R (on the application of Candlish) v Hastings Borough Council
Phased development — Schedule 2 to Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 — Whether EIA required for first phase — Whether wider project to be taken into account when considering whether first phase falling within Schedule 2 — Claim dismissed
The defendants were the local planning authority in respect of a 67ha site that the interested party wished to develop for residential, office and retail purposes. The claimant was a local resident opposed to the development. The interested party submitted a detailed planning application in respect of the infrastructure of the site, including a spine road and water attenuation measures. The application stated that it was the first phase of the planned development and that the second phase would consist of a further application, supported by an environmental impact assessment (EIA). The Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 defined development requiring an EIA as “Schedule 2 development likely to have significant effects on the environment”. The defendants determined that the phase 1 application did not require an EIA because it did not fall within Schedule 2. They therefore granted planning permission subject to conditions.
The claimant brought a judicial review claim to challenge the grant of permission. She argued that the defendants should have required an EIA because, although the infrastructure works were not themselves likely to have significant effects upon the environment, they formed part of a wider development that would have such effects. She submitted that: (i) article 2(1) of Council Directive 85/337/EEC required an EIA to have been undertaken prior to development consent being given; (ii) since phase 1 had no meaningful existence on its own, but formed part of the overall project, splitting the project and the applications in two would circumvent the requirements of the directive; and (iii) the 1999 Regulations, which had to be construed so as to accord with the purpose of the directive, should be applied so as to extend the EIA regime to such a situation. The claimant contended that, on that basis, the development would clearly fall within Schedule 2.
Phased development — Schedule 2 to Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 — Whether EIA required for first phase — Whether wider project to be taken into account when considering whether first phase falling within Schedule 2 — Claim dismissed
The defendants were the local planning authority in respect of a 67ha site that the interested party wished to develop for residential, office and retail purposes. The claimant was a local resident opposed to the development. The interested party submitted a detailed planning application in respect of the infrastructure of the site, including a spine road and water attenuation measures. The application stated that it was the first phase of the planned development and that the second phase would consist of a further application, supported by an environmental impact assessment (EIA). The Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 defined development requiring an EIA as “Schedule 2 development likely to have significant effects on the environment”. The defendants determined that the phase 1 application did not require an EIA because it did not fall within Schedule 2. They therefore granted planning permission subject to conditions.
The claimant brought a judicial review claim to challenge the grant of permission. She argued that the defendants should have required an EIA because, although the infrastructure works were not themselves likely to have significant effects upon the environment, they formed part of a wider development that would have such effects. She submitted that: (i) article 2(1) of Council Directive 85/337/EEC required an EIA to have been undertaken prior to development consent being given; (ii) since phase 1 had no meaningful existence on its own, but formed part of the overall project, splitting the project and the applications in two would circumvent the requirements of the directive; and (iii) the 1999 Regulations, which had to be construed so as to accord with the purpose of the directive, should be applied so as to extend the EIA regime to such a situation. The claimant contended that, on that basis, the development would clearly fall within Schedule 2.
Held: The claim was dismissed.
The structure and the language of the 1999 Regulations were clear. Determining the necessity for an EIA was a two-stage process, and the question of whether a potential development was likely to have significant effects upon the environment, thus making it an EIA application, would arise only if that application had first been assessed as a Schedule 2 application: R (on the application of Goodman) v Lewisham London Borough Council [2003] EWCA Civ 140; [2003] 2 P&CR 18 applied. The relevant assessment was to be made by reference to the application for planning permission. There was no justification for treating the word “development”, as used in the 1999 Regulations, as though it meant “project” of some wider kind; difficulties could arise otherwise in any given case in assessing what a “project” might involve or what form it might take. If a development had no “independent existence”, that might be a strong factual pointer to there being some wider project, but it did not necessarily have any legal bearing upon the interpretation or application of the 1999 Regulations. The regulations were geared to the actual application for development consent, which was a legitimate approach for a member state to take: Bund Naturschutz in Bayern EV v Freistaat Bayern C-396/92 [1994] ECR I-3717 applied. The overriding purpose of the directive was, broadly, to subject to the EIA regime all projects with the potential for having significant environmental effects. However, it had refined that purpose by permitting the creation of criteria and thresholds. Member states were not required to examine cases falling below the thresholds, or outside the criteria, on a case-by-case basis: Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland C-72/95 [1997] All ER (EC) 134 and Berkeley v Secretary of State for the Environment, Transport and the Regions (No 3) [2001] EWCA Civ 1012; [2002] 1 P&CR 21 applied. Only if, on that approach, a development were found to be a Schedule 2 development, would considerations of cumulative effects then arise in answering the further question of whether it would be likely to have significant environmental effects: R v Swale Borough Council, ex parte Royal Society for the Protection of Birds [1991] 1 PLR 6 applied.
David Wolfe (instructed by Public Interest Lawyers) appeared for the claimant; Hereward Phillpot (instructed by the legal department of Hastings Borough Council) appeared for the defendants; Richard Harwood (instructed by Hammonds) appeared for the interested party.
Sally Dobson, barrister
