R (Barker) v Bromley London Borough Council (Secretary of State for Communities and Local Government, intervener)

For environmental assessment under the Directive, a member state may identify one effective stage of its consent procedure at which the required information must be supplied. The reference in Article 5(1)(a) to a given stage does not require a fresh assessment at every later stage. The Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 fully implemented the Directive by requiring the planning authority to assess, at outline or full permission stage, whether a Schedule 1 or Schedule 2 project was likely to have significant environmental effects and, where appropriate, to require an environmental statement. Reserved matters cannot reopen the principle of development or create a further Directive assessment requirement, although proposals outside the outline permission cannot be approved as submitted.

Diane Barker challenged decisions concerning reserved matters for a proposed leisure development at Crystal Palace Park. Outline planning permission had already been granted, and the challenge to that permission was out of time. The Administrative Court, under Jackson J, set aside permission to seek judicial review so far as it concerned the outline permission and dismissed the remaining application. Dyson LJ later granted permission to appeal on the issue whether Directive 85/57/EEC required consideration of environmental assessment at the reserved-matters stage.

The central issue was whether the outline permission constituted “development consent” for the purposes of the Directive and whether the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 were defective because they did not require a further assessment when reserved matters were approved.

The appeal was dismissed. Latham LJ gave the principal reasoning. Brooke LJ agreed with it, and Burton J agreed and added observations.

1. The Directive required an autonomous interpretation of “development consent”. Article 5(1)(a) recognised that national consent procedures might be divided into stages. It did not require an environmental assessment at every stage. A member state could identify one effective stage at which the Directive’s information requirements were fulfilled.
2. The Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 fully implemented the Directive. For a Schedule 1 or Schedule 2 application, the authority had to determine at the permission stage whether the project was likely to have significant environmental effects. If so, it had to require an environmental statement containing the information required by Schedule 3. The information supplied had to be sufficient to permit an informed assessment; further information could be required and permission could be refused if it was not provided.
3. In domestic planning law, outline permission established the principle of the development and conferred a valuable right to develop subject to reserved matters. Reserved matters could not be used to frustrate that right. R v North Yorkshire CC ex p Brown [2000] 1 AC 397 was distinguishable because, in the mining-permission context there considered, the conditions stage was the only stage at which the environmental effects could be assessed. Ordinary outline planning procedure provided that opportunity at the outline-permission stage.
4. A later mistake, changed circumstances or a later appreciation that environmental effects were greater did not itself trigger a further assessment under the Directive. The authority could consider revocation or modification, subject to compensation. If reserved matters materially departed from the outline permission, they could not be approved as submitted.
5. Brooke LJ emphasised that “significant effects” was not confined to significant adverse effects. If the statutory screening exercise showed significant environmental effects, an assessment was required even if the authority considered those effects benign. The original screening decision could not be reviewed in these proceedings because the challenge to the outline permission was out of time, and the permission therefore had to be treated as valid under Smith v East Elloe RDC [1959] AC 736.

No reference to the European Court of Justice was necessary. The appeal was dismissed with costs. The Secretary of State was directed to pay the appellant’s costs attributable solely to its application, subject to detailed assessment, with no order as between the Secretary of State and Bromley.

1. Court of Appeal [2001] EWCA Civ 1766: dismissed the appeal and made costs orders.
2. Administrative Court: Jackson J set aside permission to seek judicial review so far as the challenge concerned the outline planning permission and dismissed the remaining application on 17 April 2000. Permission to appeal was refused.
3. Permission to appeal: Dyson LJ granted permission on 6 February 2001, limited principally to whether the Directive required consideration of environmental assessment when reserved matters were considered.