A High Court decision to quash planning consent after a local authority failed to require environmental assessment for a road project highlights moves to bring the UK in line with European environmental law.
In the case of R v Edmunsbury Borough Council, ex parte Walton (QB, 13 April 1999) consent for a new road, which fell within Schedule 2 to the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 Number 11/99, was withdrawn after a local resident argued an environmental assessment should have been obtained by the local authority.
The court’s decision reflects the purposeful approach to environmental assessment recommended by the 1985 European Council Directive on the assessment of environmental effects; an approach commentators claim shows the judiciary is increasingly keen to fully implement European environmental legislation.
David Brock, a planning and environmental law partner at Herbert Smith, believes lawyers should be gearing up for more challenges to planning consents on environmental grounds.
“This is the fourth or fifth case in the last couple of years which has turned on environmental assessment. What it all adds up to is that the environment is becoming the Achilles’ heel of planning applications. Developers should now take the possibility of such challenges very seriously indeed.”
In February, in the case of R v North Yorkshire County Council, ex parte Brown (The Wensleydale Case), the House of Lords withdrew planning consent for continuance of quarrying permission after the local council failed to consider, as a preliminary matter, whether to undertake an environmental assessment.
In another case, Berkeley v Secretary of State for the Environment[8] 3 PLR 39, it was alleged that the Secretary of State failed to consider the need for an environmental statement. It was dismissed in the High Court but is now set for an appeal to the House of Lords.
“What these cases show is that planning authorities must try to look at things in accordance with European law,” said Dan Hemming, a planning specialist at Birmingham law firm Wragge & Co. “What is certain is that the courts are increasingly willing to do so and that the government is keen to ensure environmental studies are undertaken where necessary.”
In March of this year the 1997 EC Directive on environmental assessments was applied in the UK. The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 include provisions to lower thresholds for compulsory environmental assessment, and to cut the local authority’s discretion in some other cases.
In favour of applicants the regulations introduce a new right to ask for a ruling at the beginning of the planning process on whether environmental assessment is required. Applicants are also entitled to request guidance on the contents of any assessment. However, there is concern that any such guidance would be inevitably incomplete, and may not serve as a sufficient defence should a legal challenge be mounted.
The case of R v Somerset County Council, ex parte Dixon saw a challenge to planning consent for quarry rights on the basis that the environmental assessment was inadequate. While the challenge failed, lawyers see the content of environmental assessments coming under increased attack. “The question will be what will happen if guidance is given but is wrong,” said David Brock. ” My advise to clients would be to bullet-proof applications by putting all relevant material before the planning authority. What recent cases emphasise is that it is best to err on the side of caution.”
Meanwhile environmental campaigners and pressure groups warmly welcomed the latest decision. A spokesman for the Council for the Protection of Rural England described the Edmunsbury case as, “a significant advance in the campaign for better environmental assessment.”
PLS News 15/4/99
