Brown, R (on the application of) v Stobart Air Ltd

For environmental impact assessment purposes, cumulative effects are determined as a question of fact. A functional or operational link between developments is unnecessary. Where a planning obligation prevents the permitted development from being built and occupied independently of associated works, the environmental effects of those works may form part of its cumulative effects.

A permission granted without prior consideration of the required environmental information is unlawful. The prospect of assessment at a later consent stage will not ordinarily justify withholding relief, because environmental effects must be assessed before the authority becomes committed to part of the overall development.

The claimant challenged planning permission for a freight storage and distribution centre at Carlisle Lake District Airport. The permission was linked to a planning obligation concerning runway improvements and passenger-terminal facilities. Although those airport works were central to the authority's assessment of the proposal's planning merits, their environmental effects had not been assessed in the environmental statement.

Owen J refused permission to seek judicial review in [2009] EWHC 2519 (Admin). He considered the environmental challenge arguable but concluded that relief would be refused as a matter of discretion. The Court of Appeal granted permission and determined the substantive application. The central questions were whether the airport works formed part of the freight development's cumulative environmental effects and, if so, whether the planning permission should be quashed.

1. Appeal allowed and planning permission quashed. The authority had failed to comply with regulation 3(2) of the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999. The airport works formed part of the cumulative environmental effects of the freight distribution centre, but their effects had not been addressed in the environmental statement or otherwise considered as required.

2. The existence of cumulative effects is a question of fact. No authority supported a requirement for an operational or functional link between developments. A cumulative effect may exist without such a link. Here, the authority regarded the airport works as sufficiently connected to the freight development to make the development as a whole policy compliant. The planning obligation also ensured that the freight centre could not lawfully be built and occupied in isolation from commencement of the airport works. It was irrational to treat that commitment as sufficient for development-plan purposes but insufficient for environmental assessment.

3. The decision in R (Davies) v Secretary of State for Communities and Local Government [2008] EWHC 2223 (Admin) was distinguishable. In that case, the separately assessed road was justified and would be built independently of the park-and-ride scheme. The inspector had also expressly determined that the latter was not an integral part of an overall scheme. Neither feature was present here.

4. The absence of final detail about the airport works did not prevent assessment. The available material had enabled consultants and the authority to evaluate their economic, transport, tourism and safety implications. Any minimum or likely development case could likewise have informed assessment of environmental effects.

5. Relief should not be withheld merely because the cumulative effects might be assessed at a later consent stage. Environmental assessment is intended to occur at the earliest possible stage, before a developer obtains a foothold and the authority becomes committed to part of the development. Only very exceptional circumstances could justify declining to quash on that basis. None existed. Nor was an undertaking not to commence development before screening an adequate substitute for quashing the unlawful public permission.

1. Court of Appeal (Civil Division): In [2010] EWCA Civ 523, the court allowed the appeal, determined the substantive judicial review application and quashed the planning permission.
2. High Court (Administrative Court): Owen J, in [2009] EWHC 2519 (Admin), held that the environmental challenge was arguable but refused permission to apply for judicial review because he considered that the court would withhold relief.