R (on the application of Prokopp) v London Underground Ltd and others

Lapsed planning permission — Unlawful commencement of development — Planning authorities declining to take enforcement action — Whether decision irrational — Whether decision amounting to “development consent” — Article 1(2) of Directive 85/337/EEC — Claim allowed The claimant sought to prevent the planned demolition of the Bishopsgate Goods Yard by the first defendant (LU) as part of the works to extend the East London Line. The High Court had previously established that the development had commenced without compliance with a condition attached to the relevant planning permission. Although that condition had become largely otiose, the failure to comply meant that no lawful commencement of development had arisen within the permitted five-year period; the planning permission therefore lapsed. The High Court had held that the second and third defendants (the two planning authorities whose areas contained the goods yards) could rationally bring enforcement action in respect of the unlawful development only if such action would thereby prevent the demolition of the goods yard, since there was no objection per se to the line extension. The judge found that enforcement action would not have that effect if certain listed building consents, which he found to be still in force, permitted LU to demolish the goods yard without requiring planning permission. The planning authorities found that those consents did not permit the demolition of the yard, but they none the less declined to take enforcement action, being of the view that it was not expedient to do so provided that LU a section 106 agreement. The claimant obtained an interim injunction to prevent LU from proceeding with the works, and, in the meantime, sought judicial review of the planning authorities’ decision. He contended, inter alia, that the decision not to take enforcement action was a “development consent” within the meaning of Article 1(2) of Directive 85/337/EEC, and that an environmental impact assessment (EIA) should therefore have been required. The defendants disputed whether the claimant, as a private individual, was entitled to seek an injunction against LU, since the power to enforce against a developer was given only to the planning authorities. Held: The claim was allowed. 1. If a developer was about to take arguably irrevocable and unlawful steps, but the planning authority took no action, the court had to be able to intervene. An individual was entitled to seek interim relief in such cases. The court would impose time limits upon the planning authority to ensure that they made their decisions within a reasonable time. What a private individual could not do, at least in a public law claim, was to obtain a permanent injunction, the effect of which would be to take enforcement action that was the responsibility of the planning authority. 2. Directive 85/337/EEC was to be given a purposive construction: R v North Yorkshire County Council, ex parte Brown [2001] 1 AC 397 applied. Its purpose was to ensure that decisions entitling developers to proceed with projects that might affect the environment were made on the basis of full information. A decision not to take enforcement action against a developer amounted to “development consent” within the meaning of Article 1(2), since it was a decision that “entitles the developer to proceed with the development”. The use of a decision not to take enforcement action, coupled with conditions imposed in a section 106 agreement, was not unlawful as a means of permitting a development to proceed, but it could not avoid the requirement to provide an EIA where the development was, as in the instant case, of a kind for which an assessment was required under the directive. Only if there had been substantial compliance with the requirements of the directive could permission be granted in the absence of an EIA, and it was not sufficient that the court was satisfied that the outcome would be the same in any event: Berkeley v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 603 applied. In considering whether there had been substantial compliance, it was proper to consider the entire history of the matter and to take account of the previous planning permission, for which a proper EIA had been provided. In all the circumstances, and taking into account the need to avoid further delay, it would be open to the planning authorities to decide that there had been substantial compliance and that no new EIA was needed; the directive therefore did not require them to take enforcement action. However, they should have given consideration to the necessary conditions for dealing with the recent listing of a viaduct forming part of the goods yard. Moreover, they had erred in making the decision not to take enforcement action before all appropriate conditions under section 106 were in place. Accordingly, the decisions could not stand, but would be remitted to the planning authorities for reconsideration. Richard Clayton QC, Richard Harwood and Christiaan Zwart (instructed by Richard Buxton Solicitors, of Cambridge) appeared for the claimant; Michael Barnes QC, Eian Caws and Julian Greenhill (instructed by the solicitor to London Transport) appeared for the first defendant; Peter Harrison (instructed by the solicitor to Hackney London Borough Council) appeared for the second defendants; Philip Petchey and James Pereira (instructed by the solicitor to Tower Hamlets London Borough Council) appeared for the third defendants. Sally Dobson, barrister