Development — Planning permission — Environmental impact — Respondent planning authority resolving to grant outline planning permission — Respondents approving reserved matters — Respondents not requiring environmental impact assessment — National courts dismissing appellant’s challenge — House of Lords referring matter to European Court of Justice — Whether domestic legislation compatible with Community law — Preliminary ruling given
The appellant lived in the vicinity of Crystal Palace Park, which was owned by the respondent council. In 1997, the respondents, as local planning authority, resolved to grant outline permission to a developer for the development of leisure and recreational facilities on the parkland, subject to conditions that included a requirement of subsequent approval of reserved matters.
At a meeting to approve the reserved matters, a number of councillors requested an environmental impact assessment (EIA). Upon taking legal advice, the respondents were told that, as a matter of domestic law, an assessment could be carried out only at the initial outline planning permission stage. The respondents issued a notice of approval.
The appellant brought a claim for judicial review, challenging the approval and the legal advice upon which it had been based. Her application was dismissed at first instance and by the Court of Appeal. She appealed to the House of Lords, which had doubts as to the compatibility of the national rules, under which an EIA could be carried out only at the outline planning permission stage and not when the reserved matters were subsequently approved, with Council Directive 85/337.
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 EIA at both stages. In so far as the 1988 Regulations did not require an EIA at the reserved matters stage, the appellant argued that there was a lacuna in the domestic legislation that the court should fill by giving effect to the directive.
The proceedings were stayed and referred to the European Court of Justice for a preliminary ruling. The questions for the court were essentially whether: (i) classification of a decision as a “development consent” within Article 1(2) of Directive 85/337 depended exclusively upon national law; and (ii) an EIA might be required in certain circumstances under Articles 2(1) and 4(2) of the directive when reserved matters were being approved.
Held: A preliminary ruling was given.
(1) The classification of a decision as a “development consent” within Article 1(2) had to be carried out under national law in a manner that was consistent with Community law. Although the term was modelled on certain elements of national law, it was a Community concept that fell exclusively within Community law. Such a term, when used in a Community law provision, which did not refer expressly to the law of the member states for the purpose of determining its meaning and scope, should normally be given an autonomous and uniform interpretation taking into account the context of the provision and the purpose of the legislation: Ekro BV Vee-en Vleeschandel v Produktschap voor Vee en Vlees C-327/82 [1984] ECR 107, Luxembourg v Linster C-287/98 [2000] ECR I-6917 and R (on the application of Wells) v Secretary of State for Transport, Local Government and the Regions C-201/02 [2004] ECR I-723 applied.
(2) Articles 2(1) and 4(2) required an EIA to be carried out where a grant of consent comprised more than one stage, if it became apparent in the course of the second stage that the project was likely to have significant effects upon the environment due, inter alia, to its nature, size or location. It was only if those effects were not identifiable until the procedural stage implementing the decision that a comprehensive assessment should be carried out in the course of that procedure: Wells and Commission of the European Communities v United Kingdom C-508/03 applied.
Robert McCracken QC, Gregory Jones and James Pereira (instructed by Richard Buxton, of Cambridge) appeared for the appellant; Timothy Straker QC and James Strachan (instructed by Sharpe Pritchard) appeared for the respondents; David Elvin QC and James Maurici (instructed by the Treasury Solicitor) appeared for the UK government; G de Bergues and D Petrausch, acting as agents, appeared for the EC Commission.
Eileen O’Grady, barrister
