Regina v. London Borough of Bromley (Respondents) ex parte Barker (FC) (Appellant)

Where planning approval comprises several stages, the domestic classification of each decision must conform to the autonomous Community meaning of “development consent”. Outline permission and approval of reserved matters together constitute development consent when the developer cannot proceed until both have been obtained.

An environmental impact assessment should normally occur at the earliest possible stage. An adequate outline-stage assessment may suffice throughout the process. However, an assessment must remain available at a later stage if significant environmental effects were overlooked, could not previously be identified or first become apparent when detailed matters are considered. Domestic regulations which preclude any assessment at that later stage fail properly to implement Council Directive 85/337/EEC.

The appellant lived near the proposed redevelopment of the Crystal Palace site. The council granted outline planning permission without requiring an environmental impact assessment. When a detailed multiplex cinema and car-parking proposal was submitted for approval of reserved matters, the council was advised that it had no legal power to require an assessment at that stage.

The appellant sought judicial review. Jackson J dismissed the material part of the application: [2000] Env LR 1. The Court of Appeal dismissed her appeal: [2001] EWCA Civ 1766; [2002] Env LR 631. The House referred questions concerning Council Directive 85/337/EEC to the Court of Justice.

The central issues were whether outline permission and reserved-matters approval together constituted a multi-stage development consent, whether an assessment could be required at the later stage, and whether the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 correctly transposed the Directive.

1. Appeal allowed unanimously. Lord Hope of Craighead delivered the leading opinion. Lord Bingham, Baroness Hale, Lord Carswell and Lord Brown expressly agreed with his reasons and proposed orders.

2. Classification of development consent. Per Lord Hope, “development consent” under article 1(2) of Council Directive 85/337/EEC was an autonomous Community concept. National planning decisions had to be classified consistently with that concept. The preliminary ruling in this litigation and Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland [2006] QB 764 established that outline permission and reserved-matters approval formed one multi-stage development consent where development could not begin until the reserved matters had been approved. The relevant condition in this permission had that effect.

3. Timing of assessment. Per Lord Hope, assessment should take place at the earliest possible stage. An applicant for outline permission should provide enough information to determine whether significant environmental effects were likely. Where the outline-stage assessment covered all potential effects and conditions kept the project within its assessed scope, it would normally suffice for the entire multi-stage process. The approach in R v Rochdale Metropolitan Borough Council, Ex p Milne (2001) 81 P & CR 365 was approved in that connection.

   A later assessment was nevertheless mandatory if significant environmental effects had been overlooked, were not identifiable earlier or first emerged from the detailed proposal. It had to address every relevant aspect not previously assessed. The contrary observation in R v Rochdale Metropolitan Borough Council, Ex p Tew [1999] 3 PLR 74, suggesting that the authority would be powerless at the reserved-matters stage, was unsound.

4. Transposition, declarations and orders. Per Lord Hope, regulations 2(1) and 4(2) of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 precluded consideration of an assessment at the reserved-matters stage in every case. They therefore failed fully and properly to implement the Directive. The council also misdirected itself by deciding that it had no power to require an assessment at that stage.

   The House declined to declare the reserved-matters approval itself unlawful because the permission had lapsed and there was insufficient information to decide whether an assessment had in fact been required. The Court of Appeal's order was set aside and the two declarations were granted. The appellant received her costs. Costs in the House and Court of Justice were divided equally between the council and the Secretary of State.

1. House of Lords: In Regina v London Borough of Bromley, Ex parte Barker [2006] UKHL 52, the House unanimously allowed the appeal, set aside the Court of Appeal's order and granted declarations concerning defective transposition and the council's legal misdirection.

2. Court of Justice: On the House's preliminary reference, the court ruled that development consent must be classified consistently with Community law and that a later assessment is required where significant effects become apparent during the second stage of a multi-stage consent: Case C-290/03, [2006] QB 764.

3. Court of Appeal: The court dismissed the appellant's appeal: [2001] EWCA Civ 1766; [2002] Env LR 631. The House set that order aside.

4. High Court: Jackson J set aside permission for judicial review insofar as it concerned the outline permission and dismissed the remainder of the application: [2000] Env LR 1.