Burkett, R (on the application of) v Hammersmith and Fulham

Environmental impact assessment for outline planning permission must provide enough information for the local planning authority to assess likely significant environmental effects before permission is granted. Details may be reserved where fixed parameters and available information permit that assessment.

The assessment is a dynamic process and may include supplementary information and public representations. A failure to state expressly that environmental information was considered may be substantially compliant where the statutory purpose was fulfilled and no prejudice resulted.

The claimant challenged outline planning permission for a large mixed-use development at Imperial Wharf. The issues concerned the adequacy of the environmental statement, reservation of design, appearance, landscaping and siting, traffic and contamination assessment, publicity for revised information, and the authority’s failure expressly to state that it had considered the environmental information.

The Court of Appeal had held the claim out of time. On 23 May 2002 the House of Lords allowed the claimant’s appeal and remitted the substantive issues to the High Court.

1. Application dismissed. The local planning authority had lawfully granted outline planning permission.
2. The authority was entitled to conclude that sufficient information about the development’s fixed features enabled assessment of likely significant environmental effects. Detailed design, external appearance and landscaping could be reserved where design parameters and planning controls enabled assessment before permission was granted. The limited reservation of Stage 3 siting was also lawful.
3. Environmental assessment is a dynamic process. The authority may supplement the developer’s statement with information obtained from the developer or elsewhere and must consider relevant public representations. The authority was entitled to undertake its own traffic assessment after considering the developer’s study.
4. The contamination material identified measures directed to dust and construction risks. The need for protective clothing for site workers did not establish an equivalent need for residents.
5. Revisions to the application did not materially alter its description or nature. They were sufficiently publicised, and there was no breach of the Regulations or unfairness.
6. The omission of the express statement required by regulation 4(2) concerned validity, but substantial compliance was possible. The environmental information had in fact been considered, the omission was administrative, and no prejudice was shown. Alternatively, relief would have been refused in the court’s discretion.
7. Permission to appeal was refused. The defendant was entitled to its costs, subject to the unresolved question of set-off. The interested party’s application for costs was refused.

• Court of Appeal: held that the application for permission to apply for judicial review was out of time.
• House of Lords: allowed the claimant’s appeal on 23 May 2002 and remitted the substantive issues to the High Court.
• High Court (Administrative Court): dismissed the substantive application and refused permission to appeal.