Local planning authority granting developer outline planning permission – No environmental assessment carried out before grant of permission – Applicant seeking judicial review of authority’s decision – Whether EC law imposing obligation upon authority to revoke outline permission and reconsider its decision – EC Treaty Articles 10 and 249 – Application refused
In March 1996 Hammersmith and Fulham London Borough Council (the first respondents) granted a developer (the second respondent) outline planning permission for an urban development project, consisting of a shopping centre of up to 600,000 sq ft, a multiplex cinema and car parking spaces. No environmental assessment was undertaken before the grant of outline permission. The applicant sought judicial review of the first respondents’ decision to grant permission and sought a prohibition against their anticipated decision to grant approval of reserved matters in respect of the development.
Articles 10 and 249 of the EC Treaty were central to the applicant’s case. Relying upon, inter alia, Frankovitch Case 6/90 & 9/90 [1993] 2 CMLR 76, the applicant submitted that there had been a breach of Community law by the first respondents in failing to obtain an environmental assessment before granting outline permission, contrary to Directive 85/337/EEC. Therefore the first respondents were obliged to remedy that breach and revoke, or at least consider revoking, the outline permission, which they had power to do under section 97 of the Town and Country Planning Act 1990. It was submitted that where there had been an administrative failure and an environmental assessment had not been carried out, an individual had a right to ask the member state to ensure that the decision-making process was properly carried out.
Held: The application was dismissed.
Articles 10 and 249 of the Treaty, upon which the applicant based its case, were to ensure that the member state correctly implemented a directive in its national law so that the objectives of the directive could be achieved. Directive 85/337 had been implemented into national law by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. There was no suggestion that it was not correctly transposed or implemented into national law. An individual cannot continue to assert a Community right in the national courts under the directive when it has been correctly implemented in domestic legislation. Therefore, the applicant’s case that the first respondents were under a duty to exercise their right to revoke the permission, by virtue of Articles 10 and 249 of the Treaty, was ill-founded. The recent Court of Appeal decision in Marks & Spencer plc v Commissioners for Customs and Excise (unreported 14 December 1999) was considered.
Robert McCracken (instructed by Richard Buxton, of Cambridge) appeared for the applicant; Anthony Dinkin QC and Michael Bedford (instructed by the solicitor for Hammersmith and Fulham London Borough Council) appeared for the first respondents; Duncan Ouseley QC, Timothy Straker QC and Sarah Moore (instructed by Berwin Leighton) appeared for the second respondent.