Malster, R (on the application of) v Ipswich Borough Council & Anor

For an environmental impact assessment, a severe effect on a particular property does not necessarily amount to a significant effect on the environment. The decision-maker may consider the geographical extent of the impact and the size of the affected population, together with the project’s characteristics, location and potential impact. A large development may therefore proceed without an assessment where the impact is highly localised and affects relatively few people. A reference to the European Court of Justice is unnecessary where the Directive can properly be applied to the facts and no genuine interpretative doubt arises. In planning decisions, an express reference to Article 8 is not invariably required. It is sufficient that the planning process has substantively considered residents’ interests and carried out the necessary balancing exercise.

Rose Malster sought permission to appeal against Sullivan J’s refusal to quash planning permission granted by Ipswich Borough Council to Ipswich Town Football Club for redevelopment of the north stand at Portman Road stadium.

The proposed development would cast shadows over a small number of nearby properties. The applicant argued that an environmental impact assessment was required under Directive 85/337/EEC, as amended by Directive 97/11, and that the Council had failed to comply with Article 8 of the European Convention on Human Rights. She also sought a reference under Article 234 of the Treaty. The central questions were whether the project was likely to have significant effects on the environment and whether the planning process adequately addressed Article 8 rights.

1. Application refused and reference declined. The Court of Appeal, comprising Lord Justice Pill, Lord Justice Robert Walker and Mr Justice Laddie, unanimously refused permission to appeal and declined to refer questions to the European Court of Justice. The parties’ delay and prejudice arguments were not determined.
2. Under Articles 2 and 4 of Directive 85/337/EEC, as amended by Directive 97/11, the question whether an Annex II project is likely to have significant effects on the environment requires consideration of the Directive’s selection criteria. These include the project’s size and location, the geographical extent of the impact, the size of the affected population, and the impact’s probability, magnitude, complexity, duration, frequency and reversibility.
3. A severe effect on an individual property or a small number of properties does not necessarily satisfy the statutory threshold of a significant effect on the environment. The Council was entitled to regard the impact as limited in geographical extent and population affected, and could properly decide that no environmental impact assessment was required.
4. A reference under Article 234 was unnecessary. Although cases may arise in which the application of the Directive requires European guidance, the present facts did not give rise to an arguable interpretative doubt. The broad scope and purpose of the Directive did not alter that conclusion.
5. The Article 8 challenge also disclosed no arguable error. Although the Council’s documents did not expressly refer to Article 8, the planning process considered the effects on local residents and performed the necessary balancing exercise. An independent and discrete Article 8 remedy was not established on these facts.

• High Court, Administrative Court: Sullivan J refused the application to quash the planning permission and refused permission to appeal in a judgment dated 17 August 2001.
• Court of Appeal (Civil Division): refused permission to appeal, declined the proposed reference to the European Court of Justice, and made costs orders in favour of the first respondent and interested party.