elsewhere in the report and the Council had picked up on the use of the phrase "in itself" in the ES and requested Vitacress to deal with it in its Regulation 19 Request. The response to the request showed that there would not be an indirect effect to proposed developments.
208. As to the three points relied on by Mr McCracken as showing the potential for increased production with consequential environmental effect, Ms Parry relied on the following matters raised in Mr Mould's skeleton argument. The contention that the proposal would add over 4000 m2 to the existing packhouse much of which (some 768 m2) would consist of chilled floor space which on any view would provide at least scope for increased productive capacity was based on the passages from Mr Evans' first witness statement to which I have referred above in which he made estimates of additional space which the proposed development might free up for the deployment of packing and production. Mr Mould's response was that, as demonstrated by the extracts from Mr Rushworth's first witness statement to which I have also referred above, Mr Evans' understanding of the operations and the layout and configuration of the existing and proposed buildings was both limited and wrong.
209. In response to the contention that improved efficiencies would enable at least some increase or intensification in production for example by allowing the processing of larger individual customer orders Mr Mould referred to the statement in Mr Rushworth's witness statement that while future efficiencies in technology might occur in the future which might affect production, there were no direct or indirect likely significant environmental effects arising because of the development. Whilst it was possible that if future intensification occurred it might constitute a material change of use requiring planning permission and future assessments, the requirement to assess likely significant environmental effects could not reasonably amount to a present requirement to assess the effects of further proposals and presently unknown technological advances.
210. In Mr McCracken's skeleton argument reliance was placed on an alleged acknowledgement by Mr Rushworth that faster throughput facilitated by the development would allow "a small percentage gain". That was a reference to a response by Mr Rushworth to a question at a parish council meeting on 27 January 2010. Mr Mould submitted that that statement needed to be read in context. In response to a question: "Will the extra docking bays increase the capacity of the plant and result in an increase [sic] traffic movements?" Mr Rushworth was recorded as responding: "… 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."
211. Mr Mould submitted that the conclusion in the ES that there would be no increase in traffic volumes did not overlook any likely significant effect or indeed the risk of significant effects.
212. In response to the contention that the proposal would allow for the inspection process at Amesbury to move back to Lower Link Farm, Mr Mould submitted that there was no basis for that contention. He referred to the statement in Mr Rushworth's first witness statement that there was no intention to bring the Amesbury operation back to site and that even if Vitacress did choose to return the Amesbury processes of picking and/or inspection to the site, it would not change production volume in any way. The number of vehicle movements into or out of the site would not change because if the products were not coming from Amesbury they would be coming straight from the farms. If the Amesbury operations returned to the site the vast majority of products would go straight to the site from the farms.
213. Ms Parry submitted that the Council went to considerable lengths to put Mr Evans' concerns to Vitacress. The Regulation 19 request arose from points which he had raised for example in relation to pollution and waste product and his point about 9 bays and 9 packing lines was put to Vitacress at a meeting. His concerns were part of the environmental information before the Council even though they had been met by Vitacress.
214. Ms Parry submitted that it is clear that when the Officers' Report is read as a whole in light of the approach in Blewett this is not one of those "rare cases" where the environmental statement is so inadequate that it cannot be called and environmental statement at all. The logical consequence of the ES was that because the development would not lead to an increase in production there would not be any "indirect effects" of the development. As noted in Blewett an ES is bound to represent the developer's view of the potential significant effects of a development. Nor could it be said that the Addendum did not constitute further information within the meaning of Regulation 19(1) or that the committee could not lawfully consider that it was.
215. In oral submissions Ms Parry submitted that the liberal approach to assessing the adequacy of an environmental statement laid down in Blewett and Edwards should also apply to the assessment of the adequacy of further information supplied pursuant to a Regulation 19 request. The liberal approach in relation to the former was in part held to be justified by the consideration that the environmental statement is only a part of the environmental information as a whole to which the planning authority is to have regard and that the environmental information includes representations by consultees as to any alleged inadequacies or deficiencies in environmental statement. The same logic she submitted should apply to further information. Regulation 19(3)(j) requires the recipient of further information to publish in a local newspaper a notice stating that any person wishing to make representations about the further information should make them in writing before the date specified in accordance with sub-paragraph (f). Thus any alleged inadequacies or deficiencies in the further information supplied by the applicant are capable of being identified by consultees and, provided they are taken into account by the planning authority together with the further information, the position is the same as in relation to allegedly inadequate or deficient environmental statements.
216. Neither Ms Parry nor Mr Mould accepted that the question whether information provided in response to a Regulation 19 request is an adequate response to the request and such as to constitute "further information" as defined in Regulation 19(1) is a matter for the court to decide. They both submitted that it is for the local planning authority to decide in the same way as and subject to the same requirements held by Sullivan J in Blewett to apply in the case of environmental statements.
217. Ms Parry submitted that it would be wholly impracticable if every time a council asked for Regulation 19 information and there was a dispute as to whether the answer provided that information the parties would have to apply to the Court. The wording of the Regulations does not compel that result. Ms Parry accepted that whereas "environmental information" is defined in Regulation 2(1) as including 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 comply, there is no reference to reasonableness in the definition of "further information" in Regulation 19(1). However she pointed out that although Regulation 19(7) does not specifically refer to the question of whether the information provided is adequate as being "in the opinion of the local planning authority", neither does Regulation (2)(1) or Regulation (3)(2) specifically state that the question of the adequacy of the environmental statement is for the opinion of the local authority. Yet it is clear she submitted that that is in fact the correct approach: see Blewett.
218. She further submitted that there is nothing in the Directive which requires the court rather than the local planning authority to be the arbiter of whether the information provided in response to a Regulation 19 request is adequate. Indeed it would be surprising if there were. Directives lay down high level rules and it is for individual countries to decide how to deal with those in the light of national legal systems. The only relevant parts of the EIA Directive were the last sentence of Article 5(2) and Article 2(1).
219. Article 5(2) provided:

"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."

220. As to Article 2(1) it is a logical consequence of Blewett that it is for the local planning authority to decide if they have sufficient information for the purposes of Article 2(1). On this point Mr Mould submitted that the question whether additional information supplied by an applicant in response to a Regulation 19 request is "further information" as defined in Regulation 19(1) and referred to in regulation 19(7) collapses into the question whether it is adequate. The Blewett approach should apply to that question no less than to the question whether an initial purported environmental statement was an environmental statement or an adequate one.
221. He submitted that the scheme of the Regulations contemplates that information supplied by an applicant, whether in the initial environmental statement or in response to a Regulation 19 request may be inadequate. The scheme provides for members of the public and interested parties to make representations both on the initial environmental statement and on additional information supplied by the applicant in response to a Regulation 19 request and it prohibits the relevant planning authority from granting planning permission unless it has first taken into consideration all the environmental information: that is to say not only the initial environmental statement and the further information supplied in response to a Regulation 19 request but all representations made by anybody required by the Regulations to be invited to make representations and any representations duly made by any other person about the environmental effects of the development.
222. It was this latter point which lay at the heart of Sullivan J's conclusion as to the correct approach to be applied in Blewett.
223. The ultimate and important obligation imposed by the Regulations on the local planning authority is not to grant planning permission without first having taken all that environmental information into account. It is implicit in the scheme that it is contemplated that there may and in many cases will be differing or conflicting views expressed by the applicant and other persons making representations as to the likely environmental effects of the proposal for which permission is sought. The scheme is designed to elicit facts and opinions not only from the applicant but from members of the public and other interested bodies and parties. It is in that context that the question whether the adequacy of additional information is a matter for the relevant planning authority subject to Wednesbury constraints or the Court must be considered.
224. Given the importance of information received by the relevant planning authority after any additional information supplied by the applicant pursuant to a Regulation 19 request and commenting thereon, Mr Mould submitted that there is a very high threshold of unreasonableness which must be crossed before it can be said that additional information supplied pursuant to a Regulation 19 request is not in fact further information. Regulation 19 takes into account the possibility of yet further representations being received about the additional information supplied pursuant to the Regulation 19 request which, as in the case of representations on the initial environmental statement, may include criticisms of its inadequacy. In these circumstances the role of any information including both the initial environmental statement and any response to a Regulation 19 request must be considered in the context of all the information including all the environmental information before the council.
225. The ultimate question is whether the Council gave planning permission without regard to all the environmental information including other later information and whether, taking into account all the information before it the council could in accordance with Wednesbury constraints decide that it had enough information to decide whether planning permission should be granted.
226. Mr Mould relied on the decision of the Court of Appeal in Jones v Mansfield [2004] 2 P & C.R. 14 in which he submitted that the Court of Appeal specifically rejected the contention that the adequacy of an ES should be determined by the Court as a matter of primary fact, adopting the same approach to the adequacy of the ES as in Blewett and Edwards. In fact the issue with which the Court of Appeal was concerned in Jones was not the correct approach to assessing the adequacy of an environmental statement. The court was concerned with the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. Regulation 4(2) of those Regulations contained a similar prohibition against the grant of planning permission unless the local planning authority or Secretary of State had first taken the environmental information into consideration as appears in Regulation 3(2) of the 1999 EIA Regulations. Regulation 4(1) provided that Regulation 4(2) applied to any "Schedule 2 application" which was defined by Regulation 2(1) as one which "would be likely to have significant effects on the environment by virtue of factors such as its nature size or location." Regulation 2(2) provided that where the Secretary of State gave a direction including a statement that in his opinion a proposed development would be likely or would not be likely to have significant effects on the environmental by virtue of factors such as its nature, size or location… that statement should determine whether an application was or was not a Schedule 2 application by reason of the effects which the development would be likely to have.
227. The Court of Appeal held that the question whether the development "would be likely to have significant effects on the environmental by virtue of factors such as its nature size or location" was a matter for decision by the local planning authority subject to review on Wednesbury grounds. Dyson LJ, as he then was, pointed out that there was no express reference to the role of the local planning authority corresponding to the statement in Regulation 2(2) that where the Secretary of State gave a direction which included a statement that in his opinion proposed development would be likely [to have significant effect on the environment]that statement was determinative. However, as Lord Hoffman had said in Berkeley v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 603 at 610 J-H and 614 G- 615A, in the absence of a direction by the Secretary of State under Regulation 2(2) it was for the local planning authority to determine whether an application was a Schedule 2 application. Dyson LJ held:

"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…"

It seems to me that this passage (particularly the reference to administrative authorities having a "discretion") supports the view that I have just expressed. I take the word "discretion" to mean an exercise of judgment rather than discretion in the strict sense."

228. In the next section of his judgment under the heading: "What is the correct approach to the question whether the development would be likely to have a significant effect on the environment?" Dyson LJ concluded that the question whether a project is likely to have significant effect on the environment is one of degree which calls for the exercise of judgment. Significance in that context was not a hard-edged concept. The assessment of what is significant involved the exercise of judgment. In so holding he rejected a submission that where there is any uncertainty about the environmental effects of a development it cannot be said that it would be unlikely to have significant effects on the environmental and that an EIA would be required and he approved the following conclusions of Richards J, the first instance judge:

"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". 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 (cf. the observations of Sullivan J in Milne e.g. at para 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." (Paragraph 20).

229. Mr Mould submitted that the allegation that Vitacress was asked for but did not provide a detailed analysis of direct and indirect impacts was misconceived. There had been a request for a screening opinion, a screening opinion, a request for a scoping opinion, and a scoping report, a scoping opinion, a full ES and then, following requests for further information pursuant to Regulation 19, an Addendum to the ES. A detailed analysis of the effects of the development was therefore provided and considered by the Council as revealed by the Officer's Report. In addition to the analysis in the main ES, the Addendum made it clear that the development would not lead to the capability for increased productive capacity on the Site.
230. Mr Mould submitted that the Council carefully considered the issue of a possible future increase in productive floor space before granting planning permission. In particular in the Regulation 19 request it asked for further information as to "… the past and current levels of production… including seasonal variations in production… further… an assessment of the degree to which the development applied for could lead to the capability for more increased productive capacity in the site".
231. Mr Mould placed heavy reliance on paragraph 2.4.1 of the Addendum. In other parts of the ES and the Addendum Vitacress asserted that the proposed development would not lead to an increase in production levels. The answer in paragraph 2.4.1 went further. It referred to the Council's specific request for an assessment of the degree to which the development applied for could lead to the capability for increased productive capacity on the site and concluded: "Put simply, it will not".
232. Mr Mould also relied on paragraphs 2.3.6, 2.3.7 and 2.4.3 of the Addendum, whose contents are quoted above. It was clear from the ES that an increase in customer demand was not a natural or likely consequence of the proposed efficiency measures. In response to Mr Evans' statement that it was noteworthy that the 2003 application acknowledged that future growth plans were based on proved efficiencies, Mr Mould referred to a passage in Mr Rushworth's witness statement which explained that Vitacress had implemented efficiencies since 2002 without any of the development that was sought in 2003 having occurred. I have already referred to Mr Mould's responses to the three ways in which Mr McCracken submitted that there was potential for increased production with consequential environmental effects as a result of the development. In summary as to Ground 2 Mr Mould submitted that the Council was not misled on this issue and that there was no basis for claiming that there was any likely risk of future indirect or direct significant effects beyond those assessed in the ES. In particular there was no basis to conclude that there were possible future indirect impacts or harm to local amenity and the character of the AONB from increased HGV movements or increased risk of pollution to the Bourne Rivulet or fishing waters. The ES covered the impacts of existing operations as enlarged by the proposal.
233. Mr Mould submitted that paragraphs 2.3.7 and 2.4.3 of the Addendum were a complete answer to the question posed in the Regulation 19 request and it was not Wednesbury unreasonable the Council to accept that answer. Vitacress already had the flexibility to increase production in response to customer demand without the new development. Productive capacity was determined by the physical size of the area of the packhouse building devoted to washing mixing and packing salad products. That space would not be altered by the development which would not add productive floor space.
234. More generally Mr Mould submitted that each of the four questions posed by the Council in its Request for Further Information was answered. Not only were the factual questions answered in detail but in addition the sought for assessment was provided. The fact that the assessment concluded in each case that the original assessment in the ES was adequate because the proposal would lead to no increase in the levels of production and therefore no material change to the nature and level of discharges into the Bourne Rivulet did not mean that it was not an adequate assessment or that it was not an assessment of the potential impact of the proposed development.
235. As regards Ground 3 Mr Mould submitted that it is clear that the council took into account the effects of the proposed development including the cumulative effects. He drew attention to the fact that the Council's screening opinion gave among its reasons the fact that, given the nature of the proposed development and the activities which required ground water abstraction and water discharge into the Bourne Rivulet, it considered that the development had potential to harm the fresh water environment and that in determining that the proposed development was EIA development requiring the submission of an ES it had given careful consideration to the size scale location and cumulative characteristics of the proposed development including the possible cumulative impacts of associated development.
236. Mr Mould accepted that in the ES chapter on water and hydrology there was no express mention of cumulative impacts. The reason for that he submitted was made clear in paragraphs 11.132 and 11.133 in the Conclusion section of the chapter on water and hydrology in the ES:

"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."

237. Mr Mould drew attention to the fact that the unequivocal assertions in paragraph 11.133 were not qualified by the words "by itself". It followed as a matter of logic that if there would be no change as a result of the proposals there would be no cumulative effect on the environment flowing from the proposal taken together with the existing position beyond the existing position. This of course reflected the general position adopted by Vitacress in the ES, the Addendum and elsewhere that it had no intention to increase production levels by reason of the proposed development so that there would be no increase in discharge of effluent or pollutants as a result of the proposals.
238. Ms Parry submitted that it is clear that the information provided in response to the Regulation 19 request met the questions asked. Each of the specific requests was addressed. There were detailed sections responding to each of the requests for information on the raw materials used including origin quantity and type of produce and an assessment of the potential impacts on the ecology and water environment, information on the waste generated by the existing operations including details of the storage and the treatment of waste and an assessment of the potential impacts on the ecology and water environment, information on the past and current levels of production including seasonal variations in production and an assessment of the degree to which the development could lead to the capability for increased productive capacity on the site. In relation to raw materials the Addendum stated that the proposed development would not by itself lead to changes to the nature and quantities of salad leaves and vegetables used, the quantity of water abstracted the quantity of packaging used or any significant changes in the nature and quantities of other raw materials used. It was considered that the assessment provided at chapter 11 of the ES remained accurate and did not need to be updated.
239. In relation to the discharge of waste water the Addendum stated that Vitacress had introduced a number of measures in recent years to improve the quality of water discharged from the site and that the discharge of water from the site was controlled through eight discharge consents granted by the EA, which governed the volume and quality of water that could be discharged to the environment from the site. It stated that the proposed development would 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 stated that the ES at chapter 11 provided a full description and review of the current base line aquatic ecology and water environment and an assessment of the impact of the proposed development. It concluded that the overall impact of the proposed development on water quality and hydrology once appropriate mitigation measures had been incorporated was considered to be insignificant. It was considered that the assessment provided at chapter 11 of the ES remained accurate and did not need to be updated. As to the request for information on the past and current levels of production the Addendum provided detailed information. As to an assessment of the degree to which the development could lead to the capability for increased productive capacity on the site the Addendum stated in paragraph 2.3.6 that Vitacress did not consider that a forecast of the future production levels was relevant to the consideration of the proposed development for which planning permission was sought. The Addendum then responded in paragraph 2.3.7 and 2.4 as set out above.
240. Ms Parry submitted that it was open to Vitacress to respond in that way. As was recognised by Sullivan J in Blewett an ES remains the Applicant's assessment of the potential environmental effects. The original ES spelled out in detail the existing arrangements at the site and the existing effect on the environment of those arrangements. The EA had indicated that it did not object on the basis of those effects. Vitacress made it very clear in the Addendum that the development would not increase or change any existing effects on the environment because it could only do so if there were increased levels of production generating increased levels of waste and/or highway traffic and the Addendum confirmed the consistent position of Vitacress that whereas it had always been and remained open to Vitacress to increase levels of production without the proposed development and without recourse to any possibilities for increased production flowing there from, its motive and purpose for the development had nothing to do with increasing production or the capacity for increased production and the development would not result in any such increase.
241. The Addendum was circulated to objectors such as Mr Evans who used the statutory opportunity afforded them under Regulation 19 to make further representations to the Council including the very point that it did not follow from the fact that the development would not result in increased production and therefore in increased effects on the environment that it could not do so.
242. The Council both through its officers and through those who made the Regulation 19 request and the members of the Committee to whom the competing assertions respectively of Vitacress and the objectors were flagged up in the Officers' Report had well on board the totality of the environmental information, the nature of Vitacress' position and that of the objectors. The Committee was able to form its own judgment as to the adequacy of the ES and the Addendum in the light of the criticisms made by objectors such as Mr Evans and it is plain that it took them into account in deciding whether to grant planning permission.
243. As regards Ground 3 Ms Parry submitted that Baker v Bath adds nothing to the requirement in paragraph 4 of Part I of Schedule 4 of the Regulations that the ES should include a description of, among other things, the cumulative effects of the development on the environment. Baker v Bath itself was concerned only with the circumstances in which EIA is required for an extension to or a change to a project. In this case there was no question of the Council suggesting that no EIA was required because this was an extension or a change to something that was already there. Mr McCracken accepted that Baker v Bath did not specifically deal with the scope of EIA but argued that the logic of the principle in that case to the effect that it is contrary to the purpose of the Directive if the effects of changes or modifications are not taken into account applies. In response to that Ms Parry submitted that the effects of changes or modifications were subject to EIA. Mr Evans' real complaint she submitted was not that there was no assessment of the cumulative effects of the proposed development on the environment but rather that Vitacress' assessment of the cumulative effects was based on a bare assertion that because the development would lead to no increase in production there would be no additional indirect effects on the environment flowing from the development. That she submitted was in effect the same objection which he made in respect of Ground 2 and the answer to it was the same, namely that it was not Wednesbury unreasonable for the Council to decide that the ES and Addendum were not inadequate for that reason.
244. Ms Parry relied on Sullivan LJ's statement in Brown v Carlisle that whether there is a cumulative effect will be a question of fact in each case and adopting the Blewett approach it was a question for the Council whether the ES and/or Addendum failed to take into account any cumulative effects of the development.
245. Ms Parry submitted that very significant information about the existing use of the site was provided in the form of baseline information in the ES and Addendum.
246. The ES contained ten pages of detailed information on the baseline conditions of the existing environment in relation to water and hydrology. It covered surface water quality, chemical water quality, biological water quality details of recorded pollution incidents between 1992 and 1996, since when there had been no further recorded incidents, a chronological list of improvement works, invertebrate monitoring, fish population monitoring, hydrology and flood risk, hydrogeology and ground water quality.
247. Included in this section were the following. There was a chronological list of improvement works to enhance water quality discharged from site which entered the east and west arms of the Bourne Rivulet undertaken by Vitacress between 1995 and September 2007. This included such details as an 80% reduction in ammoniacal nitrogen used in liquid fertiliser in March 2006, the cessation of all chlorine use in July 2006 and the elimination in March 2007 of ammoniacal nitrogen from the fertiliser regime. It was recorded that in September 2007 the use of Citrox had ceased and that all salad washing was chemical free and then discharged to the parabolic screen passing through the watercress beds and from there to the stream.
248. It was recorded that the biological quality of water in the Eastern Channel and downstream in the Bourne Rivulet had been studied for many years by Vitacress and the EA as a consequence of observed impacts on invertebrates downstream of the watercress farm. As a result of its research Vitacress had introduced a number of measures in recent years to improve water quality. The improvement works to the site's water management had resulted in a reduction in the levels of nutrients and sediment entering the channel, and critically levels of PEITC (the natural mustard oil released from damaged watercress). These measures were said to have led to a significant overall improvement in biological water quality.
249. It was recorded that surveys carried out by the EA in 2007 observed a very significant increase in the population estimates of the fresh water shrimp in the Eastern Channel. There was an assessment of the environmental change without the proposals and with the proposals:

"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."

250. Ms Parry submitted that this was a more than adequate description of the existing activities on the site together with an assessment of their impact on the environment. She further submitted that the section on the effect of the proposals summarised in paragraph 11.57 taken together with the previous section describing the existing activities and an assessment of their consequences constituted a more than adequate satisfaction of the requirements in paragraph 4 of Part I of Schedule 4 of the Regulations to describe the likely cumulative significant effects of the development on the environment and the requirement in paragraph 3 of Part II of Schedule 4 to identify and assess the main effects which the development would likely to have on the environment. Paragraph 11.57 was unequivocal in its assertion that the proposals did not include any increases in the rate of production so that they would not affect the volume or quality of water being discharged into the Bourne Rivulet. Paragraph 11.56 and earlier passages in the baseline analysis and description constituted a favourable and positive assessment of the effect of the existing activities on the site. Taken together they constituted a description of the likely significant cumulative effects of the development including both the effects of the existing activities and of future activities flowing from the proposals. The fact that in Vitacress' opinion the proposals themselves would have no additional effect on the environment beyond the existing activities on site did not mean that the ES did not provide a description of the likely cumulative effects.
251. There followed a further nine pages of analysis and description of the proposals and their effect or lack thereof on the environment so far as water and hydrology were concerned. It included an assessment of the magnitude of the potential aquatic environmental impacts of the proposed development during operation of the proposed development, and details of mitigation and any residual unmitigatable effects under the headings of increased flood risk, contamination of surface water/ground water from site drainage, contamination of surface water/ground water from pack house process waters, water consumption impacts and reduced aquifer recharge/interruption of ground water flows.
252. In this section it was stated at paragraph 11.106 that the site would not generate a significantly larger volume of runoff compared to the existing situation since the land use of the site would remain largely unchanged. Reference was made to a proposed redesign to the existing fuel storage and handling area. All fuel storage tanks would be designed in accordance with current EA guidelines. As before surface run off from fuel handling areas would be routed via oil interceptors to foul sewer. It was stated that those measures would give rise to a considerable improvement in pollution control and would further reduce the risk of an accidental spillage reaching the Bourne Rivulet. (Paragraphs 11.114 and 115).
253. There was a detailed section on contamination of surface water from routine discharges from the pack house. I have already referred to paragraph 11.122. Paragraph 11.120 described the key activities occurring in the pack house as being the washing and rinsing of salad crops which took place with pure spring water abstracted from the underlying chalk aquifer. A variety of salads were washed and packed at St. Mary Bourne, including watercress grown on site and watercress and several other salad crops imported from elsewhere, the majority of which were said to be grown on Vitacress farms.
254. Paragraph 11.121 stated that at the discharge point rinse water discharges were filtered on parabolic screens (in series) to remove waste leaf material above 2mm in diameter then passed over two solids settlement trays.
255. Paragraph 11.123 described pack house discharges being pumped up from the parabolic screen and settlement trays to the head of ECB blocks were they were allowed to run through the watercress beds. The beds acted as a biological filter resulting in the removal of nutrients and other chemicals (specifically PEITC) in the discharge. It was stated that as a consequence the existing and proposed discharges from the development complied with EA discharge consent criteria and would not change post-development. Ms Parry pointed to this as an example of an assessment of cumulative effects which took into account the existing activities and the proposed activities flowing from the development. The fact that the latter added nothing to the former in Vitacress' assessment did not deprive the assessment of having the character of being cumulative.
256. Mr Mould who made similar submissions to Ms Parry on this aspect relied also on paragraph 11.132 and 11.133 which appeared in the conclusion of this section of the ES:

"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."

257. Again Ms Parry relied on these paragraphs which were unqualified and did not include the words "by itself" as constituting an adequate analysis of the indirect and cumulative effects of the proposals. Paragraph 2.2.21 of the Addendum stated:

"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."

258. Mr McCracken pointed to the insertion in that paragraph of the Addendum of the words "by itself" as supporting his submission that, along with the other occasions in which that formulation was used, the Addendum ducked and did not answer the request in the Regulation 19 request for an assessment of the potential impacts on the ecology and water environment of the raw materials used in the existing operations including the origin quantity and type of produce and an assessment of the degree to which the development could lead to the capability for increased productive capacity on the site.
259. To that submission Ms Parry responded that as regards Ground 3 this added nothing to the submission made by Mr McCracken under Ground 2.
260. Ms Parry relied on passages in the Addendum as giving adequate responses to the Regulation 19 request for information on the raw materials used in the existing operations including the origin quantity and type of produce and information on the waste generated by the existing operations including details of the storage and treatment of waste as well in each case as an assessment of the potential impacts on the ecology and water environment.
261. As to the former there were detailed breakdowns as to the seasonal variations in the geographic source of watercress salads and vegetables and a percentage breakdown as between watercress spinach wild rocket other salad leaves and organic salad leaves, and of the approximate split between the different types of salad produce passing through the packhouse. It also identified other raw materials used in the operations at Lower Link Farm including power for lighting, heating and machinery, fuel for vehicles and equipment, detergents and chemicals used for cleaning and products agricultural use including watercress plants and gravel for the beds when required. It stated that the proposed development would not by itself lead to changes to the nature and quantities of salad leaves and vegetables used at Lower Link farm which were directly related to customer demand or to changes to the quantity of packaging used or to any significant changes in the nature and quantities of other raw materials used.
262. The addendum included a description of agricultural waste arising from the watercress growing, packaging waste and other waste as well as the discharge of waste water.
263. In relation to the issue of the effect of the proposed development on the level and adverse effects on traffic Ms Parry submitted that the ES constituted a more than adequate description of the baseline traffic conditions as well as an assessment of whether there were any traffic and highways impacts arising from the proposed development.
264. The ES stated that baseline information had been collected including a detailed review of the existing access arrangements and the characteristics of the adjacent road network along with personal injury accident data and information on existing traffic levels. Those were described together with the results of a number of surveys carried out to establish current traffic levels in the immediate vicinity of the site. There were sections on personal injury accidents employee traffic characteristics and lorry movements to and from the site. These were broken down between numbers of lorry movements to and from the site in November 2007 and June 2008.
265. Under the heading "Environmental change without the proposals" it was stated in the ES that it was not expected that there would be any significant change in traffic levels if the application proposals were not to go ahead other than a relatively small growth in traffic on the surrounding roads as a result of normal traffic growth in the area consistent with traffic growth in similar rural areas in Hampshire. The existing levels of traffic generated by the present operations on the Vitacress site would be expected to continue broadly unchanged in line with the ability of the site to cope with customer demand for Vitacress products. (Paragraph 9.58).
266. Under the heading "Relevant proposals" it was stated that the proposed development would not lead by itself to any increase in the productive floor space on the site or any direct increase in production activity, production outputs, or any other operational changes likely to generate additional traffic to or from the site. (Paragraph 9.59).
267. It was then stated that there was potential for temporary traffic impacts from all the construction activities associated with the proposals related to construction staff movements delivery of materials and removal of materials from the site which would result in changes in traffic flows on the surrounding road network. They were explained and considered in detail in the following impact identification section. (Paragraph 9.60).
268. There followed a section headed "Assessment of operational traffic impacts". It stated that:

"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."

Ms Parry relied on this as an assessment of the cumulative effects of both the existing activities and the proposed development.

269. There was then a section headed "Cumulative impacts" which stated:

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

270. There was a summary at the end of this section which Ms Parry relied on as constituting a more than adequate description of the baseline activities and their effects together with the cumulative effects of the proposal. It included the following:

"9.102. The proposed development at Lower Link Farm will not lead by itself to an increase in the productive floor space within the pack house building. By the same reasoning the proposed development will, when completed, not result in an increase in traffic volumes to and from the site.

9.103. On this basis, therefore, there would be no temporary or permanent traffic impacts as a result of the operation of the proposal. There will, therefore, be no residual traffic impacts as a result of the operation of the development proposal.

Discussion

271. There are two relevant statutory prohibitions in the Regulations. Regulation 3(2) prohibited the Council from granting planning permission unless it first took "the environmental information" into consideration. Regulation 19(7) required the Council to suspend determination of Vitacress's application and not to determine it before the expiry of 14 days after the date on which "further information" was sent to the persons to whom the statement to which it related was sent or the expiry of 21 days after the date that notice of it was published in a local newspaper whichever was later.
272. As regards Regulation 3(2) the "environmental information" meant "the environmental statement including any further information, any representations made by anybody required by the Regulations to be invited to make representations and any representations duly made by any other person about the environmental effects of the development".
273. Thus the first question is whether the Council gave planning permission without first having taken into consideration all the environmental information including the ES and the Addendum. If it did, the second question is did it nonetheless act unlawfully in that either the ES was not an environmental statement as defined by Regulation 2(1) or it was Wednesbury unreasonable for the Council to treat it as such and/or because the Addendum was not further information as defined by Regulation 2(1) and Regulation 19(1), or because it was Wednesbury unreasonable for the council to treat it as such?
274. The third question is whether the Council acted unlawfully in determining Vitacress's application for planning permission because the Addendum did not constitute the "additional information" which the Council notified Vitacress it considered the ES should contain or because it was Wednesbury unreasonable for the Council to conclude that it did?
275. The answer to the first question in my judgment is clear. The Officer's Report contained a link at the very beginning of the report to both the ES and the Addendum. The Officer's Report contained a long section on environmental assessment which included the chronology of and extracts from the request for a screening opinion, the screening opinion, the request for a scoping opinion, the scoping opinion, the ES, the Addendum and representations made by statutory consultees including comments on the ES and on the Addendum.
276. The content of the ES was described and attention was drawn to the fact that several objectors had raised concerns about the adequacy of the ES both as originally submitted and as supplemented and clarified by the Addendum. Attention was drawn to the fact that specific concerns had been raised that the ES did not make reference to the need to address "pollution" and "waste products" of the factory process which had been identified in the Secretary of State's scoping opinion in the earlier planning application.
277. Reference was made to legal advice sought by the Council on the adequacy of the submitted ES and to the legal advice that there was no requirement for the Council's screening opinion to mirror the earlier opinion of the Secretary of State and it was stated that the combination of the Council's scoping opinion and subsequent Regulation 19 request clearly required an assessment of the potential impacts from waste production and pollution to be included in the ES. There was an extract from Counsel's advice which I have set out earlier and to which I refer below. Under the heading "Conclusion on the Environmental Statement" it was stated that the submitted and supplementary ES were considered to fulfil the requirements of the scoping opinion and adequately to address the issues raised in accordance with the Regulations.
278. It is in my judgment abundantly clear that the Council before making its decision to grant planning permission took into account the contents of the ES and the Addendum. The question of the adequacy or inadequacy of the ES and Addendum formed a central part of the Officer's Report and the matter was gone into in considerable detail. Competing arguments from Vitacress and objectors were highlighted, the background was explained, extracts of the Addendum were quoted as was an extract from Counsel's opinion and a conclusion was reached in the Officer's Report that both the ES and the Addendum were considered to fulfil the requirements of the scoping opinion and adequately to address the issues raised in accordance with the Regulations. In so far as the Committee is to be taken as having adopted the approach set out in the Officer's Report, it is in my view clear that they took into account the contents of both the ES and the Addendum. Moreover any member of the Committee who for any reason wanted to check for him or herself was directed at the very outset of the Report to the link to both the ES and the Addendum. Thus, subject to whether the Council was lawfully entitled to treat the ES as an ES and the Addendum as "further information", the answer to the first question is yes.
279. As to the second question it is necessary to consider the position both in relation to the ES and in relation to the Addendum. As to the ES, Mr McCracken was in my judgment right to accept that for the purposes of the hearing in front of me the adequacy of the ES was a matter for the Council subject to review on Wednesbury principles. That that is the position could not emerge more clearly in my judgment from the decision and judgment of Sullivan J in Blewett and the House of Lords in Edwards. I accept Ms Parry's submission that the decision of the ECJ in Waddenzee does not detract from that conclusion both because the decision of the House of Lords in Edwards approving the approach of Sullivan J in Blewett was made in full knowledge of the contents of the decision of the ECJ in Waddenzee which was referred to by Lord Hoffman in his speech in Edwards and also because the decision in Waddenzee was concerned with a different and prior question to that which was answered by Sullivan J in Blewett. Waddenzee addressed the question of the test to be applied in deciding whether projects should be made subject to an environmental assessment and not, as was the case in Blewett, with the question of the scope or content of an environmental assessment and in particular the requisite content and/or adequacy of environmental statements served purportedly in accordance with the Regulations.
280. Adopting the approach laid down by Sullivan J in Blewett and approved by the House of Lords in Edwards I am clearly of the view that the question whether the ES was an environmental statement which satisfied the requirements of Regulation 2(1) was a matter for the Council rather than the Court to decide, subject to the qualification that the decision of the Council was subject to judicial review on Wednesbury grounds.
281. I am also clearly of the view that the question whether the Addendum constituted "further information" within the meaning of Regulation 19(1) was a matter for the Council to decide, again subject to judicial review on Wednesbury grounds and not for the court. Although neither Blewett nor Edwards addressed that question explicitly, it is in my judgment implicit in the reasoning and approach of Sullivan J in Blewett that that is so. I accept the submissions of Mr Mould and Ms Parry on this topic, which I set out earlier and which in the interests of economy I do not repeat.
282. In Blewett Sullivan J held that the question whether a statement tendered by the applicant which purports to be an environmental statement is in fact an environmental statement or is so inadequate that it cannot properly be so regarded was a matter for the council and not the court. The trigger for the obligation on a planning authority to notify the applicant of the need to supply additional information set out in Regulation 19(1) is the forming by the relevant planning authority of the opinion that the statement submitted by the applicant which is referred to by him as an environmental statement for the purposes of the Regulations should contain additional information in order to be an "environmental statement" as defined in Regulation 2(1). Thus the role and significance of the additional information which is required to be supplied is in the context of satisfying the planning authority that the purported environmental statement complies with the definition of an environmental statement as set out in Regulation 2(1). It would in my judgment be anomalous if in all other respects the question whether the purported environmental statement complies with the definition in Regulation 2(1) is a matter for the council to decide but the assessment whether the additional information supplied pursuant to Regulation 19(1) is sufficient or adequate to lead to the conclusion that the purported environmental statement satisfies the definition of an environmental statement within Regulation 2(1) is a matter for the Court.
283. Further a conclusion that it is for the court to decide whether additional information satisfies the requirement or definition in Regulation 19(1) would in my judgment be inconsistent with the general approach underlying Sullivan J's reasoning in Blewett.
284. Sullivan J held that 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(1). Even the fact that the local planning authority's consideration of the application leads it to conclude that there has been an omission to describe a likely significant effect on the environment subsequently identified by the local planning authority does not mean that the document is not capable of being regarded by the local planning authority as an environmental statement for the purposes of the Regulations.
285. The document to be supplied by the applicant will contain the applicant's own assessment of the environmental impact of his proposal and the Regulations recognise that the applicant's assessment of these issues may well be inaccurate inadequate or incomplete. Hence the requirements in Regulation 13 to submit copies of the environmental statement to the Secretary of State and to any body which the local planning authority is required to consult. The process of publicity and public consultation gives those persons who consider that the environmental statement is inaccurate or inadequate or incomplete an opportunity to point out its deficiencies. Under Regulation 3(2) the local planning authority must consider not merely the environmental statement but also the other parts of the environmental information including any representations made by any body required by the Regulations to be invited to make representations and any representations duly made by any other person about the environmental effects of the development.
286. The fact that in the light of the environmental information the local planning authority may conclude that the environmental statement has failed to identify a particular environmental impact or has wrongly dismissed it as unlikely or not significant does not mean that the document described as an environmental statement falls outwith the definition of an environmental statement within the Regulations so as to deprive the local planning authority of jurisdiction to grant planning permission. The fact that it may conclude that planning permission should be refused on the merits because the environmental statement has inadequately addressed the environmental implications of the proposed development is a different matter altogether. Once the requirements of Schedule 4 of the Regulations are read in the context of the Regulations as a whole it is plain that the local planning authority is not deprived of jurisdiction to grant planning permission merely because it concludes that an environmental statement is deficient in a number of respects.
287. It is an unrealistic counsel of perfection to expect that an applicant's environmental statement would always contain the "full information" about the environmental impact of the 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 deficiency 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.
288. It would of no advantage to anyone concerned with the development process – applicants, objectors or local authorities – if environmental statements were drafted on a purely "defensive basis", mentioning every possible scrap of environmental information just in case someone might consider it significant at a later stage. Such documents would be a hindrance, not an aid to sound decision-making by the local planning authority, since they would obscure the principal issues with a welter of detail.
289. In my judgment most if not all of these considerations apply mutatis mutandis to the correct approach to the assessment whether additional information constitutes further information within the meaning of Regulation 19(1). In particular the additional information no less than an initial purported environmental statement will contain the applicant's own assessment of the environmental impact of his proposal and any alleged inadequacy in that assessment or in any data specified in Part 2 of Schedule 4 which is requested in the Regulation 19 request is open to criticism and comment by interested parties in representations to which the scheme gives them a statutory entitlement. If the fact that the local planning authority's consideration of the application leads it to conclude that there has been an omission in the initial purported environmental statement to describe a likely significant effect on the environment subsequently identified by the local planning authority does not mean that that document is not capable of being regarded by the local planning authority as an environmental statement for the purposes of the Regulations, why should the position be different as regards any similar omission in additional information supplied pursuant to a Regulation 19 request?
290. In my view this conclusion is further supported by the fact that the additional information required to be supplied pursuant to Regulation 19 is defined not objectively but by reference to the subjective opinion of the local planning authority as to what information is required in order for the initial purported environmental statement to be an environmental statement within the definition of Regulation 1(2). Again it would in my judgment be anomalous if the nature of the additional information required to be supplied is defined by Regulation 19(1) by reference to information which the planning authority is of the opinion is necessary in order to render the environmental statement compliant with the definition in Regulation 1(2) but the question whether additional information in fact supplied pursuant to such a request satisfies that requirement is a matter for the court to decide.
291. It follows that in my judgment the relevant question is whether it was Wednesbury unreasonable for the Council (1) to treat the ES and the Addendum as constituting respectively an environmental statement and further information such as it was required to take into account (together with the other component parts of the environmental information) before granting planning permission and (2) to conclude that it was entitled to regard the Addendum as constituting further information such that it was not precluded from determining the application by Regulation 19(7).
292. In my judgment Mr McCracken's challenges in so far as they rely on an alleged breach of the Wednesbury reasonableness requirement fail to make good any such breach. The Council had well in mind the correct legal test to be applied. The Officer's Report specifically drew attention to the need to take into account, when considering whether the ES and/or Addendum complied with the Regulations, the impact of the proposed development if necessary considered in connection with the existing development and the need for an environmental statement to address not only direct but also indirect effects of the development. The former point was made three times and the latter was elaborated by reference to the point of concern which the Council had raised with Counsel as to whether the ES had failed to assess the potential scope of activities on site.
293. Counsel accurately identified the concern as to whether the current proposals might lead to higher levels of activity on site and stated that she did not understand that the Council had any evidence to question Vitacress' assertion that the development proposed would not lead to any greater growing of watercress or packing/washing of salad leaves.
294. She thereby encapsulated the competing principal contentions advanced respectively by objectors such as Mr Evans on the one hand and Vitacress on the other.
295. Mr McCracken submitted that the Council judged the ES to be so inadequate that it was not capable of being an ES. That submission appeared to be based on the fact that the necessary condition for making a notification pursuant to Regulation 19 is that the relevant planning authority is of the opinion that the initial statement served by the applicant should contain additional information in order to be an environmental statement. The Regulation 19 request sought information on the raw materials used in and the waste generated by the existing operations and in each case an assessment of the potential impacts on the ecology and water environment and an assessment of the degree to which the development could lead to the capability for increased productive capacity on the site. It followed, so I understood Mr McCracken to submit, that because the ES did not contain the information and assessments sought by the Council, the Council must for that reason have judged the ES to be so inadequate as to be incapable of being an ES. Further (assuming that, contrary to his primary case, the assessment of the adequacy of the information continued in the Addendum was a matter for the Council) no reasonable Council could have considered that the information in the Addendum remedied or rectified the defects which the council had judged to exist in the ES.
296. I do not accept those submissions. While I see the force of the former submission, it is not supported by the approach of Sullivan J in Blewett as approved by the House of Lords in Edwards. Sullivan J explicitly held that the fact that a local planning authority's consideration of an application leads it to conclude that there had been a failure in a purported environmental statement to describe the likely significant effect on the environment subsequently identified by it does not mean that the document is not capable of being regarded by it as an environmental statement for the purposes of the Regulations. 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 and 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 are likely to be few and far between.
297. The impression given by the sequence of events is that what prompted the informal Regulation 19 request was the receipt by the Council of complaints and objections identifying perceived inadequacies and omissions in the ES and a desire on the part of the Council to put those criticisms to Vitacress with a view to eliciting its response.
298. That is in fact precisely what happened when the Addendum was served. Just as it was for the Council to decide whether the ES fell within the definition in Regulation 1(2) for the purpose of giving it jurisdiction to grant planning permission, so in my judgment it was also for the Council to decide whether the information in the Addendum was sufficient to cure or remedy any perceived defects, deficiencies or omissions in the ES and whether it supplied the additional information which the Council itself had requested so as to found jurisdiction to grant planning permission pursuant to Regulation 3(2) and to avoid the prohibition against granting planning permission under Regulation 19(7)
299. It is in my view important in this context to bear in mind that although paragraph 4 of part I of Schedule 4 of the Regulations refers to a description of the likely significant effects of the development on the environment including any indirect and cumulative effects resulting among other things from the existence of the development and the emission of pollutants and the elimination of waste, an environmental statement as defined by Regulation 1(2)(a) is required only to include such of the information 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 the current knowledge and methods of assessment, reasonably be required to compile.
300. There is in that qualification an element of judgment. There is here an echo of what Dyson LJ said in R (Jones) v Mansfield in the different context of the construction of Regulation 2(2) of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1998 and the reference therein to a statement that in the opinion of the Secretary of State proposed development would be likely or would not be likely to have significant effects on the environment by virtue of factors such as in its nature size or location.

" Whether a proposed development is likely to have significant effects on the environment involved an exercise of judgment or opinion. It is not a question of hard fact to which there can be one possible correct answer in any given case." (Paragraph 17).

He also said:

"I accept that the authority must have sufficient information about the impact of the project to be able to make an informed judgment as to whether it is likely to have a significant effect on the environment. But this does not mean that all uncertainties have to be resolved or that a decision that an EIA is not required can only be made after a detailed and comprehensive assessment has been made of every aspect of the matter. As the judge said, the uncertainties may or may not make it impossible reasonably to conclude that there is no likelihood of significant environmental effects. It is possible in principle to have sufficient information to enable a decision reasonably to be made as to the likelihood of significant environmental effects even if certain details are not known and further surveys are to be undertaken. Everything depends on the circumstances of the individual case." (Paragraph 39)

301. In that passage Dyson LJ himself echoed a passage of the judgment of Richards J which he in terms approved:

"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."

302. Vitacress in the ES set out a plethora of information on Vitacress' existing activities on site and the effects or lack of effects thereof on the environment both in relation to water and traffic. So far as the existing effects were concerned its assessment was broadly reassuring. I have quoted extensively from them earlier in this judgment.
303. I accept the submissions of Mr Mould and Ms Parry as to the adequacy of the information supplied as to the baseline existing activities and their effects and the adequacy of the assessment made by Vitacress as to the indirect and accumulative effects.
304. Thus for example it was stated that it was recorded that the biological quality of water in the eastern channel and down stream of the Bourne Rivulet had been studied for many years by Vitacress and the EA as a consequence of observed impacts on invertebrates downstream of the watercress farm and as a result of its research Vitacress had introduced a number of measures in recent years to improve water quality. That had resulted in a reduction in the levels of nutrients and sediment entering the channel and critically levels of PEITC which had led to a significant overall improvement in biological water quality. (Para 11.27).
305. Surveys carried out by the EA in 2007 had observed a very significant increase in the population estimates of the fresh water shrimp in the eastern channel. (para 11.32). Recent improvements had led to a reduction in the levels of nutrients, sediment and PEITC entering the Bourne Rivulet which had caused an improvement in biological water quality as evidenced by the water quality monitoring. (para 11.56).
306. The ES described the filtering of rinse water to remove waste leaf material and the existence of EA discharge consents which controlled discharges form the packhouse to the Eastern Channel. It was recorded that a considerable number of analytical tests in recent years on discharges form the packhouse carried out by the EA including metals nutrients suspended solids and pesticides had led to results which had not given rise to any concerns regarding the impact of packhouse discharges on the aquatic environment in realtion to the Bourne Rivulet and the River Test and associated SSSI. (para 11.122).
307. In considering whether it was Wednesbury unreasonable for the Council to regard the data supplied as to the baseline existing activities and effects as sufficient to constitute the ES an environmental statement within the meaning of Regulation 2(1) it is in my judgment not only legitimate but important to take into account the fact that not only did the ES itself record the fact that analyses carried out by the EA had not given rise to any concerns regarding the impact of packhouse discharges on the aquatic environment in relation to the Bourne Rivulet and the River Test and associated SSSI but also the Officers' Report recorded that the EA in the original consultation had no objections to the proposal subject to comments and conditions. Its comments on different sections of the ES were summarised including the view that it provided an appropriate assessment of biodiversity and the impact the development would have on the local ecology and the view that the proposed works were unlikely to affect those factors and that it had no undue concerns in respect of biodiversity.
308. It was also recorded that following a further letter of response to detailed third party comments the EA's position remained as set out in their original response. It noted that the ES said that there would be no increase in water abstraction or effluent produced as a result of the planning application and that the use of chlorine had stopped, reducing the quantity of solid discharge and the impact of salad wash which were known to be toxic to gammarus. The EA's evidence showed that discharges form Vitacress' site were not having an impact on the River Test. The EA had no evidence that the stockpiling of composting watercress/stubble/grubble mix was causing pollution of surface or ground waters and was working with Vitacress and others to help them investigate other reuse or recycling opportunities for that product. It had no comments on the additional consultation.
309. This is of particular significance since the Officers' Report recorded that the Council's conclusions that an ES would be required had been reached in consultation with the EA. In Blewett the relevant report recorded that the council was always particularly mindful of the responses made by the EA which is a statutory consultee on such matters and that after careful consideration of the geological and hydrogeological details it had raised no objections to the application in principle while recommending a number of conditions to be included if planning permission was granted. Sullivan J plainly placed considerable weight on this. As mentioned he stated that if the EA had had any concern in light of the geological and hydrogeological information provided in the Addendum report as to the remediation proposals contained therein it would have said so. He held that against that background the council was fully entitled to leave the detail of the remediation strategy to be dealt with under condition 29.
310. Mr McCracken complained that the Addendum did not supply detailed information as to the chemical constituents of the waste water and the pesticides and residues which were required to identify and assess the main effects which the development was likely to have on the environment as defined in paragraph 3 of Part II of Schedule 4. However in my judgment the question what data is required to identify and assess the main effects which a development is likely to have on the environment is not susceptible to a factual objectively ascertainable answer. It involves an element of judgment. Particularly given the broad imprimatur recorded as having been given to the existing effect on the environment resulting from Vitacress' activities by the EA, in my judgment the Council was entitled to regard the details supplied in the ES and Addendum as sufficient for the purpose of assessing the existing effect of Vitacress' activities on the environment. In any event I accept Mr Mould's submission that the Regulation 19 request did not specifically ask for the chemical constituents of the waste water and that the Addendum addressed each of the four requests for further information and assessment and answered them.
311. So far as the cumulative effects are concerned, in my judgment Ms Parry was right to submit that the adequacy of the ES and Addendum on this aspect turned on whether it was Wednesbury reasonable for the Council to accept Vitacress' repeated statements that the proposal would not result in any increase in production or in any potential adverse effects on the environment resulting from increased production. Both the ES and the Addendum repeatedly stated that there would be no increase in production as a result of the development and as a result no change to the quantity and quality of discharges form the packhouse as a result of the proposals so that the existing discharge consent would remain unchanged. (para 11.133). It was stated in the ES that both the existing and proposed discharges from the development would comply with the EA discharge consent orders and would not change post-development (para 11.123). The site would not generate a significantly larger volume or run off compared to the existing situation since the land use a site would remain largely unchanged (para 11.106).
312. As to the likely significant effects of the proposal the Council took legal advice on this point. It was alive to the concern of objectors that in a variety of ways the proposal could lead to increased levels of production which in turn could lead to adverse effects on the environment. It was also aware that Vitacress both in the ES and the Addendum and elsewhere repeatedly asserted (1) that increasing levels of production had nothing to do with its motivation for the proposal (2) that it had the ability without requiring planning permission to increase levels of production on the existing site without the benefit direct or indirect of the proposed development and (3) that in fact no aspect of the proposal would lead to an increase in levels of production.
313. Although Council officials in other parts of the Officers' Report flagged up that the possibility of increased production resulting from the proposal could not be ruled out as a matter of guarantee, they also flagged up that there was no evidence that the proposal would in fact result in increased levels of production. The Council was advised by Counsel that in those circumstances the ES was adequate. The Officers' Report concluded that both the ES and the Addendum were considered to fulfil the requirements of the Scoping Opinion and to adequately address the issues raised in accordance with the Regulations.
314. In those circumstances in my judgment it was not Wednesbury unreasonable for the Council to consider that the ES and the Addendum adequately addressed the question of indirect as well as cumulative likely effects of the proposals on the environment, that both documents constituted an environmental statement and further information respectively as defined in Regulation 2(2) and Regulation 19(1) and that the Addendum did and adequately did supply the additional information requested by the Council in the Regulation 19 request.
315. I would add that when considering whether it was Wednesbury unreasonable for the Council to conclude that the ES and Addendum were not inadequate and satisfied the definitions contained respectively in Regulation 2(1) and Regulation 19(1), it is pertinent to observe that the test in Waddenzee, namely whether "it cannot be excluded, on the basis of objective information" that the project will have a significant effect on the site either individually or in combination with other plans or projects, was said to apply to the question posed by Article 2(1) of the Directive, namely whether a project is likely to have significant effects on the environment and must therefore be made subject to an assessment with regard to its effects. In other words it was a test applicable to the prior question of whether there needs to be an environmental assessment at all and not, as in this case and as posed by the requirements for the content of a ES, to the question whether the ES included such of the information referred to in Part I of Schedule 4 as was reasonably required to assess the environmental effects of the development and which Vitacress could reasonably be required to compile, that information including "a description of the likely significant effects of the development…".
316. In my judgment it does not follow from Waddenzee that unless an ES includes a description of significant effects which cannot be excluded on the basis of objective information that the development will have on the environment either individually or in combination with other plans or projects, it is not open to a reasonable planning authority to conclude that it is nonetheless an ES within the definition of Regulation 2(1). Quite apart from my doubt as to whether the very wide test of whether a significant effect cannot be excluded on the basis of objective information applies to an assessment of "the environmental effects of the development" referred to in Regulation 2(1)(a) and the reference to "a description of the likely effects of the development on the environment" in paragraph 4 of Part I of Schedule 4, it is important to bear in mind that an ES need only include such of the Part I Schedule 4 information as is reasonably required to assess the environmental effects of the development and which the Applicant can reasonably be required to compile. In circumstances where the Applicant has made it very clear, as Vitacress did in this case, that the proposed development will not result in any changes in its activities which would have a material effect on the environment beyond that flowing from its existing activities, it cannot in my judgment be said that no reasonable planning authority could conclude that information as to what effects on the environment the development might have if, contrary to the Applicant's assertions, the development did lead to results which would or could have material effects on the environment beyond those resulting from its existing activities, is not information reasonably required to assess the environmental effects of the development which the Applicant can reasonably be required to compile.
317. It is again important in this context to keep in mind that, as emphasised in Sullivan J in Blewett, the environmental statement and further information are only a part of the environmental information which the relevant planning authority must take into account before granting planning permission. Where, as here, the environmental statement and further information state emphatically that the proposed development will not result in any changes which would or could have a significant effect on the environment beyond those already flowing from its existing activities, it is open to objectors to point out to the relevant planning authority that they do not provide information as to what the additional effects would be if, contrary to the Applicant's assertions, the development did result in changes which would or could have additional effects on the environment. Indeed that is what happened in this case. In those circumstances it is of course open to the relevant planning authority to decline to grant planning permission on the ground that

(1) in its opinion the applicant's assertion is or may not be true or reliable,

(2) that, in its view, there is a significant risk that the proposed development would lead to changes in the applicant's activities, and

(3) it is not satisfied that those changes in activities, were they to occur, would not be likely to have a significant effect on the environment. The risk of such an outcome is one which the applicant would have taken by omitting to include in its ES and/or further information an assessment of the likely significant effects which would flow from changes in activities if, contrary to its assertions, they were to result from the development.

318. If, contrary to what I have said above, the Waddenzee test is applicable in this context, I remain of the view that the Council did not act Wednesbury unreasonably in concluding that both the ES and the Addendum were adequate and satisfied the respective definitions in the Regulations. That is in part because of the qualifications in the definition of an environmental statement in Regulation 2(1) that on ES need only contain information which is reasonably required and which the applicant can reasonably be required to compile in. It is also because, applying Sullivan J's approach in Blewett, in my judgment the information contained in the two documents adequately addressed the relevant questions and contained sufficient detail. In particular I have flagged up several of the passages in the ES and the Addendum in which Vitacress made it clear that the development would not lead to increases in production or additional adverse effects on the environment.
319. Although some of those passages were qualified by the words "by itself" others were not. Thus for example paragraph 2.4.1 in the Addendum addressed the Council's specific request for an assessment of the degree to which the development applied for could lead to the capability for increased productive capacity on the site and answered:

"Put simply, it will not."

Paragraph 2.4.3 identified three theoretical ways in which capacity in the packhouse could be increased of which the second was to build more productive floor space in which to put additional machines. As to that it stated:

"This proposal will not add productive floor space."

Paragraph 3.1 stated that the proposed development would not change the nature of the operation or processes that took place at Lower Link Farm. It would improve the quality and freshness of the salad product, remove inefficiencies and deliver environmental benefits including reduced energy usage and CO2 emissions. Paragraph 3.2 stated that the proposed development would not give rise to any significant change in waste generation at the site. Paragraph 3.4 stated that section 2.4 of the Addendum provided further explanation that the development applied for did not lead to the capability for increased productive capacity on the site as it did not involve any reduction in down time, any new machines or technology to be implemented in the pack house operation.

320. In my judgment when considering the Wednesbury reasonableness of the Council's conclusions as to the ES and Addendum the fact that the EA, which had an obvious interest in subjecting both the ES and Addendum to rigorous scrutiny, maintained its previous stance of not objecting to the proposal, was a matter on to which the Council was entitled to and did attach great weight. That applies both to the answers in the Addendum to which I have referred and also to Mr McCracken's criticisms of both the ES and the Addendum for not including sufficient data to enable the environmental effects to be assessed. For example he submitted that the failure of Vitacress to identify the pesticides and residues was a fatal flaw. In my judgment that particular omission needs to be seen in the wider context both of the considerable degree of detail to which the ES and Addendum condescended as regards the produce and the waste, and the fact that, whatever the pesticides and residues consisted of, they did not lead to effects on the environment from Vitacress' existing activities which caused the EA sufficient concern to object to planning permission being given.
321. In my judgment for these reasons the answers to the second and third questions are no.
322. For these reasons in my judgment Grounds 2 and 3 fail.

Ground 4

323. Ground 4 proved to be something of a moveable feast. At its heart lay Mr Evans' contention that the existing facility at Lower Link Farm was a project within the definition of Article 4(2) and paragraph 7 of Annex II of the Directive and that because it was likely to have significant effects on the environment by virtue inter alia of its nature size or location the fact that it had not been made subject to a requirement for development consent and an assessment with regard to its effects constituted a breach of Article 2(1) of the Directive. The Directive needed to be transposed by Member States by 3 July 1988 so that it fell to be applied to the great majority of industrial intensification at the site.
324. The decision to be judicially reviewed was described in section 3 of the judicial review claim form as being the grant of planning permission made on 4 October 2010. The contention was thus initially deployed as a ground for challenging that decision. In the detailed statement of grounds in the claim form for judicial review it was stated that the decision challenged was predicated on the assumption (as given in the reasons for the grant) that the site's established lawful use was mixed agricultural/industrial by reason of acquired immunity for the industrial use under section 171 B of the Town and Country Planning Act 1990 ("TCPA"). It was asserted that in reaching that apparent conclusion the Council (1) misdirected itself because development consent cannot be obtained, including via such acquired immunity, for an EIA development (which the Lower Link Farm represented) unless the relevant environmental impact assessment has been conducted which was not the case and (2) did not take into account the evidence indicating that the Council itself believed the primary use of the site to be agricultural with any industrial use ancillary in the 1990s and in 2003; with the position remaining unclear even in 2009 when the interested party stated that the use was still "functionally linked to the historic agricultural use of the site", implying that a new non-agricultural (industrial) use had not clearly been created.
325. In the Statement of Facts and Grounds dated 1 March 2011 reference was made to a request that the proceedings be stayed pending a review by the Council whether it is obliged to take steps to remedy past breaches of EU law in relation to the site as a whole by reason of non compliance with the requirements of the Directive in relation to earlier changes to the site. The Statement of Facts and Grounds was said to set out the position so that the Council could consider what action it should take, although it was said that it might be, given the issues raised, that it would require direction from the Court either in the context of the claim for judicial review or otherwise.
326. But first it was said that the Council must consider what to do in the light of its duties under EU law.
327. It stated that the Council appeared to have concluded, though perhaps not formally decided in its planning consent, that the Vitacress site now has a mixed or composite agricultural/industrial use which was likely to have become immune from enforcement against unlawful change of use as a result of the breach having occurred more than ten years ago. It was asserted that in the context of Article 2(1) of the Directive and the virtual certainty that the existing packing/processing plant represented EIA development as referred to in the Regulations the Council was obliged to take steps to rectify the position.
328. It was said that there were various possible options that might be open to the Council depending on the correct legal analysis of the factual circumstances which in turn might depend on what change of use occurred when (in particular whether within or without the ten year period). It was said that it was not for Mr Evans at least at that stage to suggest what the appropriate action should be or what the ramifications of doing so would be. However it was asserted that the Council plainly had an obligation lawfully to consider taking action and in particular serving a notice as soon as possible particularly having had these issues including a reminder of its EU law obligations brought to its attention.
329. It was said that Mr Evans believed that a lawful approach to enforcement in the light of EU law and as canvassed in the case of Ardagh Glass v Chester City Council et el [2009] EWHC 745 (Admin) would result in a consenting process that had to take account of the Directive. Even if for some reason that did not prove feasible, "the planning authority always has the option of taking proceedings under section 102 TCPA 1990 in order to secure its obligation." (Paragraph 53).
330. It was stated that although there were to a degree self standing reasons why the planning permission granted on 4 October 2010 should be quashed in reality it made little sense to consider the lawfulness of that consent without a review of the overall position as set out above. Hence the application for judicial review being lodged on a protective basis pending consideration of enforcement by the Council.
331. In the Revised Statement of Facts and Grounds dated 27 May 2011 it was stated that the Claimant no longer sought a stay. It was further stated that judicial review was brought against not one but two decisions of the Council, the first being to grant planning permission on 4 October 2010 the second being "the decision to decide not to consider taking (or to decide not to take) enforcement action on or around 13 May 2011) (sic). The Claimant sought a declaration that the existing development at the site is unlawful, a mandatory order that the Council take appropriate remedial action in relation to the existing use of the site and an order quashing the planning permission granted on 4 October 2010.
332. It was stated that on 1 March 2011 Mr Evans wrote to the Council urging it to take enforcement action against the existing use. Having read the letter of 1 March 2011 I am not convinced that that is an accurate description of its contents and effect. It was stated that the existing proceedings should be stayed pending the Council's full consideration of the position. Although the letter from Mr Evans' solicitor stated that the Council was then in a position to issue an enforcement notice against a material change of use and addressed the question of statutory immunity by reason of passage of time, the letter concluded by expressing the hope that the materials enclosed "are helpful to the council in considering the matter further… We believe that a response from you would be appropriate before putting the matter to a judge for consideration." On 13 May 2011 the Council wrote: "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."
333. As recognised in the Revised Statement of Facts and Grounds that response did not state in terms that the Council would take no further action. However the Revised Statement asserted that it implied as much. However it also contended that the Council's response suggested that its view "[at] present" might change. It asserted that to the extent that the letter did not represent a decision the Council was deemed to have "decided not to consider whether or not to take enforcement action against the interested party and [to have] made this decision without providing any reasons for so doing]." That was a reference to order 3(1) of the Order of HH Judge Anthony Thornton QC dated 13 May 2011 that "unless the Defendant has responded to the Claimant by Wednesday 19 May 2011 in a way and with reasons which enables the Claimant to decide to withdraw its judicial review claim, the Claimant is to comply with the directions as issued on the basis that the Defendant has decided not to consider whether or not to take enforcement action against the interested party and has made this decision without providing any reasons for so doing." That he said constituted a marginal adjustment to the directions which he had already made requiring the Defendant to file supplementary grounds based on the Councils' presumed decision not to enforce again the industrial use of the site. Again in my judgment it does not follow from those amended directions that the Council in fact decided not to consider whether or not to take enforcement action.
334. It was contended in the Revised Statement of Facts and Grounds that, as acknowledged by the Council, the existing use of the site had materially changed from agricultural to predominantly industrial. It was contended that that material change of use was a development which required planning permission under the TCPA and an EIA pursuant to Article 2(1) of the Directive. It was submitted that the Council failed to engage in any meaningful way with the possibility that a material change of use took place less than ten years before which would mean that development at the site was not immune from enforcement.
335. However it was further contended that if the Council was right that the existing use of the site had been established for more than ten years that did not discharge the duty on it to take enforcement action. Given that no EIA was undertaken of the industrial use of the site which was EIA development that development was unlawful under the EIA regime. Section 191(2) of the TCPA provides that uses are lawful if they are immune from enforcement "for the purposes of this Act". That did not mean that there is not a breach of the Directive. If ten years use had accrued the provision at section 171(B) of the TCPA that granted development consent to Vitacress without prior EIA ought to be disapplied. Reliance for that proposition was placed on Ardagh Glass referred to above and the decision in the Court of Appeal in R v Durham CC ex parte Huddlestone [2000] 1 WLR 1484.
336. It was contended that it is trite law that member states are obliged to take all appropriate steps to ensure compliance with the Directive. Reliance was placed on the decision of the ECJ in R (OAO Wells) v the SSTLGR (Case C-201/02):

"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."

337. It was contended in the Revised Statement of Facts and Grounds that the options open to a planning authority in the domestic context will vary from case to case but includes service of an enforcement notice under section 172 of the TCPA (and perhaps a stop notice under section 183), the making of a revocation order under section 97 or compulsory purchase of land (see e.g. Commission v Ireland Case C-215/06, [2008] ECR I-4911, at [59]).
338. I observe that there was no reference in that summary of the options said to be open to the Council to service of a section 102 order nor was there any such reference in Mr McCracken's Skeleton Argument dated 11 June 2012. In that document it was submitted that as a facility for the packing and canning of animal and vegetable products under paragraph 7(b) of Schedule 2 to the Regulations the existing facility constituted an EIA project. The fact that at no stage had an EIA been carried out was in conflict with EU law which requires that there be development consent preceded by EIA before relevant projects are undertaken. The Directive needed to be transposed by Member States by 3 July 1988 with the result that it fell to be applied to the great majority of industrial intensification at the site.
339. The argument advanced by the Council in its summary grounds that there had not been "development consent" was irrelevant because Article 2(1) of the Directive requires development consent. Reliance was placed on Case C-215/06 Commission v Ireland [2008] ECR I-4911 where the ECJ held:

"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."

340. It was submitted that in Ardagh Glass HHJ Mole QC interpreted Article 2(1) as preventing a planning authority from permitting a developer to achieve immunity from enforcement by effluxion of time. The judge said that "the provisions of section 171B need to be re-examined and perhaps disapplied in the case of EIA Developments…". Reliance was also placed on the opinion of Advocate-General Colomer in Case C – 98/04 Commission v UK [2006] ECR I-4003.
341. In response to Vitacress' submission that because section 191(2) of the TCPA provides that uses are lawful if they are immune from enforcement there was nothing for the Council to rectify Mr McCracken submitted that to the extent that that provision can be so construed it would be necessary to disapply it on Simmenthal principles [(Case 106/77 Amministrazion Delle Finanze dello Stato v Simmenthal Sp [1978] ECR 629 at [24]).]
342. The Council and the Court it was submitted is required to ensure that all general or particular measures for remedying the failure to carry out an assessment are taken – see paragraph 68 of Wells. That may include disapplying where necessary inconsistent rules of domestic law – see Wells at paragraph 64, Huddleston and Save Britain's Heritage v Secretary of State for Communities and Local Government [2011] EWCA Civ 334; [2011] PTSR 1140.
343. In order to give effect to the Directive it was submitted that a full environmental assessment must be carried out of development on the site in particular the industrial use of the site and the pack house. Accordingly the Court was asked to make a declaration that the existing use was unlawful and a mandatory order that the Council enforce against the existing use. Further the grant of planning permission ought to be quashed for a material misdirection as to the lawfulness of the existing development.
344. Again it will be observed that there was no reference to the Council being required to make a section 102 Order. In a note supplementing their skeleton argument Mr McCracken and Mr Westaway who appeared on behalf of Mr Evans with Mr McCracken, served on 28 June 2012, the second day of what was estimated at a two day but ended up as a five day hearing, it was submitted that the duty to nullify the unlawful consequences of a breach of EU law imposed on planning authorities and the courts the duty to remedy the breach. Planning authorities it was said can do so in whole or in part inter alia either by serving an enforcement notice or by serving a discontinuance order under section 102 of the TCPA. The latter it was said could impose conditions on the use.
345. For their part Mr Mould and Ms Parry objected to what they submitted was in effect reliance for the first time very late in the day on section 102. They complained that they had not come to the hearing prepared to deal with section 102, to which there had been no reference and on which there had been no reliance in the Revised Statement of Grounds and Facts. In any event they submitted that it was premature because the Council had not considered and had never been asked by Mr Evans to consider making a section 102 order. A number of issues and questions would fall to be considered by the Council if and when that matter were required to be considered by it and these proceedings were not the appropriate forum in which to assess whether the Council ought to make such an order or was wrong not to have done so heretofore.
346. Neither the Council nor Vitacress accepted that there was any requirement for existing use or operation at the site to be environmentally assessed. It was submitted that the existing use was not a "project" within the meaning of Article 2(1) of the Directive requiring environmental assessment prior to its being granted development consent. Moreover there had been no "development consent" and none was required. There had been no decision of a competent authority. There had merely been incremental and piecemeal changes at the site over a large number of years which when analysed with the benefit of hindsight showed that there had been a material change of use which had become lawful through operation of law.
347. Mr McCracken in response to those submissions relied on a number of authorities on "salami slicing". However towards the end of the hearing both Mr Mould and Ms Parry made the following concession which was limited to the hearing in front of me, their position being reserved in respect of the concession in the event that my determination of the claim is the subject of an appeal to the Court of Appeal:

"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)."

348. It is right to record that the concession in the form in which it was finally framed was preceded by a considerable debate and discussion. The concession was initially made by Mr Mould towards the end of the fourth day of the hearing with a view to avoiding the need for the parties to develop oral submissions on the complex factual and legal questions arising out of Mr Evans' contention that the changes in use at the site constituted a breach of Article 2(1) of the Directive in that they had not been preceded by development consent or environmental impact assessment. The time estimate of two days agreed between the parties had proved to be a significant underestimate even if the application had been heard by a specialist planning judge. In the event it lasted 5 days. In the form in which it was originally made the concession was qualified by the words "it is arguable that". Mr Mould had accepted that it was arguable that by reason of the change of use prior to 2000 there was a project which required development consent and environmental impact assessment. As I understood it the reasons for that qualification were both factual and legal. Mr Mould did not accept that it was clear that the changes prior to 2000 constituted a change from agricultural and ancillary industrial use to agricultural with predominant industrial use. Further he did not accept that the incremental nature of what occurred over a period of time in terms of change of use required either development consent or environmental impact assessment as a matter of EU law.
349. Mr Mould maintained his initial form of concession on the fifth and final day of the hearing. However when Mr McCracken came to reply it became apparent that he was not content to proceed on the basis of a qualified concession which would leave open the question whether the change in use prior to 2000 constituted a breach of EU law. After much heated discussion Mr Mould indicated that he was prepared to withdraw the "arguability" qualification to his concession in the interest of confining the issues to be decided under Ground 4 to the question whether the domestic statutory time limits in the TCPA were compatible with EU law and whether the Council was obliged to make a section 102 order. By this stage none of the parties had developed oral arguments on whether there had in fact been a breach of EU law.
350. I made it clear that notwithstanding the logistical problems which would be created by a need to give the parties time to develop such arguments, I was very concerned that neither Mr Mould nor Ms Parry should feel under any pressure to make any concession beyond that which they and their clients were content to make. In the event Mr Mould was content to make the concession which I have recorded. In doing so he did of course reserve his position should the matter go to the Court of Appeal and to that extent the position of Vitacress and the Council was protected. It is right in the interest of fairness to Vitacress and the Council and in the interest of transparency that this sequence of events should be recorded.
351. This concession had the effect of considerably narrowing the area of dispute between the parties which remained live for decision by me. There were in effect two separate issues remaining to be resolved. The first is a pure question of law. It is whether the statutory immunity from enforcement action by reason of the effluxion of time conferred by section 171B of the TCPA is incompatible with Article 2(1) of the Directive and must be disapplied by the English Court. The second is whether the Court should order the Council to serve a section 102 order. It was with a view to enabling the first of those questions to be determined that Mr Mould and Ms Parry were content to make the limited concessions to which I have referred.

Immunity from Enforcement

The Statutory Framework

352. Section 171A of the TCPA provides that carrying out development without the required planning permission constitutes a breach of planning control and that the issue of an enforcement notice defined in section 172 constitutes taking enforcement action. "Development" is defined by section 55, subject to qualifications immaterial for present purposes, as "the carrying out of building, engineering, mining or other operations in, on, over or under land or the making of any material change in the use of any buildings or other land."
353. Section 171B is headed "Time Limits". It provides:

(1) Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may taken after the end of period of four years beginning with the date on which the operations were substantially completed.

(2) Where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of the period of four years beginning with the date of the breach.

(3) In the case of any other breach of planning control, no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach."

354. Although as and when buildings were erected on the site they were the subject of planning applications followed by planning permission, there were no applications for planning permission for any material change of use prior to 2000.
355. It follows that on the basis of Vitacress' concession, there was a breach of planning control by reason of a material change of use prior to 2000 by reason of section 171A but no enforcement action may be taken in respect of it by reason of section 171B(3).
356. Section 191 provides for the issue by the local planning authority of a certificate of lawfulness of existing use. Section 191(2) provides that operations for the purposes of the TCPA are lawful at any time if no enforcement action may then be taken in respect of them inter alia because the time for enforcement action has expired. Section 191(4) requires the local planning authority on application to issue a certificate of lawfulness if provided with information satisfying them of the lawfulness at the time of the application of the use. Thus as a matter of domestic law under the TCPA the mixed agricultural and industrial use existing before 2000 was lawful because the time for enforcement action in respect of it had expired.
357. If the Council had served an enforcement notice within the ten year limitation period stating that the existing use was a breach of planning control by reason of section 171A due to a change of use without planning permission having been given, Vitacress could have appealed to the Secretary of State on the ground that planning permission should be granted for mixed agricultural and predominantly industrial use. Such an appeal would have given rise to a deemed application for planning permission under section 177(5) which the Secretary of State would have had to decide. That would have required the Secretary of State to determine whether the existing use was development requiring environmental impact assessment. To do that he would have made a screening direction in respect of the existing use which was undoubtedly Schedule II development to see if it was likely to give rise to a significant environmental effect, following which he would either have directed an environmental statement to be produced or stated why he did not consider that it was likely to give rise to a significant environmental effect.
358. Thus the effect of section 171B is that, unless it is required to be disapplied as a matter of EU law, none of these steps may be initiated with the result that, as Mr McCracken submitted, the existing use as at 2000 has avoided the need for development control and environmental impact assessment such as is required by Article 2(1) of the Directive.

The Parties' Submissions

359. Mr McCracken's submission was an essentially simple one. In Cases C-6/90 and C-9/90 Francovich and others [1991] ECR I-5357 at paragraph 36 the ECJ held that under Article 5 of the Treaty

"…Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under Community law. Among these is the obligation to nullify the unlawful consequences of a breach of Community law (see, in relation to the analogous provisions of Article 86 of the ECSC Treaty, for judgment in Case 6/60 Humblet v Belgium [1960] ECR 559)."

360. The principle laid down in Francovich was re-stated by the ECJ in Wells and applied in the context of Article 2(1) of the Directive – see paragraph 65 quoted earlier. In Wells the ECJ held:

"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."

361. In Simmenthal the ECJ held:

"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."

362. Mr McCracken accepted that there is no English authority which has held in terms that the immunity conferred by section 171B and/or section 191 of the TCPA is inconsistent with Article 2(1) of the Directive and must therefore be disapplied in accordance with Simmenthal principals. However he relied on obiter dicta of Judge Mole QC in Ardagh which he submitted indicated that the judge in that case was of the view that those provisions would have to be disapplied.
363. In Ardagh the judge allowed a claim for judicial review requiring a council to take enforcement action in respect of a development which had commenced without planning permission or an environmental impact assessment in circumstances where if the council failed to take such action the development might through the passage of time acquire an immunity from enforcement action. He held that a purposive interpretation of Article 2(1) strongly suggested that for the defendant councils to permit the development to achieve immunity, whether by a positive decision not to take enforcement action or by mere inaction, would as Schiemann LJ contemplated in R (on the application of Prokopp) the London Underground Ltd [2003] EWCA Civ 961, amount to a breach of the UK's obligations under the Directive. In that case enforcement action had not yet become time barred by reason of section 171B of TCPA. The point which arises for decision in this case did not therefore arise for decision in that case.
364. However H.H.Judge Mole QC made the following obiter dicta:

"It may be the provisions of s.171B need to be re-examined and perhaps disapplied in the case of EIA development so that such development immunity would never arise and pre-emptive EIA development could only become lawful by, after full public participation, undertaking a comprehensive EIA comparing both initial and current circumstances and establishing exceptional justification." (para 110).

365. Mr McCracken relied on the decision of the Court of Appeal in Rv Durham Council and Others ex parte Huddleston [2000] 1WLR 1484. He submitted that it was a necessary part of the reasoning of the judgments in that case which is binding on me that the principles of certainty and effectiveness laid down in the European cases relied on by Mr Mould to which I shall refer do not prevent the operation of the Simmenthal principle to the disapplication of domestic legislation which by imposing time limits is incompatible with decisions of EU law which have direct effect.
366. Huddleston was concerned with paragraph 2(6)(b) of Schedule II to the Planning and Compensation Act 1991. That provision provided that where an applicant for mining permission submitted proposed conditions to which the permission being sought should be subject, if within the period of three months beginning with the service of the notice of the application the authority had not given the applicant notice of their termination the authority should be treated as having determined that the permission was to be subject to the conditions set out in the application (1488G).
367. In that case a company submitted the scheme of conditions but did not provide an environmental impact assessment. Since the council was unable to determine appropriate conditions for development within three months of the application it considered that it was deemed to have granted permission on the company's conditions by virtue of paragraph 2(6)(b). The applicant, a retired quarry engineer who lived nearby, applied for judicial review of the council's decision seeking a declaration that paragraph 2(6)(b) failed to give effect to the Directive and its requirement that Member States should ensure that an assessment was made of any significant environmental effects before giving development consent for development of the kind proposed and should be suspended. The Court of Appeal overturned the refusal by the judge of the application.
368. Allowing the appeal the Court of Appeal held that by enabling a person to revive a mining permission by registering it with the local mineral planning authority in the absence of an environmental impact assessment paragraph 2(6)(b) was in clear breach of the Directive. Under European law the court could give direct effect to an unimplemented Directive and treating an environmental impact statement as a uniform pre-requisite of a determination did not touch any legal relationship between the company and the applicant. Accordingly the applicant was entitled to rely on the direct effect of the Directive as against the council as an emanation of the state and the council and the company were obliged to treat the statutory default provision for the deemed grant of permission as ineffective. (See the headnote at 1484 F-H).
369. Mr Mould submitted that the decision in Huddleston does not require me to hold in this case that section 171B and section 191 of the TCPA must be dis-applied on Simmenthal principles as being incompatible with the Directive for a number of reasons. First he submitted that the Court of Appeal in Huddleston did not address the central question which falls for a decision in this case, namely whether by reason of the principles of certainty and effectiveness enshrined in EU law there is no incompatibility between sections 171B and 191 of the TCPA on the one hand and the Directive on the other. None of the EU cases on that topic were cited in argument or referred to in judgments of the Court of Appeal. Nor was there any reference in those judgments to that issue at all.
370. Second the only issue that was decided by the Court of Appeal in Huddleston was that the Court was not prevented in that case by the principle of horizontal effect from giving direct effect to the Directive notwithstanding that the consequence of a decision to disapply paragraph 2(6)(b) as being inconsistent with the Directive would adversely affect the mining company. In this case Mr Mould disavowed any reliance on the principle of horizontal effect.
371. Third the Court of Appeal in Huddleston was dealing with a materially different and distinguishable provision to sections 171B and 191. Paragraph 2(6)(b) purported to confer default approval of planning conditions if the Council did not determine the appropriate conditions within three months. Sedley LJ held that the 1991 Act not only manifestly failed to require an environmental impact assessment as a pre-condition of making a determination as to conditions insofar as it is deemed a determination to have been made in the circumstances described in paragraph 2(6)(b), but it positively encouraged a developer to withhold a statement in the knowledge that the resulting deadlock would shortly be resolved by operation of law in the developer's favour. This he said had been recognised by the UK Government which was at an advanced stage of consultation on the best means of bringing national law into conformity with the Directive and in the interim had strongly advised voluntary compliance. (1490D-E). By contrast in this case the question is whether provisions which impose a 10 year time limitation for a council to bring enforcement action and provide that where there has been no such enforcement action existing use becomes lawful satisfy the conditions of certainty and effectiveness such that they are not incompatible with the Directive and thus do not fall to be disapplied on Simmenthal principles.
372. For reasons advanced by Mr Mould, with which I agree, I do not consider that I am bound by the judgments or decision in Huddleston to disapply sections 171B and 191.
373. Both sides relied on the opinion of Advocate General Colomer in Commission v UK. In that case the Commission challenged the system under the TCPA whereby a lawful development certificate may be issued under section 191 on the basis that, immunity having been conferred by section 171B, previously unlawful uses and/or operations has become lawful. The Commission asserted that this was a means of evading the consent procedure set up by the Directive.
374. It is important to note that the ECJ dismissed the Commission's action as inadmissible and thus expressed no view on the merits or otherwise of the opinions expressed by Advocate General Colomer. The Court held that the Commission had not put forward any complaints confirming the actual existence of time limits for the taking of enforcement action against development which does not comply with the applicable rules even though the introduction of lawful development certificates is by its very nature inseparable from provisions laying down such rules of limitation. It pointed out that pursuant to section 191 a lawful development certificate is issued in particular when no enforcement action may then be taken against the uses or operations concerned, whether because it did not involve development or require planning permission or because the time for enforcement action has expired.
375. The Court held that as a result the action for failure to fulfil obligations did not satisfy the requirement of coherence and precision because it put before the Court only one aspect of a legal mechanism composed of two inseparable points. It held that that conclusion was all the more necessary because the arguments put forward by the United Kingdom Government to contest the failure to fulfil obligations were based in essence on the system of time limits which the Commission failed to include in the subject matter of the dispute and which accordingly could not form the basis of detailed discussion between the parties. (Paragraphs 20-23).
376. As to Advocate General Colomer's opinion, he expressed the following views:

"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."

377. Mr McCracken submitted that the Advocate General's opinion was to the effect that domestic legislation which precludes due to the passage of time enforcement action in respect of projects which, contrary to the requirement of Article 2(1) of the Directive had been implemented without prior development consent and if appropriate EIA, is incompatible with Article 2(1) of the Directive. That being so such legislation must be disapplied pursuant to Simmenthal principles. He submitted that was the effect paragraph 27 and 28 of the Opinion.
378. Mr Mould submitted that the comments of the Advocate General were not supported by the Court and in any event failed to distinguish properly between the lengthy period during which enforcement might be taken, in which time a decision by the local planning authority could be informed by environmental impact assessment, and a case where the period has expired. The Advocate General also failed so he submitted to consider the role of limitation periods and the established principle of effectiveness and to apply them to the specifics of planning enforcement. The Advocate General's line of reasoning, that the impermissible effect of the provisions under challenge was that what might otherwise have been unlawful is effectively permitted, could be applied to many limitation periods including those applicable under EU law in the TFEU.
379. Mr Mould submitted that while the effect of section 191(2) of the TCPA is to create a vested right which arises by effluxion of time, that mechanism is not dissimilar to limitation periods applied elsewhere including in the EU which are lawful provided they do not deprive the EU right of its efficacy. For example actions to review the legality of EU legislative acts must be brought within two months of the publication of the measures and the challenge: see Article 263 TFEU . A similar two month period for challenge for failures to act by the EU institutions exists in Article 265 of the TFEU and Article 46 of the Statute of the CJEU provides that:

".… [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." A national court which is called upon, within the limits of its."

380. Mr McCracken accepted that the Advocate General's Opinion is not binding as a matter of EU law because it was not approved by the Court. However he submitted that it is of great persuasive force. He also accepted that the second sentence of paragraph 33 of the Opinion acknowledged that the effect of the UK legislation was that it is not unlawful for the local planning authority not to take enforcement action in respect of use which has become immune from enforcement action by effluxion of time pursuant to section 171B.
381. Although he relied on the first part of that sentence which expressed the opinion that such immunity and/or the grant of a lawful development certificate did not make conduct which was previously unlawful lawful as supporting his argument on the requirement on the council to serve a section 102 agreement to which I refer below, that concession which, in my judgment, was rightly made, in my view undermined his submission that section 171B and/or Section 191(2) of the TCPA must be disapplied under Simmenthal principles on the basis that they are incompatible with the Directive.
382. I accept Mr Mould's submission that, contrary to the submission of Mr McCracken, the reason why the Court objected to the Commission's action as inadmissible was not technical but substantive and relevant to the question of how much weight should be attached to the opinion of Advocate General Colomer. In effect the Court was saying that because the Commission failed to challenge the existence of the time limit and immunity conferred by section 171B and limited its challenge to the system of lawful development certificate under section 191, that prevented the Court from considering the United Kingdom Government's arguments which placed reliance on the compatibility of the section 171B time limit immunity with the Directive. To that extent there is in my judgment at least some support, in the fact and reasons for the dismissal by the Court of the Commission's action, for the proposition that the Advocate General's Opinion must be treated with some caution in that there was no argument addressed based on the EU authorities which uphold domestic legislation as being compatible with EU law provided it satisfies the principles of certainty and effectiveness.
383. Moreover, the thrust of the Advocate General's Opinion appears to have been more directed to the fact that under the TCPA enforcement action on the part of a local planning authority before it becomes statute barred under section 171B is discretionary rather than mandatory than it was to the fact that section 171B precludes enforcement action after the expiry of the relevant time limit and whether that exclusion is incompatible with the Directive. See the first sentence of paragraph 27 of the Opinion and the first sentence of paragraph 33.
384. To that extent the Opinion shares some characteristics with the decision of HH Judge Mole QC in Ardagh which concerned the situation in which a local planning authority had failed to take enforcement action before rather than after the expiry of the relevant limitation period. The Judge held that a failure in such circumstances to take enforcement action which could have either prevented the time limit from expiring or led to an EIA on appeal was incompatible with the objectives of the Directive. It was not concerned with the situation which falls for decision in this case, namely whether, where the statutory time limit has expired and the immunity from enforcement action has been conferred, the statutory provision must itself be disapplied as being incompatible with the Directive. It was for that reason that HH Judge Mole's brief comments on the possibility of disapplying the statute were obiter. They were also expressed in very tentative, if not equivocal, terms and without any citation of relevant EU authority on the principles of certainty and effectiveness. They posed the question which I have to answer rather than answering it.
385. To my mind the most important part of the Opinion of Advocate General Colomer is the second sentence of paragraph 33 which, in terms, expressed the opinion that 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 precluded any re-assessment of the past in order to safeguard the stability of legal relations, which is one of the pillars of our co-existence in society. The premise of that opinion was, in my judgment, an acceptance of the compatibility of section 171B, if not also of section 191, with the Directive by reason of the principle of legal certainty. The reference to safeguarding the stability of legal relations in my judgment suggests that the Advocate General considered that not only section 171B but also section 191 were compatible with the Directive, since it is the declaration of lawfulness pursuant to section 191 which safeguards the stability of existing legal relations insofar as it protects the rights of owners and/or operators of a site whose operations have become deemed to be lawful as a result of the impossibility of further enforcement action.
386. Mr Mould submitted that the immunity from enforcement action conferred by section 171B is compatible with the Directive having regard to the established EU law principles of certainty and effectiveness. The principle of effectiveness, he submitted, is well established. In Case C-312/93 Peterbroeck v Belgium State [1995] ECR I-4599 the Court held:

"[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."

387. The principle laid down in paragraph 12 of the judgment in Peterbroeck was cited with approval nine years later by the European Court in Wells in paragraph 67, in which it was cited in footnote 77 as an authority for the following proposition:

"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)."

388. In Wells the Court applied that principle by holding that it was for the national Court to determine whether it was 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 the Directive or alternatively, if the individual so agrees, whether its was possible for him to claim compensation for the harm suffered. The necessary implication, in my judgment of the latter proposition was that domestic legislation which precluded the revocational suspension of a consent granted without prior EIA, would not necessarily be incompatible with the Directive so as to require it to be disapplied on Simmenthal principles, at any rate so long as it provided for an individual who has suffered harm by reason of the consent having been granted without EIA to claim compensation. Thus legislation prohibiting enforcement action after the expiry of the defined limitation period was capable of being compatible with the Directive and not liable to be disapplied.
389. The same in my judgment is implicit in paragraph 65 of the judgment in Wells where it was held that the particular measures which it is for the competent authorities of the Member State to take 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, include 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 for by the Directive, but only "subject to the limits laid down by the principle of procedural autonomy of the Member States."
390. In Jeroen van Chijndel and Johannes Nicolaas Cornelis van Veen v Stichting Pensioenfonds Voor Fysiotherapeuten Cases C-430/93 and 431/93 [1995]ECR I-4705 Advocate General Jacobs considered the issue of efficacy of EU law in the context of national procedural rules:

"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 Simmenthal and Factortame, the judgements in Johnston, Emmott and 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…"

391. In that case the Court held:

"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."

392. The court thus repeated what had been said in paragraph 14 of its judgment in Peterbroeck. From Peterbroeck and van Schijndel the following points emerge in my judgment.

(1) What the primacy of Community law requires is 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 for that reason that in the event of such a conflict the Simmenthal principle requires the court to disapply the substantive provision of national law.

(2) National procedural rules need only be set aside where they make it impossible or unduly difficult for substantive Community rights to be enforced.

(3) Any wider principle for setting aside national procedural rules would go further than is necessary for effective judicial protection, would unduly subvert established principles underlying the legal systems of the Member States, and could be regarded as infringing the principle of proportionality and subsidiarity.

(4) It would also give rise to widespread anomalies by affording greater protection to rights which are not by virtue of being Community rights inherently of greater importance than rights recognised by national law.

(5) The assumption underlying the system established by the Treaty is that effectiveness and proper judicial protection can normally be satisfied by national remedies enforced through national courts in accordance with national procedural rules.

(6) It is only exceptionally that the Court will need to intervene to ensure that effect is given to Community law.

(7) In deciding whether a national procedural provision renders application of substantive Community law impossible or excessively difficult it is necessary to refer to the role of the national procedural provision in question, its progress and special features can viewed as a whole, and where appropriate to take into consideration the basic principles of the domestic judicial system including the rights of the defence, the principle of legal certainty and the proper conduct of procedure.

393. In the specific context of ensuring 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 environmental impact assessment the Court in Wells held that while it is for the competent authorities of the Member State to take all general or particular measures necessary to ensure that outcome, insofar as those measures include the revocation or suspension of consents already granted, that principle is subject to limits laid down by the principle of procedural autonomy of the Member States (paragraph 65) and 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). (Paragraph 67).
394. In Denkavit Internationaal BV and Others v Kamer Van Koophandel En Fabrieken vor Midden-Gelderland and Others Case C-2/94 Advocate General Jacobs addressed the application of the principles of equivalence and effectiveness to the specific context of the limitation periods laid down by national domestic laws.

"63. The Court has consistently held in a long line of cases starting with Rewe and Commet in 1976 that, in the absence of Community rules on the subject, it is for the domestic legal system of each Member State to determine the procedural conditions governing actions at law intended to ensure the protection of the rights with individuals derive from the Directive of Community law, provided that such conditions are not less favourable than those relating to similar actions of a domestic nature nor framed so as to render virtually impossible or excessively difficult the exercise of rights conferred by Community laws.

64. That principle applies – and indeed was first applied – to limitation periods laid down by national law. The imposition by Member States of a reasonable time-limit for taking legal proceedings to challenge a decision cannot be considered to make reliance on Community law virtually impossible or excessively difficult. Such time-limits are an application of the principle of legal certainty protecting both individuals and administrations. The need for legal certainty in matters of taxation is demonstrated particularly by the present case. It is easy to see that, if companies were able to claim reimbursement of the levies paid over the last 20 years, that would entail very serious consequences for the finances of the Chambers of Trade and Industry.

65. The "virtually impossible" or "excessively difficult" test was developed further by the Court in its recent judgement in Peterbrouck, which did not concern limitation periods for actions but a procedural rule preventing litigants raising new pleas before the Belgium Cour d'Attel after expiry of a 60 day period from the lodging by the administration of copy of the contested decision and preventing the Cour d'Attel from raising a point of its own motion. The court held: [19 Thirdly, it seems that no other national court or tribunal in subsequent proceedings may of its own motion consider the question of the compatibility of a national measure with Community law.].

66. The Court concluded that, while such a 60 day period was not objectionable per se the rule was unlawful given the following special features of the procedure in question: the Cour d'Appel was the first court able to seek a reference from the Court of Justice; the rule prevented the Cour d'Appel from raising of its own motion at the hearing the question of the compatibility of the contested measure, since the 60 day period had already elapsed, no other court or tribunal could consider that question and the rule preventing points being raised by court of its own motion was not reasonably justifiable by principles such as the requirements of legal certainty or the proper conduct of procedure."

395. Although the Opinion of Advocate General Jacobs is not binding, no decision of the European Court in the 16 years since it was written was cited to me in which any contrary approach was approved by the Court. In my opinion the propositions set out in the passages which I have set out are correct. The proposition that the imposition by a Member State of a reasonable time limit for taking legal proceedings to challenge a decision cannot be considered to make reliance on Community law virtually impossible or excessively difficult was said by Advocate General Jacobs to derive from the decisions of the Court in the cases of Case 33/76, Rewe v Landwirtschaftskawmer Saarland; [1976] ECR 1989, [1977] 1CMLR 533 paras [5] and Case 45/76, Colet v Produktschat voor Siergewassen [1976] ECR 2042 [1977] 1CMLR 533 paras[17] and Amministrazione delle Finanze dello Stato v San Giorgio [1983] ECR 3595, para [12]. The proposition that such time limits are an application of the principle of legal certainty protecting both individuals and administrations was said by the Advocate General to be supported by paragraph 5 of Rewe.
396. Is section 171B a procedural rule as distinct from a substantive rule? If so does it satisfy the criteria of certainty, effectiveness and equivalence which emerge from these EU authorities?
397. As to the first question it is in my judgment clear that it is a procedural rule. It does not in terms impose substantive obligations or confer substantive rights. It prescribes a limitation period within which enforcement action must be taken where there has been a breach of planning control. It does so by precluding the taking of such enforcement action after the end of a period of years whose length depends on the nature of the breach of planning control. It is in my judgment a provision whose function is essentially procedural. It regulates the time within which a planning authority may take enforcement action to secure compliance with the requirement of the Directive that there should be, if appropriate, an environmental impact assessment and indirectly regulates the time within which interested or affected parties may seek to acquire a local planning authority to take such enforcement action to secure compliance with the Directive by instituting judicial review proceedings.
398. That is the approach taken by Advocate General Jacobs in Denkavit (see paragraph 64 and 65) and by the European Court in Rewe in the passage quoted by Auld LJ in paragraph 59 of his judgment in R (on the application of the Noble Organisation v Thanet DC [2005] EWCA Civ, [2006] Env. L.R.8 and in the case of Comet as referred to by Advocate General Jacobs in paragraph 64 of his Opinion in Denkavit . It is also in my judgment implicit in the judgment of Auld LJ in Noble and in the decision of Sullivan J in R (on the application of Hardy v Pembrokeshire CC [2005] Env. L.R.16 in the passage I quote below in which he followed the Court of Appeal in Noble.
399. It is also in my view implicit in the decision of the ECJ in Case C-406/08 Uniplex (United Kingdom) Ltd v MHS Business Services Authority [2010] PTFR 1377. In that case the ECJ held that the requirement in the Public Contracts Regulations 2006 that claims be brought "promptly and in any event within three months" was too uncertain. However, it did not suggest that the three month period to instigate a challenge was too short or unreasonable. It was the alternative formulation of "promptly" which it held would be contrary to the principles of legal certainty if the court were to have a power to exclude an action brought within three months if it was not brought promptly. The Court held:

"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."

400. In Hardy Sullivan J, as he then was, rejected an argument that a three month time limit for challenging a failure to carry out an EIA was inconsistent with the duty of the English Court to exercise its powers so as to secure compliance with the EIA Directive. In doing so he held that he was bound by the decision of the Court of Appeal in Noble. The relevant passages in Auld LJ's judgment in Noble are conveniently set out in Sullivan J's judgment:

55 "Paragraph 84 of the claim form referred to in the decision of the European Court in Wells (above). In his submissions Mr Purchas relied on this decision as authority for the proposition that this court was under a duty to exercise its powers so as to secure compliance with the EIA Directive. Securing compliance was of particular importance in the circumstances of the present case because the claimants' rights under Article 2.1 of the European Convention on Human Rights were engaged.

56 Wells was considered by the Court of Appeal in R (on the application of The Noble Organisation Ltd) v Thanet District Council & Ors [2005] EWCA Civ 782 (dated 28th June 2005). The claimants had challenged an approval of reserved matters granted by the defendant upon the basis that there had been no Environmental Impact Assessment. Auld LJ (with whom Mummery and Gauge LJJ agreed) said this in paragraphs 51 and 52:

"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..."

Auld LJ then set out paragraph 70 of the ECJ's judgment. Having summarised the claimant's arguments Auld LJ continued in paragraphs 58 to 61:

"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 a distinction 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."

401. As to the second question I am satisfied that the ten year time limit for the bringing of enforcement action laid down by section 171B(3) of the TCPA satisfies the principle of equivalence and effectiveness, does not make reliance on the Directive by persons who are affected by a breach of the requirement in the Directive for securing an EIA impossible or excessively difficult, is reasonable and is justifiable by reference to the principle of legal certainty.
402. As to equivalence the statutory time limit of ten years is not less favourable than time limits governing similar domestic actions. Thus the Limitation Act 1980 imposes a range of time limits, six years being commonplace. As to the time limit for bringing a claim for judicial review of the Council's decision that the mixed use of the site is now immune from enforcement action by operation of section 171B(3), namely three months, that is the same whether a claim is based on domestic or Community law grounds.
403. As to whether the ten year time limit renders a claim that mixed use has been instituted in breach of requirements of the Directive virtually impossible or excessively difficult to pursue, Mr Mould submitted that Vitacress' use of the site for salad packing and processing and watercress growing had been openly carried on throughout the period between 2000 and 2010. In 2003 Vitacress applied for planning permission to extend buildings on the site describing the existing use in terms which would have enabled an objector such as Mr Evans to challenge the lawfulness of its and invite the Council to take enforcement action by reason of the lack of an EIA in respect of it and failing that to institute judicial proceedings to require it to do so. The same he submitted was the case in the previous year. Vitacress had made successive planning applications identifying the range of processes carried on at the site.
404. Mr Evans had been an active participant in that planning process. He had been deeply interested in the operation of the site for years and had raised numerous objections and challenges to Vitacress' operations. The complaint now raised as to the lawfulness of the use could have been raised years ago. Persons such as Mr Evans who wished to challenge the lawfulness of the use of the site on the ground that it must be subject to EIA had ample opportunity to seek to give effect to those concerns within the ten year period vouchsafed by the section 171 time limit.
405. Although I see the forensic force of those submissions, their legal significance, as it seems to me, is more that they illustrate the general proposition that a ten year period within which a Council may take enforcement action against a perceived breach of the Directive by reason of a change in use which has not been preceded by an EIA and/or which gives an interested party such as Mr Evans an opportunity to take judicial review proceedings requiring the local planning authority to take such enforcement action cannot be said to make reliance on the Directive virtually impossible or excessively difficult. While it is possible to imagine hypothetical circumstances in which a change of use is concealed from public sight requiring special provision (see section 124 of the Localism Act 2011 inserting section 171BA, into the TCPA), I accept that general proposition. Indeed the fact that special provision was made for concealed breaches of planning law while leaving otherwise unchanged the time limits in section 171B in my judgment shows that further careful consideration was given to the reasonableness of the 171B time limits when the Localism Bill was under consideration and discussion.
406. The statutory time limit for enforcement action contained in section 171B were imposed in response to the report of Robert Carnwath QC, as he then was, entitled "Enforcing Planning Control" published in February 1989 for the Department of Environment. The Report gave careful and detailed consideration to the time limits for enforcement and the factors that had to be balanced in arriving at appropriate limitation period (see paragraph 3.4 at page 69). In particular he considered whether it would be appropriate to adopt a single limitation period of six years for all enforcement action in line with the normal limitation period in a civil action (see paragraph 3.10 at page 71). The proposal that there should be provision for changes of use to be legitimised after ten years without enforcement action was one of the main recommendations of that report. It was a considered recommendation for the rationalisation of the provisions for established uses and other immunities (see paragraph 1.3(ii) at page 62). I accept Mr Mould's submission that the ten year time limit in section 171B(3) was drafted carefully and reflected a reasonable attempt to strike a balance between the need for certainty on the part of users, operators and owners of property and the obligation of the United Kingdom and of local planning authorities to secure proper compliance with the requirement for securing EIA where appropriate. The principle of certainty has an obvious and important role to play in assessing the reasonableness of limitation periods, as was pointed out by Advocate General Jacobs in paragraph 64 of his Opinion in Denkavit. I accept Mr Mould's submission that having regard to this background and all the circumstances to which I have referred, application of the principle laid down in Peterbroeck to section 171B leads to the conclusion that it does not render application of the Directive impossible or excessively difficult.
407. It follows that in my judgment the Simmenthal principle does not apply in this case since it is engaged only if and to the extent that national law is held to to be incompatible with Community law. In my judgment section 171B is not incompatible with the Directive.

Conclusion on Enforcement.

408. For the reasons which I have given I do not consider that section 171B of the TCPA is incompatible with Article 2(1) of the Directive and the obligation pursuant to the Directive to ensure that the change of use at Lower Link Farm which came about before 2000 should be subject to an EIA. It follows that I do not accept the Claimant's fourth ground of challenge to the decision of the Council dated 4^th October 2010 to grant planning permission, namely that in assuming that the site's established mixed agricultural/industrial use with the industrial element predominant was lawful by reason of acquired immunity for the industrial use under section 171B the Council misdirected itself. (In fact the conclusion reached by the Council was that use of the site would be likely to be immune from enforcement because it occurred more than ten years earlier, as advised by the officers in the Officers' Report.) It also follows that if and insofar as the Council's letter dated 13^th May 2011 constituted a decision by the Council not to take or not to consider taking enforcement action against the existing use as alleged in the Revised Statement of Facts and Grounds and as to which I entertain some doubt, that decision was not in my judgment unlawful.

The Section 102 Argument

409. As already mentioned in the claim for judicial review dated 31 December 2010 the only decision challenged was the grant of planning permission on 4 October 2010 and the only remedy sought was an order quashing that planning permission. There was no challenge to any alleged decision not to serve a section 102 notice and no invitation to the Court by way of remedy for the Council's alleged unlawful decision to grant planning permission on 4 October 2010 that it should make an order requiring the Council itself to make an order under section 102.
410. In the Statement of Facts and Grounds dated 1 March 2011, which referred to a request that proceedings be stayed pending a review by the Council whether it was obliged to take steps to remedy past breaches of EU law in relation to the site as a whole by reason of non-compliance with the requirements of the Directive in relation to earlier changes to the site, there was no assertion that the Council was under a legal obligation to make an order under section 102 and no demand that it should make such an order. In contrast it was asserted that the Council plainly had an obligation to consider taking action and in particular serving a notice as soon as possible. That was plainly in my judgment a reference to enforcement and not to making a section 102 order. The only reference to section 102 was the statement that if for some reason enforcement was not possible "the planning authority ought to have the option of taking proceedings under section 102 TCPA 1990 in order to secure its obligation".
411. As mentioned earlier in the Revised Statement of Facts and Grounds dated 27 May 2011 it was stated that judicial review was now brought also against a second decision being "the decision to decide not to consider taking (or to decide not to take) enforcement action on or around 13 May 2011. The relief sought was a declaration that the existing development at the site was unlawful, a mandatory order that the Council take appropriate remedial action in relation to the existing use of the site and an order quashing the planning permission granted on 4 October 2010. Of those the latter could not be referable to the new alleged decision being challenged.
412. As already mentioned I am not convinced that in the letter dated 1 March 2011 Mr Evans urged the Council to take enforcement action against the existing use.
413. The Council's response dated 13 May 2011 did not in terms state that it would take no further action. The Revised Statement of Facts and Grounds asserted that to the extent that the letter did not represent a decision the Council was deemed to have decided not to consider whether or not to take enforcement action against Vitacress. Again it was not alleged that the Council had decided not to consider whether or not to make a section 102 order, still less that it had decided not to make such an order.
414. It was contended that even if the existing use of the site had been established for more than 10 years that did not discharge the duty on Council to take enforcement action. Again that was a reference to enforcement action as distinct from making a section 102 order.
415. It was contended in the Revised Statement of Facts and Grounds that the options open to a planning authority in the domestic context would vary from case to case but included service of an enforcement notice under 172, perhaps a stop notice under section 183, the making of a revocation order under section 97 or compulsory purchase of land. Even then there was no reference in that summary of the options said to be open to the Council to the making of a section 102 order. Nor was there any such reference in Mr McCracken's Skeleton Argument dated 1 June 2012. Thus the first contention that the Council might be under a duty to serve a discontinuance order under section 102 came in a note supplementing the Claimant's Skeleton Argument served on 28 June 2012 (the second day of the hearing) in which it was submitted that the duty to nullify the unlawful consequences of a breach of EU law imposed on planning authorities and the courts the duty to remedy the breach. Planning authorities can do so in whole or in part inter alia either by serving an enforcement notice or by serving a discontinuance order under section 102. The latter can impose conditions on the use.
416. I repeat this chronology because it is relevant to two preliminary submissions advanced by Mr Mould and Ms Parry. The first was that they had not come to the hearing prepared to deal with section 102. The second was that the new contention was premature because the Council had not considered and had never been asked by Mr Evans to consider making a section 102 order. Still less had it decided not to do so.
417. Section 102(1) provides as follows:

"(1) If, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of amenity) –

(a) that any use of land should be discontinued, or that any conditions should be imposed on the continuance of a use of land; or

(b) that any buildings or works should be altered or removed, they may by order

i. require the discontinuance of that use, or

ii. impose such conditions as may be specified in the order on the continuance of it, or

iii. require such steps as may be so specified to be taken for the alteration or removal of the buildings or works, as the case may be.

(2) An order under this section may grant planning permission for any development of the land to which the order relates, subject to such conditions as may be specified in the order."

418. Mr McCracken at the hearing submitted that if I rejected his principal submission under Ground 4 that the immunity conferred by section 171B is incompatible with the Directive and must be disapplied on Simmenthal principles, then the Council was under an obligation to make an order under section 102 requiring the existing use of the site to be discontinued in order to nullify the consequences of the breach of the Directive alleged by Mr Evans.
419. He relied for that proposition in particular on paragraph 36 of Francovich and paragraph 64 of Wells, both of which establish that Member States are required to nullify the unlawful consequences of a breach of community law.
420. That he submitted is a matter of pure law to which no evidence could make a difference. The Council and Vitacress had been specifically alerted to section 102 in March 2011 in the Statement of Facts and Grounds and that warning had not been withdrawn in the Revised Statement of Facts and Grounds. He submitted that even if there is immunity from enforcement by virtue of section 171B such immunity does not apply to section 102 where there has been a breach of domestic law and thus it cannot apply in respect of a breach of EU law by reason of the principle of equivalence.
421. Mr McCracken suggested by way of an example wording for a mandatory order which he invited me to make:

"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."

422. He later suggested an alternative as follows:

"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."

423. Mr Mould submitted that no question of a section 102 order being ordered by the Court could arise at this stage. If I accepted Mr Evans' contention that Community law requires that disapplication of the section 171B(3) time limit the remedy would be an enforcement notice which would enable an appeal and engage Regulation 25 of the EIAR Regulations 1999. The discontinuance power under section 102 would be superfluous and unlikely to attract the Council since it would risk having to pay compensation which risk would not arise in the case of an enforcement action. Since I have rejected that contention of Mr Evans that scenario does not arise.
424. If on the other hand, as I have now done, I were to hold that the section 171B(3) time limit is compatible with Community law then Mr Evans' right to bring his complaint and to seek enforcement action to remedy the alleged breach of the Directive will have been vindicated under the national procedural rules. Having had his chance and failed to take it within the 10 year period vouchsafed for that purpose he was not entitled to claim further relief including declaratory relief from this Court.
425. Notwithstanding the latter submission which appeared in a written closing speaking note, Mr Mould in oral closing submissions accepted that immunity under section 171B did not of itself preclude the Court from making an order requiring the Council to make an order under section 102. That was partly because the power to make an order under section 102 is not dependent on proof of illegality and partly because immunity not being a prohibition against the making of an order where domestic law has been broken the principle of equivalence must have the same effect where there has been a breach of EU law.
426. Whether those two submissions are reconcilable does not need to be resolved if I accept Mr Mould's and Ms Parry's submission that it would be premature for the court to intervene at this stage. The making of a section 102 order is a potentially draconian matter. Vitacress is a thriving business employing a very large number of people whose livelihoods depend upon its continuing its existing use of the site. Section 102 appears in the planning section of the TCPA (Part 3) and not the enforcement section (Part 7). It is a discretionary power which is exercisable on its face only if, having regard to the development plan and to any other material considerations, it appears to a local planning authority that it is expedient in the interests of the proper planning of their area (including the interests of immunity) that any use of land should be discontinued or that any conditions should be imposed on the continuance of a use of land or that any buildings or works should be altered or removed. Not least because of the potential seriously adverse consequences on Vitacress and its employees and because of the obligation on the Council to pay compensation if such an order is made, any decision whether to make such an order would ordinarily be expected to be taken by the Council only after careful consideration and, it is to be assumed, after having given an opportunity to interested parties to make representations.
427. None of that has ever happened. Nor has Mr Evans ever demanded that it should. Nor, before the hearing, has Mr Evans ever put the Council on notice that if it fails to issue a section 102 order, even in the event of a court holding that the existing use was immune from enforcement, it would be acting unlawfully.
428. Mr Mould submitted that in the circumstances of this case it would not be appropriate for the court to make a declaration that the existing development at the site is unlawful. In my judgment such a declaration would be inappropriate. First, as I have held, the existing use is immune from enforcement by reason of section 171B which is not incompatible with the Directive. Second, without deciding the point, I see force in Mr Mould's submission that to grant such relief to Mr Evans would be inconsistent with the effect of the immunity and also with the consequential effect of section 191(2) whereby for the purposes of the TCPA uses are lawful at any time if no enforcement action may then be taken in respect of them because the time for an enforcement action has expired. Mr McCracken accepted that paradoxically section 191(2) complies with the principle of certainty. I see force in the argument that there is no material difference between the certainty flowing from section 191(2) and that flowing from section 171(B). Part of the reasoning of Advocate General Jacobs in Denkavit in holding that appropriate limitation periods laid down by national law are not incompatible with EU law was the need for legal certainty. He gave by way of an example that if companies were able to claim reimbursement of the levies paid over the last 20 years that would entail very serious consequences for the finances of the Chambers of Trade and Industry (paragraph 64).
429. In the current context it is in my judgment clear that an essential part of the purpose of the limitation periods laid down by section 171(B) is precisely to confer certainty on users and operators. It is hard to see a significant difference between that certainty and the certainty conferred by the resulting effect of section 191(2). I see the force of Mr Mould's submission that that certainty would be undermined if an affected person such as Mr Evans who is prevented from requiring the Council to serve an enforcement notice on Vitacress requiring it to cease its existing use were nonetheless entitled to a declaration of illegality.
430. In any event I see no practical utility for such a declaration. As appears earlier the argument on Ground 4 proceeded ultimately on the basis of a reluctant concession made in order to enable the immunity point to be decided. Mr Mould and Ms Parry expressly reserved their positions should the matter go further. Since I have rejected the submission that 171B immunity should be disapplied, such a declaration would not be a necessary precondition for the making of an order under section 102 which, as I have indicated, does not depend upon proof of illegality.
431. As to section 102, in my judgment it would be premature and inappropriate for the Court to require the Council to make an order under section 102. In my judgment the reality is that although there was the odd reference to section 102 in some of the earlier documents, Mr Evans never demanded that the Council should make a section 102 order even if enforcement was not a legal avenue open to it and that failure to make such an order would be unlawful. There is no evidence that the Council has considered the question whether it should make a section 102 order in order either to procure a cessation of the existing use either permanently or pending a planning application by Vitacress for the existing use. For those reasons I decline to direct the Council to make such an order.

Conclusion.

432. For the reasons set out above I reject all the Grounds relied on by Mr Evans in support of his claim for judicial review which is accordingly dismissed.