PLANNING - ENVIRONMENT

ENVIRONMENTAL IMPACT ASSESSMENTS: OUTLINE PLANNING PERMISSION: RESERVED MATTERS : SCREENING OPINIONS : NEED FOR ENVIRONMENTAL IMPACT ASSESSMENT

A challenge to the decision of a planning authority not to require an environmental impact assessment at the approval of reserved matters stage was, as it had been formulated, an impermissible collateral challenge to two previous outline planning permissions and the screening decision in respect of the second of them, which could have been but had not been challenged by way of judicial review.

The appellant (N) appealed against the decision ((2004) EWHC 2576 (Admin)) approving matters reserved on the grant of outline planning permission for a leisure development without requiring an environmental impact assessment (EIA) in respect of those matters. The respondent local planning authority had granted outline planning permission in 1997 for a business park in Ramsgate. The developer had not provided an EIA with its application and the local authority had not required one. In 2002 the local authority had granted outline permission for a leisure development on part of the business park site. The authority had not required an EIA with the application because it had previously concluded in 2000 that an EIA was not required. In 2004 the developer had sought approval of reserved matters in respect of its proposed leisure development consisting of a detached multiplex cinema with associated car parking, servicing, vehicle access and landscaping. The local authority had conducted a screening exercise and concluded that no EIA was needed before the reserved matters were approved. N argued that the approval of reserved matters should be quashed because the decision that no EIA was needed was based upon a comparison with the grant of the business park outline permission in respect of which there had been no consideration of whether an EIA was necessary, or was based upon a comparison with the leisure park outline permission which was unlawful as a result of the decision not to require an EIA.

HELD: (1) In considering whether an EIA was necessary at the approved matters stage the local authority's essential comparison had been with the leisure outline planning permission, not the business park permission. (2) It was a matter for the planning judgment of a planning authority, challengeable only on a Wednesbury basis, whether it had sufficient material before it at the outline planning stage to decide whether a proposed development would be likely to have such significant effects on the environment as to require an EIA, R (on the application of Jones) v Mansfield DC (2003) EWCA Civ 1408 , (2004) Env LR 21 applied. In the instant case there was no basis for a Wednesbury challenge to the authority's decision not to require an EIA at the leisure park outline permission stage. The particularity of the proposed development at the outline stage was such as to have enabled the authority to conclude that it did not require an EIA. (3) There was nothing perverse about the local authority conducting a screening exercise at the reserved matters stage even though it had already done so at the permission stage and concluded that an EIA was not necessary. That decision to screen again was eminently rational given the legal uncertainty over the necessity for an EIA at the reserved matters stage. (4) It was clear law, and clear on the facts, that N could not challenge directly or indirectly either of the outline planning permissions or the screening decision in respect of the second of them. The challenge to the decision not to require an EIA at the approval of reserved matters stage was, in the way it had been formulated by N, an impermissible collateral challenge to those decisions. There was no scope for a challenge to the approval, without an EIA, of reserved matters on the basis that it was a later decision adopting an earlier erroneous decision, since the authority had not relied on its 2000 screening decision in respect of the 2002 leisure park outline permission, but simply took that permission into account as a relevant factor. If either of the two outline planning permissions required and/or were not the subject of valid screening exercise, there had been a clear domestic remedy by way of judicial review for quashing either of them and/or the screening opinion at the leisure park outline permission stage. (5) It was not necessary to make a reference to the European Court of Justice.

Appeal dismissed.

R (on the application of THE NOBLE ORGANISATION) (Claimant) v THANET DISTRICT COUNCIL (Defendant) & (1) ROSE FARM ESTATES PLC (2) THE RANK GROUP PLC (Interested Parties) (2005) CA (Civ Div) (Auld LJ, Mummery LJ, Gage LJ) 28/6/2005

"Lawtel": 4.7.05