As a consequence of two recent judgments handed down by the European Court of Justice (ECJ), and contrary to existing UK legislation and guidance on the subject, environmental impact assessments (EIAs) must now be carried out at the reserved matters stage if it becomes apparent then that the development project is likely to have significant effects on the environment by virtue of its nature, size or location.

Background

Article 2 of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (the EIA Directive) requires member states to adopt all measures necessary to ensure that before ‘development consent’ is given for a project that is likely to have a significant effect on the environment, an EIA must first be carried out.

‘Development consent’ is defined in the EIA Directive as:

… the decision of the competent authority or authorities which entitles the developer to proceed with the project.

It has not been an easy task translating this definition into domestic planning law, and the meaning of the term insofar as it relates to EIAs has evolved on a case-by-case basis.

In most instances a reserved matters approval is not regarded as a planning permission, nor is it recognised to be ‘development consent’. Circulars published both north and south of the border in 1999 (England & Wales Circular 02/1999; Scotland Circular 15/1999) appeared to confirm this stance by clearly stating that ‘reserved matters cannot be subject to EIA’.

Recent case law

In R (on the application of Barker) v London Borough of Bromley [2006] Mrs Barker challenged the decision of the London Borough of Bromley to grant reserved matters approval in relation to a leisure development at Crystal Palace without requiring an EIA. Both the High Court and the Court of Appeal agreed with the Borough and Mrs Barker appealed to the House of Lords, who in turn referred the matter to the ECJ.

The ECJ was asked to determine whether UK law can exclude the requirement for an EIA at a subsequent stage of the planning process, for example the reserved matters stage, if it requires the consideration of an EIA at a preliminary stage, for example at the outline planning permission stage.

In deciding that the UK was in breach of the EIA Directive, the ECJ stated that a development consent can involve one or more stages. If it becomes clear during the second stage of granting consent that the project is likely to have significant effects on the environment, an EIA will be required at that stage. It is therefore possible that a planning authority will require an EIA even after the grant of outline permission, when the reserved matters are subsequently approved.

In December 2006 the House of Lords reached its final decision and allowed Mrs Barker’s appeal (despite the fact that the outline planning permission in question had expired in March 2003 without being implemented; the ECJ agreed to rule on the case because at the time the referral was made the permission was still live).

In the second case, Commission of the European Communities v UK [2005], infraction proceedings were brought against the UK by the Commission, which sought a declaration that the Boroughs of Bromley and Hammersmith & Fulham were in breach of the EIA Directive by granting reserved matters approvals for the development at White City without carrying out an EIA.

The ECJ very much followed the reasoning applied in Barker and agreed that the UK was in breach of the EIA Directive in providing that an EIA can only be carried out at the planning permission stage. The Court stated that outline planning permission and the approval of reserved matters must be viewed as a ‘multi-stage development consent’.

Interim guidance

Whilst the judgments both concern English cases, given the similarities in EIA regimes north and south of the border, they are relevant to EIA procedures in Scotland as well as England and Wales.

The UK legislatures are now likely to amend domestic EIA regulations to expressly provide for the possibility of carrying out an EIA at the reserved matters stage, after the grant of an outline planning permission, if it becomes apparent that a development is likely to have significant effects on the environment. In the meantime, both jurisdictions have issued interim guidance (see reference point) for planning authorities regarding reserved matters applications pending any legislative or administrative action that is taken to comply with the terms of the ECJ judgments.

The interim guidance makes it clear that ‘in some circumstances’ consideration may need to be given to an EIA at the subsequent reserved matters stage. The ECJ has ruled that such consideration may be required where likely significant effects are identified at the reserved matters stage that either:

(a) were not identifiable or identified at the outline planning permission stage; or

(b) were identifiable but which now require ‘a fresh assessment’, probably because of a significant change of circumstances.

As the EIA Directive has direct effect, planning authorities must satisfy themselves that they have met the requirements of the EIA Directive and ECJ judgments when considering outline planning applications and the subsequent approval of reserved matters, even though this is not at present required by current UK legislation.

Implications

Developers are advised to proceed with caution where outline consent has been granted for a project but not all reserved matters are approved – they could find themselves in the unenviable position of repeating the whole EIA process at the reserved matters stage, even where this has already been carried out at outline stage. In any case where detail is being added to principles established at the outline stage, the environmental effect of those details should be communicated to and considered by the relevant planning authority.

If the reserved matters stage now represents a further period in which potential challenges to developments can be raised on the basis of either no or an inadequate EIA having been carried out, the exposure period for developers in this respect has increased. It is therefore advisable to ensure that as much detail as possible is fixed at the outline application stage and that the development stays within the environmental parameters of the originally envisaged development, if the EIA process is to be avoided at a later stage in planning proceedings.  © Property Law Journal