Barker, R (on the application of) v. London Borough of Bromley

The House of Lords held that the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (SI 1988/1199) failed fully and properly to implement Council Directive 85/337/EEC (the Environmental Impact Assessment Directive) insofar as they precluded consideration of the need for an environmental impact assessment at the stage when reserved matters are being approved following grant of outline planning permission. Article 1(2) of the Directive defines development consent and, where consent is given in more than one stage, the national classification must be made in a manner consistent with Community law. Articles 2(1) and 4(2) require that projects likely to have significant environmental effects must be subject to an assessment before development consent is given, and that assessment may be required at a later stage of a multi-stage consent procedure if significant effects only become apparent then. The council therefore misdirected itself in law in deciding that it had no power to require an EIA at the reserved matters stage.

This was an appeal against the Court of Appeal's dismissal of a challenge to the approval of reserved matters for a major redevelopment of the Crystal Palace site. The appellant, a local resident, sought judicial review of the council's decision to approve reserved matters after outline planning permission had previously been granted without an environmental impact assessment. The development was an urban development project falling within Annex II/Class 10(b) of Directive 85/337/EEC and Schedule 2 of the 1988 Regulations.

The principal issues were:

• whether approval of reserved matters is part or stage of "development consent" for the purposes of the Directive;
• whether an environmental impact assessment (EIA) may be required at the reserved matters stage where consent is multi-stage;
• whether the 1988 Regulations correctly transposed the Directive.

Procedural history: outline planning permission was applied for on 4 April 1997 and granted on 26 March 1998 subject to reserved matters. L & R applied for approval of reserved matters on 25 January 1999; the council approved them on 6 May 1999 without an EIA. The appellant sought judicial review; Jackson J gave partial relief on 3 March 2000 but the Court of Appeal dismissed the appeal on 23 November 2001 ([2001] EWCA Civ 1766). Leave to appeal to the House of Lords was granted (9 October 2002). The House referred preliminary questions to the Court of Justice of the European Communities, which ruled (Case C-290/03) that classification of development consent must be made pursuant to national law in a manner consistent with Community law and that Articles 2(1) and 4(2) require an EIA where a multi-stage consent reveals likely significant effects at a later stage.

The House of Lords, applying the Court of Justice rulings, concluded that the 1988 Regulations were defective because they did not allow for an EIA to be required at the reserved matters stage in any circumstances. It allowed the appeal and made declarations that the 1988 Regulations failed fully and properly to implement the Directive and that the council had misdirected itself in law in saying it could not require an EIA at the reserved matters stage. The court declined to quash the reserved matters decision because the planning permission had lapsed. The House also dealt with costs and ordered payments by the council and by the Secretary of State in specified proportions.

Appeal allowed. The 1988 Regulations failed to implement Directive 85/337/EEC fully and properly because they precluded consideration of the need for an environmental impact assessment at the reserved matters stage of a multi-stage development consent; the council was wrong to conclude it had no power to require an EIA at that stage. Declarations were made accordingly. The decision approving reserved matters was not quashed because the permission had lapsed.

High Court (Jackson J) – partial relief set aside [2000] Env LR 1; Court of Appeal dismissed the appeal [2001] EWCA Civ 1766; House of Lords granted leave to appeal and referred questions to the Court of Justice (Case C-290/03) which delivered ruling on 4 May 2006 (reported [2006] QB 764). The House of Lords allowed the appeal and made declarations ([2006] UKHL 52).