UK planning system contains EIA loophole

The grey area between outline and full planning permission in the UK could mean that required environmental impact assessments never take place, according to the House of Lords.

Planning and Environmental Impact Assessment (EIA)

R v London Borough of Bromley ex parte Barker

The House of Lords has ruled that UK Regulations do not properly implement the 1985 EIA Directive in that they do not allow for assessments to be carried out at the reserved matters stage, after outline planning permission has already been granted. The ruling follows ECJ caselaw on the concept of ‘development consent’ and an express challenge by the Commission to the UK planning regulations.

In 2006 the ECJ held that ‘development consent’ in terms of the Directive was not a concept exclusively for the national courts to determine in line with national law, and that where the granting of consent involves more than one stage the Directive should be interpreted as requiring assessment at the second stage if it becomes clear that the project is likely to have significant environmental effects.

On the same day, judgement was issued in Commission v UK, where it was held that because development could not begin until reserved matters had been approved, outline planning permission and reserved matters approval should be considered together as the ‘development consent’ for the purposes of the Directive.

The Barker case concerned the proposed development of leisure and recreational facilities at Crystal Palace Park. The developers applied for outline planning permission, and as a urban development project, environmental assessment was at the discretion of the planning authority.

The planning authority followed the advice given to them by their consultants that no significant environmental effects were likely, therefore did not require an environmental assessment to be carried out. Outline planning permission was granted in 1998 and several reserved matters were left for later approval by the authority before development could begin. A year later, the developers submitted their application for approval of the reserved matters, which included proposals for an 18-screen cinema and car park.

This caused much controversy and ultimately resulted in the several councillors calling for a formal environmental assessment. The councillors were advised that this was not possible under the UK Regulations, since the environmental assessment could only be carried out at the outline application stage.

This decision was challenged by a local resident on the grounds that planning procedures were a multi-stage process and should therefore allow environmental assessments at the reserved matters stage. These arguments were rejected by the Court of Appeal in 2001, on the basis that the Directive required assessments to be carried out prior to ‘development consent’ being granted, and that under UK law outline planning permission was the development consent for the purposes of the Directive.

The Court pointed out that the planning authority could revoke the permission if a mistake had been made. Two years later, the House of Lords referred a number of questions to the ECJ for guidance.

In applying the principles of the ECJ caselaw to the facts of the Barker case, the House of Lords held that the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 failed to allow for the relevant development consent being a multi-stage process.

The conditions in relation to the reserved matters in the case made clear that the project could not begin until their approval, therefore creating the conditions for the process to be regarded as multi-stage consent.

The House of Lords was clear that there was no need for consideration to be given to assessment at each stage of the process, and that where a project falls into a discretionary class the planning authority must consider whether there is a need for the assessment at the earliest possible stage.

It was also made clear that there should be sufficient information accompanying an application for outline planning permission for the authority to make such a determination. Conditions should be designed to ensure that a project remained within the scope of any environmental assessment made at the outline stage.

The House of Lords granted a declaration that the planning authority had misdirected itself by deciding it lacked the power to require assessment to be carried out at the reserved matters stage.

The Government is left in a position whereby it must amend the planning regulations to allow environmental assessments to be carried out at this stage, although the House of Lords did indicate that they did not expect this to become common practice.

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