Secretary of State for the Environment allowing development allegedly harmful to character of Thames bank side – Whether decision vitiated by failure to call for environmental statement from developer in accordance with European directive as applied by regulations
By a decision letter dated August 15 1996 the Secretary of State for the Environment granted planning permission and listed building consent for the provision of new all-seated stands for Fulham Football Club, together with the building of 142 riverside flats with parking facilities, and a new riverside wall and walk. Led by the appellant, Lady Dido Berkeley (the objector), and campaigning under the name Thamesbank, a Fulham community group had opposed the development largely because the natural sloping foreshore near Putney Bridge would be replaced by an embankment, part of which would extend into the river itself. Proceeding under section 288 of the Town and Country Planning Act 1990 and section 62 of the Planning (Listed Buildings and Conservation Areas) Act 1990 the applicant contended, inter alia , that the decision was flawed in that neither the Secretary of State nor his inspector had considered the need, if any, for an environmental assessment as required by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (the regulations), which gave effect to EC directive 85/337. The judge rejected those contentions (see [1997] EGCS 49) and the objector appealed to the Court of Appeal.
Held The appeal was dismissed.
1. As provided by the regulations, planning applications for certain categories of development could not be granted without a prior environmental assessment. Projects of a kind listed in Schedule 2 required environmental assessment if likely to have significant effect on the environment by virtue of their nature, size or location. The list included “urban development projects”.
2. Since the complaint centred upon the failure of the first respondent to consider whether an assessment was required, it was not necessary to determine (as the trial judge had done) whether there was such a requirement on the facts. The court was satisfied that such failure did constitute a breach of regulation 4(2) and that if the point had been considered, there was a real prospect that the first respondent would have required the developer to furnish an environmental statement. However, given the thoroughness of the inquiry conducted by the inspector, there was in substance almost certainly a better compliance with the objects of the directive than if a statement had been supplied or required at the time of the planning application. For that reason the trial judge had correctly refused, in the exercise of the discretion conferred by section 288(5)(b) of the 1990 Act, to quash the decision. Nor could it be contended that the assumption of such a discretion was contrary to European law: see Commission of European Communities v Federal Republic of Germany (Case C-431/92) [1995] ECR 1-2189.
3. The breach of a European obligation did not of itself call for a departure from the normal practice of the court as to costs; however, as a mark of the court’s disapproval of the first respondent’s default, the objector should only bear two-thirds of the costs incurred by the Secretary of State in the proceedings at first instance.
Robert McCracken and Gregory Jones (instructed by Richard Buxton, of Cambridge) appeared for the appellant; David Elvin (instructed by the Treasury Solicitor) appeared for the first respondent, the Secretary of State for the Environment; William Hicks QC and Matthew Reed (instructed by Herbert Smith) appeared for the second respondent, Fulham Football Club.
