Development – Environmental impact assessment (EIA) – Judicial review – Applicant seeking permission to apply for judicial review of grant of planning permission alleging unacceptable risk to environment – Defendants resisting application – Whether claimant commencing proceedings promptly – Whether defendants fulfilling EIA obligations – Application dismissed
The defendant council granted outline planning permission to the first interested party to develop a site incorporating 464,685m2 of employment floorspace. The objective of the applicant charity was to protect and preserve natural invertebrate fauna and their conservation in the wild.
The applicant sought permission to apply for judicial review of the grant of outline planning permission. It contended that: (i) the permitted development could have a significant adverse effect on the important invertebrate interest on the site and on the habitat that sustained it; (ii) the environmental impact assessment (EIA) that the first interested party had submitted did not contain sufficient details and data relating to the invertebrate population and its habitat to enable them to consider the adverse effects of the proposed development, since the site had not been fully surveyed before the EIA was finalised; and (iii) this had led the defendants to grant outline permission for a development that failed to provide sufficient compensatory and ameliorative measures to counteract its effect on the invertebrate population.
The defendants and the first interested party contended, inter alia, that permission for judicial review should be refused because the applicant had failed to comply with CPR 54.5 in that, although the claim had been filed two days within the three-month time limit running from the date of the grant of outline permission, the proceedings were not filed promptly. The applicant contended that, in the light of the decision of the Court of Justice in Uniplex (UK) Ltd v NHS Business Services Authority C-406/08 [2010] PTSR 1377, it had an unqualified entitlement to a period of up to three months within which to file its claim. The second interested party was joined as a specialist body under a statutory duty to safeguard and conserve the environment.
Held: The application was dismissed.
(1) Although Uniplex related to regulations giving effect to the Procurement Directive 89/665/EEC, it applied general and core principles of Community law relating to directives. The requirement of certainty, and its application to limitation periods imposed on those seeking to enforce their rights in a national court, had general application to such enforcement proceedings. In those circumstances, the legislature had failed to transpose Council Directive 85/337/EEC (the Environment Directive) into domestic law in a way that avoided uncertain time limits arising from the requirement of promptness.
Following Uniplex, that requirement was not now enforceable in English courts. Applicants seeking permission to apply for judicial review no longer had to satisfy an independent test of “promptitude” under CPR 54.5 if their claim involved the enforcement of EU Directives. The requirement was simply that claims be brought within three months of the relevant decision.
In any event, taking account of the applicant’s reliance on the applicability of Uniplex, the accelerated ES process following to the defendants’ decision to accept Community Infrastructure Fund funding, the assistance provided to the first interested party, the limited prejudice shown to have resulted from the delay and the public importance of the present application, the court would exercise its discretion, if it were necessary, to conclude that these proceedings had been started promptly.
(2) The development was a multi-phase project, for which a staged EIA approach was intended, for a business park to be constructed over 10 years in at least four stages in accordance with a demand-led business plan on a highly significant environmental site. Thus, what was needed, and had been provided by the outline permission, was a staged EIA in which an interim or outline EIA was undertaken at the outline application stage and separate EIAs carried out for each subsequent detailed reserved matters application. That approach had been supported by conditions that prevented any stage from being started until an environmental statement (ES) had been prepared and the masterplan consequently revised, and the content of those documents approved as part of the decision-making process involved in that particular application. In an extreme case, the defendants could refuse permission and the development would not take place.
The defendants’ had not yet completed their EIA obligations because the ES produced prior to the decision had not provided sufficient details of the development, the invertebrate assemblage or the bee population. Moreover, their approach was further untenable because it did not take account of the way that the development had proceeded from its inception. The planning and preparations undertaken from 2006 had all been directed to a multi-stage EIA process. The application for and grant of outline planning permission provided for the continuation of that process and, following changes to the Town and Country Planning (Environmental Impact Assessment (Amendment)(England) Regulations 2008 (SI 2008/2093), the law for the first time permitted development substantially affecting the environment to proceed on that basis.
The applicant’s grounds for seeking judicial review did not arise in the light of the court’s conclusion that the wording of the outline planning permission required the development to be subject to a multi-stage EIA process. The court would therefore refuse permission to apply for judicial review, but it was on the express basis that each stage of the reserved matters approval process would be preceded by a new ES and that the defendants could not approve the matters reserved for approval by the outline permission conditions nor the detailed application unless they had first considered the environmental information arising from that application.
Robert McCracken QC and Rebecca Clutton (instructed by Richard Buxton Environmental and Public Law, of Cambridge) appeared for the applicant; Neil Cameron QC (instructed by the legal department of Medway Council) appeared for the defendants; Rupert Warren (instructed by DLA Piper UK LLP) appeared for the first interested party; the second interested party did not appear and was not represented.
Eileen O’Grady, barrister
