When a development plan is passed which should have been subject to an Environmental Impact Assessment (EIA) but was not, does the granting of a retrospective consent for EIA development have force or is the planning authority obliged to take action against an unauthorised EIA development?
That question recently came before the Court of Appeal when an objection was raised against the retrospective granting of consent for an EIA development of a glassworks in Chester.
The Court heard that it was accepted that the development was an EIA development. It agreed that, in principle, retrospective planning permissions could be granted in such cases.
However, such permission could only be obtained by an action to oppose an enforcement notice against the unauthorised development. Local authorities are, in the Court’s view, obliged to serve enforcement notices when unauthorised EIA developments occur. Failing to do so would allow unauthorised EIA development to take place ‘by the back door’ and failing to commence action would eventually render the development immune from enforcement proceedings.
Ardagh Glass v Chester City Council  EWCA Civ 172.