Retrospective validation, exceptional circumstances and the Whitley principle

Waste landfill iStock 000005619965XSmall 146 x 219The High Court recently upheld approvals for Cardiff’s Energy from Waste scheme. Simon Bird QC analyses the case.

Giving judgment on 27 March 2014, Wynn Williams J has rejected the challenge made by local resident Pauline Ellaway and by Cardiff Against the Incinerator to approvals relating to Viridor’s Energy from Waste Plant in Cardiff.

On 13 February 2013, Cardiff County Council had resolved to approve details submitted by Viridor under 15 pre-commencement conditions attached to a 2010 planning permission for the EfW plant. The development is an EIA development and the 2010 application was supported by an environmental statement. The planning permission does not expire until June 2015.

The county council had purported to discharge the conditions in early 2012 but had not treated the applications as subsequent applications for the purposes of the Town and Country (Environmental Impact Assessment)(England and Wales) Regulations 1999. Recognising its error, in July 2012 it decided that it should re-consider the applications in accordance with the requirements of the 1999 Regulations. However, by this date Viridor had entered into contracts for the construction of the EfW plant and development commenced in July 2012 in breach of the pre-commencement conditions.

At its meeting on 13 February 2013, the county council considered (a) whether the applications to discharge the conditions should be approved and (b) whether or not to take enforcement action in relation to the breach of conditions. It resolved to approve the applications and not to take enforcement action. The county council relied on the well established exception to the Whitley principle which provides that works undertaken prior to formal approval may lawfully commence a development where the application is made before the expiry of the relevant planning permission, the works undertaken accord with the submitted details and approval is subsequently granted. It recognised that approval should be granted retrospectively in relation to an EIA development only in exceptional circumstances.

The claimant, amongst other grounds, challenged the grant of the approvals and the retrospective validation of the works undertaken on the ground that the exception to the Whitley principle did not apply in relation to EIA development, the exception being insufficiently certain to comply with Community law, and that its application was not consistent with the exceptional circumstances test established in Commission v Ireland C125-06 and R (Ardagh Glass Limited) v Chester City Council [2010] 1 P&CR 15. The claimant argued that the only lawful option open to Viridor and the county council in the circumstances was an application for retrospective planning permission under section 73A of the 1990 Act.

Wynn Wiiliams J rejected this argument. He held that the exception to the Whitley principle was sufficiently clear and predictable to comply with Community law and that on the facts the council did conclude and was entitled to conclude that exceptional circumstances existed justifying the retrospective validation:

“The rationale of the exception is to avoid unnecessary formality and wasted time and expenditure. The terms of the exception are, in my judgment, clear and self-contained. It is obvious when the exception will apply. The fact that this exception is the product of judicial decision making as opposed to Parliamentary enactment does not mean that it is unpredictable, unclear, imprecise or uncertain. In truth both the Whitley principle itself and the exception relied upon by the defendant are clear and their application in individual cases is entirely predictable. The fact that the Court of Appeal has acknowledged that the exceptions to the Whitley principle may not be closed does not mean that the acknowledged exceptions are unpredictable or uncertain.”

Simon Bird QC is a barrister at Francis Taylor Building. He appeared for Cardiff County Council in this case.