Legal

Two recent European Court rulings might be an opportunity for a second review of the environmental impact of proposed developments.

Under UK planning law an environmental impact assessment (EIA) could, until now at least, only be required at outline planning permission stage. The local planning authority could not require an EIA at a later point – for example, when reserved matter applications were considered. It is this principle that has been challenged by the European Court of Justice rulings in May.

Barker vs Bromley

The recent case of Barker vs Bromley LBC relates to Crystal Palace Park. Bromley council granted outline planning permission in 1998 for a leisure complex without an environmental impact assessment. In 1999, having been advised that they could not require an EIA at reserved matter stage (that is, when a detailed application is considered), the council granted reserved matters for the development, which included cinemas, leisure areas, exhibition area and restaurants.

This decision was challenged by a local resident but dismissed by the High Court and by the Court of Appeal on the basis that there was no room for “the directive to impose directly a requirement for an EIA at the time of consideration of reserved matters”. This decision was appealed to the House of Lords who referred the issue to the European Court.

The European Court of Justice held that articles 2(1) and 4(2) of the directive require that an EIA be carried out if it becomes apparent at the “reserved matter approval” stage that a project is likely to have a significant effect on the environment by virtue of its size and location.

An EIA before consent

The second case relates to the granting of outline permission by the London Borough of Hammersmith & Fulham for retail and leisure facilities at White City in 1996, where again an environmental assessment was not required. Reserved matters approvals were granted and work started on site. A complaint was made to the European Commission. The commission alleged that the development infringed the EIA directive.

The commission set a two-month time limit for compliance but was not satisfied with the response, so brought a number of complaints to the European Court of Justice. This court held that UK planning law fails to comply with the obligations under Articles 2(1) and 4(2) of the EIA directive (requiring EIA of certain projects “before consent is given”).

Developers with outline planning permissions should consider budgeting for an EIA for the whole project

UK implications

The legal implications of these cases will require changes to UK planning law to allow planning authorities to require an EIA at reserved matters stage. Planning consent will be treated as being finally given at the reserved matters stage. A developer may therefore be required to provide an updated environmental impact assessment at reserved matters stage.

The practical effects of these cases will depend on the wording of the legal changes. Until this is clear, developers need to exercise caution where outline consent has been granted for a scheme but not all reserved matters are approved.

It will normally have been anticipated that an EIA is required at outline planning application stage. The EIA should provide a full assessment of the environmental impacts of the project. An EIA must look at the maximum probable impacts and extent of development anticipated at outline stage, in order to cover all environmental impacts that might appear to arise at reserved matters stage.

Where the need for an EIA is not anticipated or the environmental statement accompanying the outline planning permission appears to be inadequate, there will be a power to require a further EIA at reserved matters stage. This will also be the case if there is a change in circumstances between the outline planning permission and the reserved matters – for example. if new guidance is published.

In the light of these rulings it is recommended that developers with outline planning permissions should consider timetabling and budgeting for an EIA for the whole project, especially where the outline permission is old or the impacts of the development have changed since the submission of the original application. At the very least, it may be wise to obtain a screening opinion as to the need for a further EIA from the council before submitting the reserved matters application.

The worst case scenario will be if the wording of legal changes results in objecting parties being able to open up further debate with the result that developers find themselves having to repeat the EIA process simply to get reserved matters approved.

The Department for Communities and Local Government published a consultation paper on 27 June seeking comments on the draft Town and Country Planning (Environmental Impact Assessment) (England) (Amendment) Regulations 2005, which deal with the issues raised in this article. To view them visit: www.building.co.uk/reports