Developers will have to take extra care with environmental assessments after the UK was found to be breaching an EU directive
Developers THAT have obtained outline planning permission, packed away their environmental statements and started development, may need to dust them off and reconsider them following a decision of the European Court of Justice on 4 May this year.
In the case of Barker vs London Borough of Bromley, which centred on a proposed multiscreen cinema in Crystal Palace park, the European court ruled that the council had been wrong not to require an environmental impact assessment despite concerns about environmental damage.
Until this ruling UK law stated that these assessments, which evaluate "likely significant effects" a scheme has on the environment, such as pollution and noise, are only required at the outline planning stage. The court has now found that the UK regulations governing this area of planning law had incorrectly transposed parts of a 1997 European directive.
The ruling means that developers will now have to be prepared to absorb the extra costs and delays associated with carrying out assessments at "reserved matters", the next stage in the planning process.
It is well known that the professional costs of carrying out an assessment can run into millions and preparing them can delay projects by up to a year.
This will be of particular concern for speculative developments where the detail of a project may not be known at outline planning stage because the tenants present particular requirements at a later stage.
However, the impact of this ruling may not be as damaging for developers as some have feared. An assessment will not always be required at the reserved matters stage. Under planning law a reserved matters submission cannot extend beyond the parameters of the development that was approved at the outline stage, when the effects of the project on the environment are first identified and assessed.
Nevertheless, there are two important factors to bear in mind.
An assessment may be required at the reserved matters stage even if one was not required at the outline permission stage, and an assessment required at the reserved matters stage must be comprehensive and must relate to all aspects of the project that have not yet been assessed or which require a fresh assessment.
An assessment should be carried out at the reserved matters stage when:
- Details proposed at the reserved matters stage indicate significant impacts not assessed at the outline stage
- Environmental effects were not all identifiable at the outline permission stage
- Environmental circumstances have changed
- Relevant government or local policy has changed, for example changes to waste management policy, flood risk areas or air emissions targets
- There has been development in the nearby area, for example new housing on a nearby site which will be affected by the proposed development.
In practice few developers should be adversely affected by these changes.
This case has taken many years to reach the European court and in the interim, best practice advice and legislation from central and local government, especially following the Planning and Compulsory Purchase Act 2004, has increasingly required planning applications to be supported by detailed information, studies and surveys. Bare outline applications are therefore becoming rare for large projects.
However, the ruling emphasises that great care is needed at the outline permission and reserved matters stage to ensure that all environmental effects have been considered properly. Failure to consider all environmental effects can result in challenges to approvals of development. This can lead to severe delay or possibly the halting of development altogether.
Tony Kitson is the head of the planning team and Clare Tyler is a planning solicitor at CMS Cameron McKenna