R (on the application of The Noble Organisation Ltd) v Thanet District Council
Environmental impact assessment — Screening opinion — Reserved matters — Whether council entitled to take into account at reserved matters stage the fact that EIA had been considered unnecessary at the outline stage — Whether entitled to rely on validity of earlier decisions — Claim dismissed
One of the interested parties applied to the defendant council for outline planning permission for a leisure development. The application site comprised one plot on an area of land that had planning permission for use as a business park. The council produced a screening opinion, as required under article 4(2) of Directive 85/337/EEC, in which they concluded that no environmental impact assessment (EIA) was required for the leisure park. They maintained that the development would not be larger than, or different in nature from, the approved business park scheme, and would not therefore give rise to a significant additional environmental impact. They accordingly granted outline permission and subsequently approved an application in respect of reserved matters that included proposals for a multiplex cinema, three restaurants and a leisure centre. They produced a further screening opinion to the effect that no EIA would be required for those proposals.
The claimant sought judicial review of the council’s decision. It contended that the council had erred in law by taking into account, in their reasons for the screening opinion: (i) the business park permission; and (ii) the fact that no EIA had been required at the outline permission stage (a decision that, the claimant argued, had itself been unlawful). The claimant submitted that the council had wrongly used the business park permission as a “benchmark” given the fact that no prior determination of that development’s potential environmental effects had been undertaken. In response to the council’s argument that they were entitled to rely upon the validity of the earlier decisions, the claimant submitted that: (i) the council were under a duty to take all the steps in their power to nullify the effects of a breach of the directive, whereas their reliance upon defective decisions had the effect of perpetuating them; and (ii) the question of whether significant environmental effects were likely was a factual judgment, so that the council could not avoid making a lawful appraisal of the facts by relying upon the formal validity of an earlier decision.
Environmental impact assessment — Screening opinion — Reserved matters — Whether council entitled to take into account at reserved matters stage the fact that EIA had been considered unnecessary at the outline stage — Whether entitled to rely on validity of earlier decisions — Claim dismissed
One of the interested parties applied to the defendant council for outline planning permission for a leisure development. The application site comprised one plot on an area of land that had planning permission for use as a business park. The council produced a screening opinion, as required under article 4(2) of Directive 85/337/EEC, in which they concluded that no environmental impact assessment (EIA) was required for the leisure park. They maintained that the development would not be larger than, or different in nature from, the approved business park scheme, and would not therefore give rise to a significant additional environmental impact. They accordingly granted outline permission and subsequently approved an application in respect of reserved matters that included proposals for a multiplex cinema, three restaurants and a leisure centre. They produced a further screening opinion to the effect that no EIA would be required for those proposals.
The claimant sought judicial review of the council’s decision. It contended that the council had erred in law by taking into account, in their reasons for the screening opinion: (i) the business park permission; and (ii) the fact that no EIA had been required at the outline permission stage (a decision that, the claimant argued, had itself been unlawful). The claimant submitted that the council had wrongly used the business park permission as a “benchmark” given the fact that no prior determination of that development’s potential environmental effects had been undertaken. In response to the council’s argument that they were entitled to rely upon the validity of the earlier decisions, the claimant submitted that: (i) the council were under a duty to take all the steps in their power to nullify the effects of a breach of the directive, whereas their reliance upon defective decisions had the effect of perpetuating them; and (ii) the question of whether significant environmental effects were likely was a factual judgment, so that the council could not avoid making a lawful appraisal of the facts by relying upon the formal validity of an earlier decision.
Held: The claim was dismissed.
The council’s earlier decisions had not been challenged at the time and there was no realistic prospect of such a challenge now being permitted out of time. On the basis of well-established principles, those earlier decisions therefore had to be given all the effects in law of valid decisions: F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 and O’Reilly v Mackman [1983] 2 AC 237 applied. The claimant’s argument, based upon the defective nature of the original decision not to require an EIA at the outline stage, constituted a clear, if indirect, challenge to the leisure outline permission and the related screening opinion. Such a challenge was impermissible and there was nothing in the EIA regime that subverted the normal position. The requirement to nullify the consequences of a breach of an EC directive was not to be taken as calling into question the validity of earlier decisions that were no longer open to challenge under domestic law: R (on the application of Wells) v Secretary of State for Transport, Local Government and the Regions [2004] 1 CMLR 31 distinguished.
In those circumstances, the council had been entitled, when considering the reserved matters application, to have regard to the earlier decisions. Indeed, the reserved matters application was necessarily premised on the validity of the leisure outline permission pursuant to which it was made. In a case where, as here, the need for an EIA had been considered and rejected in a reasoned decision at the outline stage, and no challenge had been brought to that decision, it would be surprising if the law required further consideration to be given to the question of an EIA at the reserved matters stage. If such an exercise were to be undertaken, it did not have to be carried out without reference to the earlier decisions. These formed part of the legal and factual context within which the reserved matters fell to be assessed. The council had reached their decision on the reserved matters application partly as a comparative exercise and partly on an examination of the reserved matters considered by themselves. The essential comparison was with the leisure outline permission, not the business park permission. Neither by virtue of that comparison, nor in any other respect, had the council erred in reaching their decision that an EIA was not required at the reserved matters stage.
Richard Phillips QC and James Pereira (instructed by SJ Berwin) appeared for the claimant Alice Robinson (instructed by the solicitor to Thanet District Council) appeared for the defendants; Christopher Katkowski QC and David Blundell (instructed by Richards Butler) appeared for the interested parties, Rosefarm Estates plc and Rank Group plc.
Sally Dobson, barrister
