Larkfleet Ltd, R (on the application of) v South Kesteven District Council & Anor

Related works do not constitute a single project for environmental impact assessment merely because they interact or may produce cumulative environmental effects. Distinct projects may lawfully proceed at different times. The assessment of the first must address likely cumulative effects so far as reasonably possible, and each later project remains subject to any assessment it requires.

A planning authority must guard against artificial division of a single project. Where a later project remains uncertain, however, the environmental statement need provide only the information which can reasonably be compiled using current knowledge. Greater uncertainty permits less precision about cumulative effects.

Lincolnshire County Council obtained planning permission from South Kesteven District Council for a link road forming part of a proposed bypass south of Grantham. The road would also facilitate access to a separately proposed residential development. Larkfleet Ltd, a rival developer, sought judicial review of the permission.

Lang J dismissed the claim in [2014] EWHC 3760 (Admin). Larkfleet appealed, contending that the road and residential development formed a single project under the Environmental Impact Assessment Directive 2011/92/EU and the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. Alternatively, it argued that the environmental statement inadequately assessed their cumulative effects.

The central issues were whether the link road was properly treated as a distinct project and whether the available information about likely cumulative effects was adequate.

1. The appeal was dismissed. The link road was a project distinct from the proposed residential development. Its principal function was to complete a bypass serving an independent public need. Permission for the residential development depended upon the road, but the need and planning justification for the road did not depend upon that development.

2. The prohibition against artificial division of projects prevents a developer from splitting what is substantively one project so that its component parts escape environmental assessment. It does not mean that works producing cumulative effects must invariably be treated as one project. The scheme of the Environmental Impact Assessment Directive 2011/92/EU itself contemplates distinct projects whose cumulative effects require assessment.

3. Distinct but linked projects may be brought forward at different times. Environmental protection is secured by assessing the cumulative effects of the projects, so far as reasonably possible, when permission for the first is sought, followed by the environmental assessment required for each later project. Strategic environmental assessment of the relevant development plans provides further protection.

4. The functional, design, financial and administrative links relied upon did not convert the road and housing proposals into one project. The roundabout, access stub and route around the residential site reflected sensible coordination between distinct planning proposals. Prospective developer contributions were contingent funding arrangements rather than matters determining the planning identity or merits of the road project.

5. There was a strong argument that identifying a project is an evaluative judgment for the planning authority, subject to review on rationality grounds. It was unnecessary finally to decide that question because both the authority's assessment and the court's own evaluation produced the same result.

6. The environmental statement adequately assessed likely cumulative effects. Under regulation 2(1) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2011, the applicant was required to provide information which could reasonably be compiled using current knowledge. Uncertainty concerning the location and dimensions of the later residential development necessarily limited the precision available. The statement nevertheless used increased traffic assumptions and assessed the likely cumulative effects by subject matter. Nothing further of practical value could reasonably have been supplied.

Sales LJ gave the judgment of the court. Tomlinson and Moore-Bick LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2015] EWCA Civ 887. The court upheld the treatment of the link road as a distinct project and the finding that cumulative effects had been adequately assessed.
2. High Court, Planning Court: Lang J dismissed the claim for judicial review in [2014] EWHC 3760 (Admin).