In 1997 Thanet District Council granted outline planning permission for a business park in Ramsgate. The developer had not provided an environmental impact assessment with his planning application nor did the council seem to require one. There was no evidence to indicate what, if any, consideration the council gave to the matter.
In 2002 the council granted outline planning permission for a leisure development on part of the business park site. Again the council had not required an environmental impact assessment.
In 2004 the developer sought approval of certain reserved matters relating to the leisure development. The council made a screening decision that that no environmental impact assessment was required before the reserved matters could be approved and accordingly approval was given.
The appellant argued that the approval should be quashed on the basis of the lack of an environmental impact assessment.
The essential issues were whether the council’s conduct of the screening exercise in relation to the application for approval of reserved matters and the lack of requiring an environmental impact assessment were perverse.
The court held that it was a matter for the council’s planning judgement as to whether it had sufficient material before it at outline planning stage to decide whether a proposed development would be likely to have such significant effects on the environment as to require an environmental impact assessment. Such judgement could only be challenged on a Wednesbury basis, which means a challenge to the exercise of the Crown's statutory powers on the basis of unreasonableness. In the present case the court could not see any basis for a Wednesbury challenge of the council’s decision not to require an EIA at outline planning stage.
In addition the challenge to the decision not to require an environmental impact assessment at the approval of the reserved matters stage was in effect a collateral challenge to the earlier decisions not to require an environmental impact assessment. However, the opportunity to challenge these earlier decisions by way of judicial review had expired.
Full case details*
R (on the application of The Noble Organisation) vs Thanet District Council & (1) Rose Farm Estates Plc (2) The Rank Group Plc (Interested Parties)
28 June 2005, Court of Appeal, Civil Division, Lord Justice Auld, Lord Justice Mummery and Lord Justice Gage  EWCA Civ 782
Contact Fenwick Elliott on 020 7421 1986 or NGould@fenwickelliott.co.uk
This decision illustrates the importance of challenging public decisions within three months of the relevant decision so as not to lose the right to bring proceedings by way of judicial review.