In 2002 a plan to regenerate Hastings and Bexhill was approved. The proposals were for a mixed development that would proceed in two phases. Phase 1 included the submission of a detailed planning application for infrastructure proposals, and associated surface water attenuation measures, for part of the site. Phase 2 would be the subsequent submission of an outline planning application for the wider project.
In 2004 the interested party submitted a planning application with regard to phase 1. A detailed ecology report relating to the application site was also produced. That report acknowledged that there would be a separate application with regard to phase 2 and that there would be an environmental impact assessment with regard to phase 2, which would also include phase 1. Planning permission was granted by the council on 15 October, subject to conditions.
The claimant applied for judicial review of the council’s decision to grant planning permission.
The essential issue concerned the interpretation of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. In particular, whether in circumstances where an application for planning permission is for a development which, taken on its own by reference to the application, would not require an assessment of the likelihood of significant effects on the environment, such an assessment is required if at the time that development is prospectively part of a wider development.
Reference
The court held that the regulations were geared towards the actual application for planning permissions. There was no justification for treating the word “development”, as used repeatedly in the regulations, as though it meant “project” of some wider kind. The regulations were clear that the relevant assessment is to be made by reference to the application for planning permission.
Accordingly, the decision of the council that phase 1 was not an EIA development, by reference to the planning application, was in accordance with the wording of the 1999 regulations; was in accordance with the wording of and purpose behind the directive (as amended); and was in accordance with authority of the European and of the English courts.
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
*Full case details
R (on the application of Carol Candlish) vs Hastings Borough Council & Hastings & Bexhill Renaissance Ltd (T/A Sea Space) (Interested Party), High Court, Admin Division, Mr Justice Davis [2005] EWCH 1539
Postscript
This decision provides useful clarification of the regulations. The court was no doubt aware that if it had regarded the planning application in relation to phase 1 as having had to be considered in light of the wider project then this could lead to practical difficulties in future cases. Councils would be faced with difficulties, and no doubt legal challenges, in assessing what if any “project” might be involved and what form that “project” took.
