London Borough in court over lack of EIA

The London Borough of Bromley has found itself before the European Court of Justice in a case concerning the potential environmental impact of a huge leisure complex in Crystal Palace.

Preliminary Ruling in the Case of Diane Barker v London Borough of Bromley (Case C-290/03)

The European Court of Justice (ECJ) gave judgement on 4 May 2006 in case C-290/03, which arose following a reference for a preliminary ruling from the House of Lords in the case of Diane Barker v London Borough of Bromley.

The case between Ms Barker and the London Borough of Bromley (Bromley LBC) concerned the grant of planning permission by Bromley LBC to develop a leisure complex in Crystal Palace Park, London, without an environmental impact assessment (EIA) having been carried out, and therefore questions regarding the interpretation of Articles 1(2), 2(1) and 4(2) of the EIA Directive (Directive 85/337/EEC) arose.

Following an application having been made by London & Regional Properties Ltd in April 1997 for outline planning permission to develop a leisure complex in Crystal Palace Park, which was a project falling within Annex II to the EIA Directive, Bromley LBC concluded that an EIA was not required for the project, and granted outline planning permission towards the end of March 1998, reserving certain matters for subsequent approval.

Notice of approval was thereafter issued by Bromley LBC in May 1999. During the appeal hearing in the House of Lords, doubts arose as to the compatibility of the national provisions regarding the stage at which an EIA could be carried out, namely, at the outline planning permission stage and not when the reserved matters were subsequently approved. A referral was therefore made to the ECJ.

In answer to the first question put to the Court, whether the identification of “the decision of the competent authority or authorities which entitles the developer to proceed with the project” is exclusively a matter for the national court applying national law, the Court held that the classification of a decision as a ‘development consent’ must be carried out pursuant to national law in a manner consistent with Community law.

The other two questions referred to the Court concerned the interpretation of Articles 2(1) and 4(2) of the EIA Directive. In answer to these, the Court held that Articles 2(1) and 4(2) of the EIA Directive are to be interpreted as requiring an environmental impact assessment to be carried out if, “in the case of grant of consent comprising more than one stage, it becomes apparent, in the course of the second stage, that the project is likely to have significant effects on the environment by virtue inter alia of its nature, size or location”.

The full text of the judgement is available here.

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