R (on the application of Candlish) v Hastings Borough Council

In the case of R (on the application of Candlish) v Hastings Borough Council the English Courts have been faced with a question of interpretation of UK national legislation, which seeks to implement the EIA Directive (Directive 85/337/EEC).

The issue before the Court concerned the interpretation of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 and whether an application for planning permission for a development which, if considered on its own would not require an assessment of significant effects on the environment to be made, would require such an assessment as was prospectively part of a wider development.

Consideration was therefore given to the scope of a “project” under the national legislation, with it being argued that as the only rationale for phase one (the subject of the application for planning permission) was to provide access for the phase two development, this was part of an overall project and therefore amounted to a Schedule 2 development under the Regulations.

The Court dismissed the application though, and held that the decision of Hastings Borough Council not to require an environmental impact assessment was in accordance with the wording of the 1999 Regulations, within which no justification could be found for treating the word ‘development’ as meaning a project of some wider kind.

The Court noted that, in contrast to the Directive, the word “project” does not feature in any significant way in the body of the 1999 Regulations, with the emphasis rather being on “development”.

While the Directive gives rise to the prospect that a “project” may be more than just a “development” for which development consent is sought, this is not the subject of any further definition or explanation in the Directive.

The Court therefore held that the 1999 Regulations were based on the actual application for development consent, which was a legitimate approach for a Member State to adopt.

The Court declined to exercise its discretion to refer the case to the European Court of Justice, stating that it had no real doubts as to the community law issues in the case.

This decision was further influenced by the fact that there would be an EIA undertaken for Phase 2, which would also include Phase 1, and the fact that for Phase 1 there had already been a relatively detailed assessment of the environmental and ecological issues, though not amounting to a formal EIA.

It remains to be seen whether this judgement is appealed.

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