Planning after Barker

The House of Lords' decision last December in R (Barker) v Bromley LBC [2006] UKHL 52, confirmed the earlier ruling of the European Court of Justice that an environmental impact assessment could take place at any stage of the planning application process.

The most obvious of the practical effects of the ruling is that the Environmental Impact Assessment (EIA) Regulations 1999 must be amended in order to be consistent with EU law. While the amendments to the Regulations are still awaited, developers and local authorities should not sit back waiting for them. The Directive has direct effect even though it has not been correctly transposed and the issues in it are real and enforceable now.

It is now clear that an EIA can be required at the reserved matters stage although, of course, not every reserved matters application will need one. If this has been carried out sufficiently at the outline permission stage, there is no need to go over old ground and repeat the process. The need will normally arise only where it was overlooked at the outline stage.

There is, however, the possibility that, even where it was carried out at the outline stage, a fresh assessment will be needed. This will occur, for example, where details prepared for the reserved matters application show that significant environmental effects are likely which were not identified earlier.

It is still a requirement of the Directive that such an assessment is carried out 'at the earliest possible stage'. It should also be remembered that the requirement is to assess 'likely' environmental effects of the project.

Interim guidance

When considering how to handle applications in advance of the Regulations being amended, the interim guidance issued by the Department of Communities and Local Government in June 2006, pending the decision of the House of Lords, is a good starting point for both local planning authorities and applicants.

Amongst other advice, this letter recommends that local planning authorities should carry out further screening at the reserved matters stage to weed out cases where a further (or indeed a first) EIA is needed.

Any developer who has had to prepare an environmental statement will be well aware of the time it takes to put such a document together, and of the relatively short timeframe he has in which to submit his application for approval of reserved matters. While the requirement is to carry out the EIA before the development consent is granted, rather than before the reserved matters application is lodged, applicants should not delay in starting the EIA ball rolling. It is worth remembering that logically this requirement does not apply solely to applications for reserved matters approvals, but may apply to other approvals under a pre-development condition.

Advice

From a local authority point of view, there are perhaps a couple of things it can do to safeguard its position, and that of the developer, in light of Barker. They should consider the imposition of conditions at the outline stage to restrict the project so that it remains within the scope of the original assessment, although it is recognised that this cannot protect against every eventuality and unforeseen environmental effects may still arise at the reserved matters stage.

On first impression, it seems as though Barker could mean the flexibility of outline permissions will be diminished, with conditions being imposed purposefully to restrict the scope of the consent. We would suggest that to prevent this being the case, it will simply become important for developers to consider the flexibility that they want to protect at outline stage and to ensure that their EIA covers all likely effects within that flexibility.

There may also be circumstances in which it is helpful to impose conditions or planning obligations on the reserved matters approval in order to mitigate the potential environmental effects. This may make it possible to conclude that no such effects are 'likely' and therefore to negate the need for an EIA at that later stage. While the Town and Country Planning Act 1990 does not specifically provide for conditions to be imposed on a reserved matters approval, it does provide for appeals against the conditional approval of reserved matters (s 78(1)). It was held in R v Newbury District Council ex p Stevens and Partridge [1992] 65 P&CR 438 that it was possible for a local planning authority to impose such conditions provided they did not materially derogate from the permission that had been granted.

There may be some concern at the House of Lords' statement that Sullivan J's observation in R v Rochdale MBC ex p Tew [2000] Env LR 1 to the effect that, once planning permission is granted, the local planning authority cannot prevent the development proceeding, is unsound. While not going as far as to say that the statement was incorrect, is there now a seed of doubt about whether a developer may be faced with an outline planning permission which he cannot implement because he cannot find a detailed scheme that is acceptable in terms of likely environmental effects? What the House of Lords meant is not entirely clear.

Unlawful consequences of breach

Local authorities, and indeed developers, should be aware of the duty of member states to nullify unlawful consequences of breaches of EU law. The extent of this duty is also unclear from Barker: if an EIA is overlooked at the outline stage and it becomes clear at the reserved matters stage that it should have been considered then does the planning authority have a duty to revoke the original permission and pay compensation for doing so? Or is it enough to nullify the original breach by considering likely environmental effects at the reserved matters stage?

Looking at the optimistic side of the point, if there is a failure in an EIA carried out at the outline permission stage, there may now be the opportunity to cure this at the reserved matters stage.