Practice and Procedure


PUBLISHED July 7, 2003

Decisions by local planning authorities not to take enforcement proceedings were not development consents within Art.1(2) Council Directive 85/337/EEC which would require an environmental impact assessment under the terms of the Directive.Appeals from a judgment of Collins J concerning the effect of Council Directive 85/337/EEC as amended on the rights and obligations arising under the Town and Country Planning Act 1990. London Underground ('LUL') proposed to build a railway line known as the East London Line Extension ('ELLX'). LUL prepared an environmental statement and after a public inquiry obtained a deemed grant of planning permission under the London Underground (East London Line Extension) Order 1997 SI 1997/264. The ELLX would run through and require demolition of part of the Bishopsgate Goods Yard ('the BGY'). Condition 21 of the permission provided that the development could not commence until certain exchange land forming part of Shoreditch station had been made suitable for use as open space. LUL started the development in breach of that condition once it became apparent that the landscaping of the exchange land could not be carried out without closing Shoreditch station which would not happen until the new line had been built and was operative. Two objectors to the demolition of the BGY (Hammerton and Prokopp) commenced proceedings based on the breach of condition 21. In R (Hammerton) v London Underground Ltd (2002) 47 EG 148 (CS) Ouseley J declared that material operations were undertaken in breach of the condition but declined to quash the LUL decision or declare that it was unlawful for LUL to carry out the works contemplated, on the basis that enforcement action was a matter for the local planning authorities ('LPAs'). The LPAs (Hackney and Tower Hamlets) resolved not to take enforcement action on the basis that LUL, rather than submitting a new planning application which would require an environmental statement, would enter into an agreement under s.106 of the 1990 Act which would control the way the work was carried out. In the proceedings brought by Prokopp he alleged that the Directive envisaged that throughout the execution of the development there should be in force a consent issued by the appropriate national authorities. The judge declared that it would be unlawful for the LPAs to resolve not to take enforcement action without a sufficient planning obligation under s.106 being in place. He held that there had been substantial compliance with the requirements of the Directive. The LUL, LPAs and Prokopp appealed. It was common ground that there was an adequate environmental impact assessment leading to the deemed grant of planning permission, that the permission had lapsed because the project was not commenced within the five years specified in a condition attached to the permission, and that the work done within the five years did not constitute the start of the project thereby keeping the permission alive because it was work done in breach of condition 21.HELD: (1) The Directive did not attempt to impose on member states detailed control throughout the implementation of a project. The purpose of the Directive would not be undermined if member states were left free to police the progress of a project once it had started in whatever manner they regarded as appropriate. It was not implicit in the Directive that where, as had happened in this case, a time condition imposed by the national authorities was broken the consultation process required by the Directive must start all over again. Nor would the purpose of the Directive be undermined if LPAs in such circumstances decided not to take enforcement action provided that certain conditions were fulfilled by the developer. The Directive did not require enforcement action in the situation under consideration. (2) In any event the decisions taken by the LPAs in relation to enforcement proceedings were not development consents within Art.1(2) of the Directive. Such entitlement if any as the developer had to continue to proceed with the project stemmed from the permission granted in 1997. The LPAs were entitled to serve enforcement notices should they so wish and had not promised not to do so in future. Their resolutions were merely to refrain from taking enforcement action at this time. (3) Where a developer was acting in breach of planning control it was in the first instance for the LPAs and not the court to consider whether to take enforcement proceedings. LPAs were only entitled to do so where they considered it expedient. They did not consider it expedient in this case. The court would not interfere unless there was reason to believe that the LPAs were acting unlawfully. There was no obligation under domestic law or the Directive to take enforcement action. The LPAs were free in law to take no action to inhibit the continued development of the ELLX. (4) Railtrack had obtained a listed building consent in respect of the part of the BGY falling within Hackney and Hackney could not therefore enforce against the ELLX project to that extent. It would be irrational for Tower Hamlets to enforce in respect of the such part of the BGY as fell within that borough. Irrationality of enforcement action fell within the public law exception to the principle in Whitley v Secretary of State for Wales (1992) 3 PLR 72 that development in breach of condition was to be ignored for the purposes of deciding whether that permission had been implemented. Enforcement action was therefore not available in any event against the continued development of the ELLX.Appeal of Prokopp dismissed. Cross-appeals of LUL and LPAs allowed.

[2003] EWCA Civ 961