R (on the application of Barker) v Bromley London Borough Council
Lord Bingham of Cornhill, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswelland Lord Brown of Eaton-under-Heywood
Outline planning permission– Environmental impact assessment (EIA) not sought at outline stage — Whether possible to require EIA at reserved matters stage — Whether domestic legislation failing to implement Council Directive85/337/EEC — Appeal allowed
In 1997, the respondent council received an application for outline planning permission for a leisure and recreational development in Crystal Palace Park, near the appellant’s home. The development was of a type listed in Schedule 2 to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, such that the respondents were obliged, pursuant to regulation 4(2), to consider environmental information before granting planning permission if they considered it likely to have significant effects upon the environment. On the advice of planning consultants, the respondents took the view that no formal environmental impact assessment (EIA) was required at the outline permission stage, and granted permission, under which development was not to begin until reserved matters had been approved. At a subsequent meeting to approve the reserved matters, a number of councillors requested an EIA. Upon taking legal advice, the respondents were told that they could not as a matter of law require an EIA at the reserved matters stage. Approval of reserved matters did not, under domestic law, constitute a grant of “planning permission”, so that regulation 4(2) did not empower the respondents to require an EIA at that stage. Consequently, they approved the reserved matters without an EIA.
The appellant sought judicial review of that decision. The claim raised issues as to the compatibility of the 1988 Regulations with Council Directive 85/337/EEC. Under article 1(2) of the directive, “development consent” was defined as the decision of the competent authority that entitled the developer to proceed with the project. The claim was dismissed at first instance and by the Court of Appeal. The appellant’s appeal to the House of Lords was stayed pending a preliminary ruling by the European Court of Justice on the interpretation of the directive. The European Court held that the classification of a decision as a “development consent” within article 1(2) had to be determined under national law in a manner consistent with Community law, and that articles 2(1) and 4(2) required an EIA 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.
Outline planning permission– Environmental impact assessment (EIA) not sought at outline stage — Whether possible to require EIA at reserved matters stage — Whether domestic legislation failing to implement Council Directive85/337/EEC — Appeal allowed
In 1997, the respondent council received an application for outline planning permission for a leisure and recreational development in Crystal Palace Park, near the appellant’s home. The development was of a type listed in Schedule 2 to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, such that the respondents were obliged, pursuant to regulation 4(2), to consider environmental information before granting planning permission if they considered it likely to have significant effects upon the environment. On the advice of planning consultants, the respondents took the view that no formal environmental impact assessment (EIA) was required at the outline permission stage, and granted permission, under which development was not to begin until reserved matters had been approved. At a subsequent meeting to approve the reserved matters, a number of councillors requested an EIA. Upon taking legal advice, the respondents were told that they could not as a matter of law require an EIA at the reserved matters stage. Approval of reserved matters did not, under domestic law, constitute a grant of “planning permission”, so that regulation 4(2) did not empower the respondents to require an EIA at that stage. Consequently, they approved the reserved matters without an EIA.
The appellant sought judicial review of that decision. The claim raised issues as to the compatibility of the 1988 Regulations with Council Directive 85/337/EEC. Under article 1(2) of the directive, “development consent” was defined as the decision of the competent authority that entitled the developer to proceed with the project. The claim was dismissed at first instance and by the Court of Appeal. The appellant’s appeal to the House of Lords was stayed pending a preliminary ruling by the European Court of Justice on the interpretation of the directive. The European Court held that the classification of a decision as a “development consent” within article 1(2) had to be determined under national law in a manner consistent with Community law, and that articles 2(1) and 4(2) required an EIA 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.
Held: The appeal was allowed.
By precluding consideration of the need for an EIA at the reserved matters stage, the 1988 Regulations failed fully and properly to implement the directive. They overlooked the fact that the development consent could be a multi-stage process. In the instant case, the requirement in the outline permission for approval of reserved matters before development could begin meant that the consent that entitled the developer to proceed with the project was withheld until the approval of reserved matters. In such a case, the decision to grant outline permission and to approve reserved matters constituted, as a whole, a multi-stage development consent for the purposes of the directive: Commission of the European Communities v United Kingdom C-508/03 [2006] QB 764 applied.
Although a multi-stage process did not necessarily require consideration of the need for an EIA at every stage, the flaw in the 1988 Regulations was that they did not provide for an EIA at the reserved matters stage in any circumstances. The need for an EIA would depend upon the extent to which the environmental effects had been identified at the earlier stage. For a Schedule 2 development, the authority had to decide at the outset whether an EIA was needed, and, for many such developments, the authority would be able to treat the EIA provided at the outline stage as sufficient for the purpose of granting multi-stage consent for the project: Wells v Secretary of State for Transport, Local Government and the Regions C-201/02 [2004] ECR I-723 considered. However, in some cases the authority would be obliged to carry out a further EIA after outline permission had been granted, since it might not become apparent until a later stage that the project was likely to have significant effects upon the environment. In that event, account would have to be taken of all the aspects of the project that had not yet been assessed or that had been identified for the first time as requiring an assessment.
In those circumstances, the respondents had misdirected themselves in law in deciding that they had no power to require an EIA to be carried out in accordance with the directive at the reserved matters stage: observations of Sullivan J in R v Rochdale Metropolitan Borough Council, ex parte Tew [1999] 3 PLR 74 disapproved.
Robert McCracken QC 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 first secretary of state as intervener.
Sally Dobson, barrister
