On the second day of a High Court hearing that began on Thursday (March 5) (see letsrecycle.com story), Robert McCracken QC told a top judge that Quinn Glass Ltd put up the multi-million-pound factory near Chester in 2005, although it knew full well that its entire investment was “at risk”.
Ardagh argues that local planning authorities – Chester city council and Ellesmere Port and Neston borough council – simply have no power to grant retrospective planning permission, because no Environmental Impact Assessment – required by EU law – was carried out at the outset.
Mr McCracken, representing Ardagh, is also battling to persuade Judge David Mole QC that the councils are now legally obliged to immediately stop the factory from operating and issue an enforcement notice requiring its demolition.
However, Ardagh's judicial review challenge is being staunchly resisted by both councils – with the backing of Quinn Glass, who say such draconian steps would be “disproportionate” and cause unnecessary suffering amongst a workforce of hundreds who would all lose their jobs.
Mr McCracken claimed today that Quinn Glass had in the past said that, if it did not receive planning consent for the factory, it would strip the plant of all its massively costly equipment and move the operation to northern France.
The QC said that, after the factory was built without planning consent, Ardagh “had every hope that the councils would approach the matter of enforcement properly”.
But, urging the judge to issue “mandatory orders” against both councils, forcing them to bring to an end to the breach of planning control, he told the judge: “This is a case where one simply cannot rely on the authorities to do the right thing”.
Earlier, the judge was told that Ardagh is concerned that the four-year time limit for the councils to take enforcement action against the plant is due to expire this year and, if that happens, the factory will become effectively “immune” to planning control and a fait accompli.
And Mr McCracken argues that the “precautionary approach” to environmentally sensitive planning issues demands that the councils take enforcement action straight away.
Councils
Mr Vincent Fraser QC, putting the councils' case, said that the land on which the factory stands had been left contaminated by its former use for a power station and “at no stretch of the imagination could be called a greenfield site”.
He added that planning consent had been granted for a smaller glass manufacturing plant on the site in 2003 after full consideration of environmental issues.
When Quinn Glass, in 2004, asked for permission to build a bigger factory, the council mistakenly took the view that this could be dealt with by “amendment” to the 2003 permission.
But Mr Fraser said: “It was a mistake made in good faith and there was no question of the local planning authority ignoring the (environmental) impact”.
The councils had carefully considered taking enforcement action at an early stage after it became clear that the factory was being built without “express planning permission”.
“Dealing perfectly properly with a difficult situation”, the QC said the councils decided that any impact on local people was not serious enough to make it “expedient” to order an end to the development.
The factory construction, “substantially completed” in 2005, went ahead in line with the conditions attached to the original 2003 planning permission – although on a larger scale – and minimal numbers of complaints were received from local residents, the QC said.
Mr Fraser has told the judge the councils are “not prepared to allow” the plant to become immune from enforcement action by expiry of the four-year deadline and are keeping the possibility of enforcement action under review.
Although Ardagh says the deadline will pass next month, the councils argue they have until November to decide whether or not to take action against Quinn Glass.
Mr Fraser says the councils are under no legal obligation to take enforcement action to remove the factory and are empowered to “retrospectively regularise” the position by granting Quinn Glass's latest applications, subject to the Secretary of State's authorisation.
Secretary of State
The judge has also been told that, even were the councils to issue an enforcement notice requiring the factory's demolition, it would not be the end of the matter as Quinn Glass could appeal against it to the Secretary of State for Communities and Local Government.
Dublin-based Ardagh argues the factory's very existence is a violation of both domestic and EU law, which demands that planning consent must not be given for such sensitive projects without first carrying out a detailed Environmental Impact Assessment (EIA).
But Mr Neil King QC, representing Quinn Glass, also based in Ireland, says the company's planning applications could not be granted anyway, without “special authorisation” from the Secretary of State, and that Ardagh's court challenge is therefore “an exercise in futility” and, in any event, too late.
The barrister argues that, to force the factory's demolition, would be a “disproportionate” response, costing millions of pounds – along with large numbers of jobs and “causing obvious hardship to those involved”.
Quinn Glass, which says it has acted with full sensitivity to the environment, put in its latest planning applications in February last year and the councils say their ruling on them is “imminent”. However, they have been put in abeyance pending the outcome of the High Court hearing.
The case is set to continue well into this week and, given the vital importance of the issues raised, Judge Mole is expected to reserve his decision until a later date.
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