In that case, planning permission for a complex London rail scheme had lapsed, but the problem was got around by all the parties agreeing to ‘revive’ the permission by utilising a planning agreement (in which London Underground undertook to observe virtually all the conditions that had been in the lapsed permission, with the planning authorities agreeing not to take enforcement proceedings to stop the development). The advantage of this approach was that it meant there was no need to start the consultation process again, and in particular there was no need to go through all the EIA hurdles that would otherwise have applied.

At the time, many saw Prokopp as a pragmatic solution to a difficult planning issue: the route in question had been litigated over and delayed for many years, and there was much pressure on the courts to allow the scheme to proceed. But, at the same time it was seen as an indicator of a substantial shift in judicial attitude towards the EIA Regs, with the abandonment of an absolute, strict approach. That trend was followed in several other cases in 2003.

Now, however, that approach seems to have been brought to an abrupt halt as a result of an ECJ ruling. That case involved old mining consents and whether they could be revived without involving the EIA regime. The ECJ took a strict approach looking at the substance of what was being done; indeed, the reality is that there was no real difference between the planning issues raised in that case and those raised in Prokopp [2003]. But, according to the ECJ, the full EIA regime would need to be complied with.

What are the practical consequences of the ECJ decision? As a note in the SJ suggests, despite the recent efforts of the CA, breaches of the EIA Regs now have to be treated seriously. The CA has been given a reminder by the ECJ that the Directive is broad and wide in its scope and, if there has been a breach of the Regs, then European law must take precedent over the inconvenience to the developer. It has to be said that the implications of the ECJ decision already seem to have been recognised by the CA, since in January strong comments were made that there would have to be a change of attitude and that the court would welcome ‘an opportunity to draw these threads together’. The likelihood is, therefore, that Prokopp is no longer good law.

One other aspect of the ECJ decision that will also cause concern to developers and LAs was the conclusion that individuals can invoke the provisions of the Directive. In essence, this now strengthens the hand of individuals and makes it far more likely that atempts to bypass the EIA Regs will be litigated. For a commentary on the ECJ decision in Wells [2004] see helpful article in [2004] SJ 200. © Practical Lawyer