Two steps forward, one back

Environmental impact assessments (EIAs) may be required at the outline and reserved matters stages of a planning application after rulings in the European Court of Justice and the House of Lords. This is significant for developers and local authorities.

In the UK, the EIA directive has been transposed for domestic legislation into the Town and Country Planning (Environmental Impact Assessment) Regulations for England and Wales, 1999. Under the regulations, before a local authority grants permission for a development likely to affect the environment by virtue of its size, nature or location, it has to go through an EIA.

However, an EIA was only required when the council was considering “development consent” as government guidance on EIAs said “reserved matters cannot be subject to an EIA”. The status of reserved matters in the context of the directive has, however, recently been considered in the case of Diane Barker and Bromley council.

Bromley granted outline planning permission for a leisure complex at Crystal Palace Park, south London, without an EIA. Barker, a resident, challenged the decision to grant reserved matters approval, saying it should require an EIA. The case eventually reached the House of Lords, where the court referred to the European Court of Justice about interpreting the directive.

The European court ruled that the directive required an EIA to be carried out at reserved matters stage if the project was likely to have significant effects on the environment. Moreover, it defined development consent as a decision that “entitles the developer to proceed with development”. As outline consent cannot be implemented until approval of reserved matters, it follows that an EIA might be required at reserved matters stage if the development might have environmental effects not considered.

The European ruling has far-reaching implications. The correct implementation of the directive will require amendment to the UK’s secondary legislation and guidance, which will take time. Meanwhile, councils could face challenges by third parties if they wait for legislative reform to take place.

But the obligation to seek EIAs for reserved matters applications will add pressure to an overstretched planning system. The communities department has attempted to pre-empt this with an interim guidance letter that advises local authorities to screen reserved matters applications to determine if all the likely effects have been considered, irrespective of whether a full EIA was carried out at the outline stage.

This last point derives from the House of Lords decision in the Barker case. It was the view of the court that where outline planning permission was granted with reservation for subsequent approvals, EIA might be required at the reserved matters stage as well as at the outline stage.

The court said the council had wrongly decided it had no power at the reserved matters stage and the UK regulations failed to implement the directive

Essentially, the court said the local authority had wrongly decided it had no power at the reserved matters stage. Further, the court held the UK regulations “failed fully and properly to implement the directive”.

From a developer’s perspective, the position is still unclear. But developers and councils should prepare themselves for multi-stage EIAs at the reserved matters stage, particularly for large phased projects.

As a consequence, a robust screening of reserved matters by local authorities will become a reality. A further EIA may have to encompass all aspects of the development if changes have been made to the proposal after outline planning permission was granted, or just the aspects that were not assessed at the outline stage. It is conceivable that a planning obligation could constitute part of the development consent and will therefore be caught by this ruling.

Ultimately, developers may need to question whether the outline permission process will provide certainty and may prefer the full permission process instead, despite the cost and timing implications and the loss of an otherwise speculative development tool. In time the outline process will become redundant, given the detail required at the outset.

Each project will be judged on its merits but developers may wish to adopt a belt-and-braces approach to avoid future difficulties. It follows that outline permissions yet to receive reserved matters approvals should be reviewed in the light of the Barker case.

One wonders how the implications of this case sit alongside recommendations made by Kate Barker to ensure a competitive commercial market.

Brian Greenwood is head of the environment and planning group at solicitor Taylor Wessing. Sherryll L’oken is a professional research lawyer in the group