In 1997 outline planning permission was granted for a business park on a 53-hectacre site. The permission covered mixed-use development for business and commerce, comprising classes A2, B1, B2 and B8, together with recreational use associated with a particular recreation ground. No environmental impact assessment (EIA) was carried out in relation to the proposed development.
In 2002 outline planning permission was granted for leisure development on 3.54 hectacres of the 53-hectacre site. The council had previously decided that the application for outline planning permission did not need to be accompanied by an EIA.
In 2004 an application for reserved matters approval was submitted by the developer. Again the council decided that no EIA was required and approved the reserved matters application.
The claimant challenged the council’s decision not to require an EIA.
The issue was whether or not the council had erred in law in its final decision not to require an EIA, by taking into account (i) the fact that in 1997 outline planning permission had originally been granted for a business park and (ii) the fact that no EIA had been considered necessary for the leisure outline planning permission in 2002.
Consideration (i) was said to be unlawful because no determination was made as to whether the business park development was itself likely to have significant environmental effects. Consideration (ii) was said to be unlawful because the decision not to require an EIA in relation to the leisure outline planning permission was itself unlawful.
Reference
The court held that the outline planning permissions granted in 1997 and 2002 had not been challenged at the time and that there was no application to challenge them out of time. Additionally there was no realistic prospect of time being extended so as to permit such a challenge now.
In these circumstances the council was entitled, when considering the application for reserved matters approval, to have regard to the earlier decisions. In particular, the two outline planning permissions were extant, lawful consents in respect of the same site and were properly taken into account as material considerations. Overall the council had done a reasonable job of going through the list of relevant criteria, as set out in Schedule 3 to the 1999 Regulations, and determining in the light of them that an EIA was not needed.
Accordingly the claim was dismissed.
*Full case details
R (on the application of THE NOBLE ORGANISATION) (Claimant) vs THANET DISTRICT COUNCIL (Defendant) & (1) ROSE FARM ESTATES (2) THE RANK GROUP (Interested Parties) 12 November 2004, Queens Bench Division, Judgment of J. Richards
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Postscript
The decision was based on the fact that administrative acts are valid unless struck down by the courts and will only be invalidated if challenged by the right person in the right proceedings and at the right time - in the context of this case, by a person with a sufficient interest bringing proceedings for judicial review within three months. In effect the claim was an indirect or collateral challenge to the validity of decisions made a number of years ago and therefore had to fail.
