This page contains cases dealing with the following topics:EIA regulations
Reserved matters
The Barker case in the European Court and HL
Screening opinions
Waste strategy
EIA regulations
R (on the application of Richardson and another) v North Yorkshire County Council
[2003] EWCA Civ 1860
Facts: The appellants, who lived near to the site of a proposed quarrying scheme, were objectors to that scheme. The council resolved to grant planning permission for the quarrying operations in question after considering a report on the proposals by the councils director of environmental services. The minutes of the meeting did not mention the environmental report. The decision notice was subsequently issued. It referred to article 22(2) of the Town and Country Planning (General Development Procedure) Order 1995 and in accordance with the requirements of that article it stated that the council had taken into account the accompanying environmental information. The notice was subsequently entered onto the councils register but the entry did not include a statement of reasons for the decision.
The appellants challenge to the councils decision in the High Court failed. They appealed to the Court of Appeal. The principal grounds of appeal were that
(a) the council had been a breach of the requirement in regulation 3(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 to state in their decision that they had taken the environmental information into account, since their decision, for that purpose, was the resolution and not the subsequent decision notice,
(b) the decision notice itself failed to satisfy the regulation 3(2) requirements, and
(c) the council had failed to include in the register a statement of the main reasons and considerations on which the decision was based, in accordance with regulation 21(1) of the 1999 Regulations.
Decision: The Court of Appeal dismissed the appeal, holding as follows:
(a) The actual grant of planning permission constituted the decision for present purposes
(b) The statement contained in the decision notice was in the language required by regulation 3(2)
(c) The requirement under regulation 21(1) was for the purpose of informing the public retrospectively of the basis for the decision. It was not to dictate the course, or even the quality, of the decision making process. A failure to comply with that requirement did not compel the court to quash the decision.
Comment: This decision possibly shows something of a change in the current judicial attitude towards third party challenges to the grant of planning permission based upon allegations of failure to comply with the 1999 Regulations or their predecessors. (Such challenges are common and have been a cause of concern to the ODPM.) Until recently, a very strict approach has been taken. The Court of Appeal, once satisfied that there had been substantial compliance with regulation 3(2), clearly felt able to look at the underlying justification for regulation 21(1) and decided that failure to comply should not invalidate the decision.
Reserved matters
R (On the Application of The Noble Organisation) v Thanet District Council
[2005] EWCA Civ 782
The Claimant was not permitted to challenge the decision of a planning authority not to require an environmental impact assessment at the approval of reserved matters stage as it amounted to an impermissible collateral challenge to two previous outline planning permissions and the screening decision in respect of the second of them. Those decisions should have been challenged by way of judicial review but had not been done so.
The Court held:".. if either of the two outline planning permissions required and/or were not the subject of valid screening exercise, there was a clear domestic remedy, if exercised promptly, for quashing either of them and/or the screening opinion at the leisure park outline permission stage. The domestic requirement of promptness in the exercise of the remedy, as Miss Robinson observed, strikes a reasonable balance between the need to provide a remedy and, in this instance, the public interest in the effective administration of planning controls and legal certainty. Accordingly, in my view, this challenge to the reserved matters screening opinion was not deprived of effect by the Councils reliance on the formal validity of the outline permissions and the screening opinion in relation to the latter, since they had been challengeable by judicial review, if sought promptly - a sufficient remedy as a matter of community law."
Reserved matters approval - ECJ decision
R (on the application of Barker) v Bromley London Borough Council
Court of Justice of the European Communities (First Chamber)
4 May 2006
The European Court of Justice has given judgment in this case holding that the UK has not properly transposed Articles 2(1) and 4(2) of the Directive on Environmental Impact Assessments.
Under UK planning legislation the approval of reserved matters does not constitute a planning permission and so does not trigger the need for an environmental impact assessment (EIA) to be considered. Therefore an EIA could only be required at the outline planning application stage. The ECJ has held that where it becomes apparent at the reserved matters stage that the project is likely to have significant effects on the environment by virtue of its nature, size or location an EIA must be carried out at that stage. This decision effectively overturned the Court of Appeal’s decision on R (on the application of Barker) v Bromley Borough Council
Article: “Clearing the EIA hurdles” by Duncan Field, S J Berwin LLP – An explanation of the ECJ decision (Estates Gazette, 10 June 2006, p158).
R (on the application of Barker) v Bromley London Borough Council [2006] UKHL 52
The Barker case was subsequently heard by the House of Lords following the preliminary ruling by the ECJ that the Town and Country Planning (Assessment of Environmental Effects Regulations) 1988 had failed fully and properly to implement Council Directive 85/337.
Bromley Borough Council had granted outline planning permission for a development on the site of Crystal Palace Park but had not considered at that stage that an environmental impact assessment (EIA) needed to be carried out. At the time that the application for the approval of reserved matters fell to be considered, a number of councillors indicated that they wished an EIA to be carried out before the reserved matters were approved. However, the Council was advised that an EIA could not as a matter of law be required at the stage of approving reserved matters, with the result that the developer was not required to carry out an EIA.
The ECJ had ruled that Art 2(1) and Art 4(2) of the Directive were to be interpreted as requiring an EIA to be carried out if, in the case of a grant of consent comprising more than one stage, it became apparent, in the course of the second stage, that the project was likely to have significant effects on the environment by virtue, among other things, of its size, nature or location.
The 1988 Regulations overlooked the fact that the relevant development consent might be a multi-stage process. Therefore the flaw in the 1988 Regulations was that they did not provide for an EIA at the reserved matters stage in any circumstances.
Accordingly, the House of Lords granted the Appellant a declaration that the 1988 Regulations failed fully and properly to implement the Directive because it precluded any consideration of the need for an EIA at the stage when consideration was being given to an application for the approval of reserved matters.
Rural land projects
The Environmental Impact Assessment (Agriculture) (England) Regulations 2006 - Regulations implementing Council Directives on the assessment of certain pubic and private projects on the environment in relation to restructuring of rural land holdings, and projects for the use of uncultivated land and semi-natural areas for intensive agricultural purposes; and on the conservation of natural habitats and of wild flora and fauna. In force 1 October 2006.
Screening opinions - conditions
R (on the application of John Catt) v Brighton & Hove City Council
[2007] EWCA Civ 298
This decision of the Court of Appeal considers the issue of whether and to what extent mitigating effects or conditions may be taken into account when considering whether an environmental impact assessment is necessary. The court has made it clear, having regard to earlier decisions, that this question is to be determined after an examination of the “actual characteristics of any given project”. There is no rule of thumb as to whether conditions or remedial measures can be taken into account when deciding if an environmental impact statement is necessary.
Planning permission was granted for the continued use of a football stadium and the increased crowd capacity. It was contended that the decision to do so was unlawful because it was made without an environmental impact assessment.
The Court held that that in this case, when the Council formed the screening opinion it was not required to ignore the conditions proposed to limit the scope of the football stadium development or the conditions providing for ameliorative or remedial measures. Although the consequences of providing the additional capacity, and of other changes, could not be predicted with certainty, the Council had extensive knowledge and experience of the impact on the environment of existing football league and cup matches. On that basis and in light of the studies into future impact, there was no error in the Council having had regard to the continuing ameliorative measures proposed in assessing the likely impact of the additional capacity when reaching its screening opinion.
The Court of Appeal also confirmed that the decision in R (Burkett) v Hammersmith and Fulham [2002] 1 WLR 1593 applied to screening opinions and it was not necessary to challenge a screening opinion until the grant of planning permission.
Waste strategy
R (On the application of West London Waste Authority) v Mayor of London
[2007] EWHC 757 (Admin)
The West London Waste Authority sought judicial review of directions issued by the Mayor of London requiring that new incinerator contracts should include state of the art emissions-limiting equipment, combined heat and power generation, and pre-treatment of waste to remove recyclable elements before incineration.
The WLWA had proposed to put out to tender a contract for diversion of waste away from landfill because sending untreated biodegradable waste to landfill was the least desirable option in the waste disposal hierarchy and also resulted in financial penalties if landfill quotas were exceeded
A waste contractor was building an incinerator that WLWA considered would be a suitable solution. However, the Mayor did not consider that using it would be in accordance with his municipal waste management strategy.
The Mayor issued two directions under the Greater London Authority Act 1999 section 356 to the WLWA which required that new incinerator contracts should include "state of the art" emissions-limiting equipment, combined heat and power generation, and pre-treatment of waste to remove recyclable elements before incineration for the purposes of implementing his waste strategy. Under the GLA Act, directions could be issued, to waste disposal authorities requiring them to exercise their functions in the manner set out in those directions for the purposes of implementing the Mayor’s waste strategy
The Mayor submitted that he had power to give a direction in respect of a discrete area of the strategy by virtue of the words "may be exercised either generally or specially" in s356(4) of the 1999 Act.
The WLWA submitted that particular principles in the Mayor’s strategy could not be elevated above the others and made into requirements. A further submission made by WLWA was that the pre-treatment of waste before incineration, and the use of incinerators that minimised emissions and generated of heat and power were aspirations but that where the effect of requiring an incinerator which did those things could result in the continued use of landfill, this would ignore the waste hierarchy principle.
The Court held that under s.356 of the 1999 Act, the Mayor could only give a direction if he considered it necessary for the purposes of the implementation of his waste management strategy when read as a whole and the Mayor did not have the power to exclude an option that might accord with his strategy taken as a whole
The requirements in the Mayor’s directions ignored issues of practicability and cost and it would be difficult to find a tenderer who was willing to commit to providing such an incinerator. The likely consequence of such requirements would be to shut out any option but the continuation of the use of landfill. This would result in a situation which ignored the waste hierarchy principle and would ignore what may be the best environmental solution.
In the circumstances, the Court held that the Mayor had exceeded his powers under section 356 of the GLA Act 1999 in issuing the directions.
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