Prokopp, R (on the application of) v London Underground Ltd & Ors

A private individual with sufficient standing may obtain interim relief to preserve the position where a developer is about to take arguably unlawful and irreversible steps, even though enforcement responsibility rests with the local planning authority. The claim must then proceed principally against the authority. A decision not to enforce planning control may constitute development consent for the purposes of the environmental impact assessment regime because it entitles development to proceed. Earlier environmental information may amount to substantial compliance if the whole history and subsequent changes are considered. A local authority may lawfully decide that enforcement is unnecessary, but it must first consider all relevant environmental matters and have appropriate planning obligations in place.

The claimant sought to prevent London Underground Limited from demolishing part of Bishopsgate Goods Yard in connection with the East London Line Extension. The development had been undertaken in breach of a planning condition, with the result that the original planning permission had lapsed. The claimant challenged the decisions of Hackney and Tower Hamlets not to take enforcement action.

The central issues were whether a decision not to enforce was development consent requiring consideration of an environmental impact assessment, whether the earlier assessment substantially complied with that requirement, and whether the boroughs could lawfully decide not to enforce before appropriate conditions or planning obligations had been settled.

1. The claim succeeded to the extent that the boroughs’ decisions could not stand. They had decided not to take enforcement action before all appropriate conditions protecting the listed viaduct and reflecting the development’s environmental effects were in place. The decisions were quashed and required speedy reconsideration.
2. A private individual with sufficient standing may seek interim relief against a developer to prevent arguably unlawful, potentially irreversible works where the local planning authority is not acting. The developer should be treated as an interested party once the authority is joined. In a public law claim, however, a private individual cannot obtain a permanent injunction which effectively performs the authority’s enforcement function and removes the developer’s statutory appeal safeguards.
3. A decision not to take enforcement action is capable of being development consent under the Directive. It allows the development to proceed and cannot be used to avoid environmental assessment requirements. The Directive therefore required a purposive construction.
4. The earlier environmental impact assessment could be considered with the whole planning history. Substantial compliance was legally possible despite the lapse of the original permission, particularly where the relevant environmental information had already been supplied. The boroughs were entitled to conclude that no further assessment was required, but only after considering the later listing of the Braithwaite Viaduct, the feasibility of alternatives, and the need to protect the listed structure.
5. The purported 1997 planning permission was in substance a listed building consent and could not lawfully operate as planning permission. It did not authorise the demolition.
6. The decisions were quashed despite the court’s view that the project’s importance and the existing environmental information might justify non-enforcement. Relief was not withheld because the failure to settle the necessary Town and Country Planning Act 1990 section 106 obligations was material. The claimant recovered half the costs, with London Underground responsible initially for 90 per cent and each borough contributing 5 per cent. Leave to appeal was granted on an expedited basis.

This was a first-instance judicial review. No prior appellate history is stated. The judgment refers to the earlier Administrative Court decision in Hammerton v London Underground Ltd, [2002] EWHC 2307 (Admin), concerning the same development, but that decision is part of the same litigation and is not treated as an appellate stage of this judgment.