Respondent planning authority resolving to grant outline planning permission for development – Respondents approving reserved matters – Respondents not requiring environmental assessment – Local resident seeking judicial review – Claim dismissed – Resident appealing – Whether respondents required to consider need for environmental assessment at reserved matters stage – Directive 85/57/EEC – Whether domestic legislation failing properly to implement directive – Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 – Appeal dismissed
The respondent council owned Crystal Palace Park and was the local planning authority for the area. In 1997 a developer applied for permission for the development of leisure and recreational facilities on part of the parkland. The respondents resolved to grant outline permission, subject to conditions. That decision was challenged by a local pressure group, whose application for judicial review was dismissed. Meanwhile, the respondents considered and approved the matters reserved by the outline planning permission.
A local resident (the appellant) applied for judicial review on grounds that included a challenge to the respondents’ decision to grant outline planning consent, but her application was dismissed. She was granted permission to appeal, but this was limited to the ground that the respondents were required, by Directive 85/57/EEC, to consider the need for an environmental assessment (EA) at the same time as they considered the reserved matters. It was common ground that the respondents had not required an EA at the reserved matters stage and that they had been advised that they were not legally required to do so
The respondents submitted that the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 fully implemented the terms of the directive. The appellant submitted that the planning process was a staged process, involving the grant of outline permission and the consideration of reserved matters, and that the directive required consideration of the need for an EA at both stages. Therefore, in so far as the 1988 Regulations did not require an EA at the reserved matters stage, there was a lacuna in the domestic legislation that the court should fill by giving effect to the directive. There was, accordingly, a proper question for reference to the European Court of Justice.
Articles 5, 6 and 7 of the directive set out the information that was to be contained in an EA. Article 8 of the directive provided that: “Information gathered pursuant to Articles 5, 6 and 7 must be taken into consideration in the development consent procedure.” Development consent was defined by Article 1(2) as: “The decision of the competent authority which entitles the developer to proceed with the project.” The domestic legislation meant that an EA could be required only when consideration was being given to the grant of planning permission, which, in this case, was at the outline permission stage. The central issue was whether the grant of outline-planning permission was “development consent” for the purposes of the directive, and, consequently, whether the directive had been properly implemented in domestic law.
Held: The appeal was dismissed.
The 1988 Regulations fully and properly implemented the directive in domestic law. The regulations both entitled and required the planning authority to consider the full environmental effects of the proposed development at the outline planning permission stage, and the United Kingdom procedures enabled them to do so. In such circumstances, there was no room for the directive to impose an EA at the time of consideration of reserved matters. While acknowledging that there might be circumstances in which a planning authority could make a mistake at first instance, or, as a result of a change of circumstances, the environmental impact of the development could turn out to be significantly greater than first envisaged, such matters could detract from the legal effect of the grant of planning permission, whether in full or in outline. While the fact that reserved matters had been left until a later point in time may give an opportunity to reconsider the environmental effects, that did not mean that a further EA was the necessary or appropriate solution. The planning authority would not be powerless. They could revoke or modify the permission, subject to the payment of compensation. It was not necessary to make a reference to the European Court. R v North Yorkshire County Council, ex parte Brown [1999] 1 PLR 116 considered.
Robert McCraken and James Pereira (instructed by Richard Buxton, of Cambridge) appeared for the appellant; Timothy Straker QC and James Strachan (instructed by the solicitor to Bromley London Borough Council) appeared for the respondents.
Sarah Addenbrooke, barrister
