The Noble Organisation, R (on the application of) v Thanet District Council & Ors

An unchallenged planning permission or environmental impact assessment screening decision must be treated as valid and cannot ordinarily be attacked indirectly in later judicial review proceedings. A planning authority may take such permissions and decisions into account as material considerations when assessing a later application concerning the same development. Where a precautionary EIA assessment is undertaken at the reserved matters stage, the authority may compare the reserved matters with the development authorised by the extant outline permission and assess the Schedule 3 criteria as a whole. The obligation under the EIA regime to remedy an earlier failure does not displace domestic procedural rules protecting finality and legal certainty.

The claimant challenged Thanet District Council’s decision of 24 May 2004 granting reserved matters approval for a leisure development at EuroKent Business Park. The claimant argued that the council had unlawfully decided that no environmental impact assessment was required, particularly because it relied on an earlier business park permission and an earlier screening decision concerning the leisure outline permission.

The court granted permission and treated the hearing as the substantive judicial review. The issues included the effect of unchallenged planning permissions, the proper approach to the EIA regime under the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, and the significance of the pending reference in R v London Borough of Bromley, ex parte Barker.

1. Claim dismissed. The claimant could not use the proceedings as an indirect or collateral challenge to the validity of the 1997 business park permission, the 2002 leisure outline permission, or the 2000 screening decision.
2. Those decisions had not been challenged in time and therefore had to be given all the effects in law of valid decisions. The council was entitled to treat the two outline permissions and the earlier screening decision as material considerations. The reserved matters application was in any event premised on the validity of the leisure outline permission.
3. The judgment in R (on the application of) Wells v Secretary of State for Transport, Local Government and the Regions did not require the council or the court to treat the earlier decisions as invalid. The obligation to remedy an unlawful failure under the EIA regime was subject to national procedural rules, including procedural autonomy, equivalence and effectiveness. Permitting indirect challenges of the kind advanced would undermine legal certainty.
4. Given the uncertainty created by the reference in Barker, it was understandable for the council, as a precaution, to consider the EIA question again at the reserved matters stage. That did not imply that the earlier screening decision had been defective.
5. The council’s reasons had to be read as a whole and not construed too strictly. The essential comparison was with the leisure outline permission, not the larger business park permission. The council also considered the reserved matters on their own terms and worked through the relevant criteria in Schedule 3 to the 1999 Regulations, including the characteristics and location of the development and the characteristics of its potential impact.
6. The council therefore acted lawfully and reasonably in concluding that no EIA was required for the reserved matters approval.