Buglife, R (on the application of) v Natural England

For a multi-stage development likely to affect the environment, an environmental impact assessment must provide sufficient information at the earliest relevant stage. Where later effects cannot reasonably be identified at outline stage, the process may proceed by staged environmental statements and assessments at subsequent reserved-matters stages. Conditions may defer matters of detail and implementation, but cannot defer significant environmental effects or mitigation measures which require public consultation. Following Uniplex (UK) Limited v NHS Business Services Authority [2010] EUECJ c-406/08, a requirement that judicial review proceedings be brought promptly is not enforceable where it creates an uncertain limitation period for enforcing rights derived from a directive.

Buglife sought permission to challenge Medway Council’s grant of outline planning permission to National Grid Property Holdings Limited for a large business park on an ecologically significant brownfield site. The challenge concerned the adequacy and timing of the environmental information relating principally to invertebrates and their habitat, the use of conditions to defer surveys and mitigation, publicity and consultation, and delay in commencing judicial review proceedings.

The development was intended to proceed in several phases over approximately ten years. The central issue was whether the planning permission lawfully established a multi-stage environmental impact assessment process, with further environmental statements and information required before each detailed phase.

1. Delay. The requirement under CPR 54.5 that a claim be brought promptly was incompatible with the certainty required of limitation periods governing enforcement of rights arising under directives. Applying Uniplex (UK) Limited v NHS Business Services Authority [2010] EUECJ c-406/08, that requirement was not enforceable in these proceedings. In any event, the claim had been commenced promptly in the circumstances.
2. Multi-stage EIA. Regulation 3 of the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 applied to the outline application and to any subsequent consent. The planning authority could grant permission only after taking the environmental information into consideration.
3. The principles explained in R (Barker) v Bromley London Borough Council [2007] 1 AC 470, following R (Barker) v Bromley London Borough Council and Commission of the European Communities v UK [2006] QB 764 and The Queen on the application of Delena Wells v Secretary of State for Transport, Local Government and the Regions Case C-201/02, permitted an EIA at a later stage where environmental effects had not been identified or assessed at the earlier stage. The outline stage required sufficient information to assess the project’s likely significant effects, but later assessments were required where later effects were not then identifiable.
4. Following R v Rochdale M.B.C. [2000] Env. L.R. 1, an environmental statement for an outline development had to contain sufficient information about the development, including its design, size or scale, to enable its likely significant environmental effects to be assessed. Conditions could not defer matters sufficiently significant to affect the environment or mitigation measures requiring public consultation. They could defer matters of detail and implementation which were unlikely to have such an effect.
5. The permission and its conditions were properly understood as requiring a staged EIA process. Each reserved-matters application had to be preceded by a fresh environmental statement containing current survey results, proposed mitigation supported by an ecology masterplan, and details of the particular development phase. Medway had to consider that environmental information before approving the reserved matters and the detailed application.
6. The court declined to determine the proposed wider test for reviewing the sufficiency of an environmental statement, including whether objective proportionality and legal-certainty standards had displaced the Wednesbury approach. Those issues were left for an appropriate case.
7. Permission to apply for judicial review was refused because the grounds assumed that there would be no further EIA process. The refusal was expressly based on the requirement for fresh environmental statements and consideration of environmental information at each reserved-matters stage.