L39 - action resulting from the EC judgements (L37 & L38)

	Department for Communities and Local Government	Colin Byrne Director for Town and Country Planning Planning Directorate DCLG 4/D1 Eland House Bressenden Place London SW1E 5DU Direct Line: 020 7944 3900 Divisional Enquiries: 020 7944 3895 Fax: 5824 GTN No: 3533 3900 Web Site: www.communities.gov.uk 30 June 2006

Dear Chief Planning Officer

Applications for Outline Planning Permission, Applications for approval of reserved matters and EIA procedure; The Effect of ECJ judgments in the cases of Ex parte Barker and Crystal Palace/White City

Planning authorities may have become aware of the above judgments recently handed down by the European Court of Justice (ECJ) which impact on the way we deal with applications for outline planning permission that require environmental impact assessment. This is a note to provide interim guidance for planning authorities regarding reserved matters application pending any legislative or administrative action which is taken to comply with the terms of the judgments.

The ECJ has ruled in cases C-290/03 (R v London Borough of Bromley, ex parte Barker) & C-508103 (Commission v UK) that outline planning permission ("OPP") and the decision that subsequently gives approval of reserved matters must now be considered to constitute a multi-stage development consent within the meaning of Article 1.2 of the EIA Directive. Article 1.2 defines development consent as the "decision of the competent authority or authorities which entitled the developer to proceed with the project".

The full effect of these important judgments may not be clear for some time, but I wanted to draw them to your attention and urge that you draw them to the attention of your planning colleagues. Particular attention should be given to paragraphs 46-49 of the Barker judgment and paragraphs 100-109 of Commission v UK.

The judgments can be viewed at http://curia.europa.eu/en/actu/activites/index.htm.

It is clear that in due course we will have to amend our EIA Regulations to address the judgments of the ECJ. To do so at this stage, however, would be premature when there is still some uncertainty about precisely how the judgments are to be interpreted. We are trying to resolve this.

The background to the Cases

Barker concerned an OPP to develop a leisure complex in Crystal Palace Park granted by the London Borough of Bromley ("Bromley"). At the time of the grant of OPP Bromley determined that an EIA was not required. Subsequently an application was made to Bromley for approval of reserved matters. At the meeting where a decision was to be taken on approval of the reserved matters, some Bromley councillors expressed the wish that an EIA should be carried out. After legal advice had been sought, however, they were informed that as a matter of domestic law an [EIA was not required. Ed.].

Interim guidance in the light of the ECJ's decisions

As noted above, final guidance on the full implications of these judgments must await the outcome of a hearing in the House of Lords. In the interim DCLG considers that when considering applications for approval of reserved matters local planning authorities should take the following matters into account, but it also strongly advises that local planning authorities should seek guidance from their own legal advisers:

(1)	The ECJ's decisions confirm that it is lawful to grant OPPs. The effect of the judgments is not to require the removal of the concept of OPP, but to ensure EIA is carried out at the implementing stage (reserved matters approval) in the circumstances identified by the ECJ.
(2)	The ECJ emphasised strongly that effects which a project may have on the environment must be identified and assessed at the time of the procedure relating to the grant of OPP. It is only if those effects are not identifiable until the time of the procedure relating to the approval of reserved matters that EIA needs to be considered at that later stage. Accordingly, the ECJ's decisions do not affect the guidance we have given in Circular 02199 that EIA needs to be carried out at the earliest stage possible i.e. before OPP is granted. We have also provided guidance about how EIA should be carried out following the Tew and Milne judgments1 in the English Courts and a summary is provided at the end of this note. Although matters of law are ultimately for the Courts, DCLG considers that Tew and Milne continue to represent the proper approach to be taken to EIA at the OPP stage.
(3)	The ECJ has made it clear that "in some circumstances" consideration may need to be given to EIA at the subsequent reserved matters stage. As the EIA Directive has direct effect2, DCLG considers that 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.
(4)	What the ECJ requires is that such consideration may be required where likely significant effects are identified at the reserved matters stage which either a. were not identifiable or identified at the OPP stage, or b. were identifiable but which now require "a fresh assessment", probably because of a significant change of circumstances.
(5)	In this regard DCLG considers that there are broadly three situations in which planning authorities will have to give consideration to the need for EIA at the approval of reserved matters stage: a. Where an EIA was undertaken at the OPP stage. Provided that the approach recommended in Tew and Milne has been rigorously followed the likelihood of the need for further EIA at the reserved matters stage is unlikely. b. Where EIA was considered, but determined not to be required at the OPP stage. Again, provided the screening process at the OPP stage was undertaken properly and in accordance with the guidance in Circular 02/99 it will only be in relatively rare cases that EIA should be required at the reserved matters stage when it was not required at the OPP stage.

Summary of the position prior to Judgment

Before the judgment guidance on how an OPP could satisfy the requirements of EIA regulations was based on the judgment in the Tew and Milne cases which set out the requirements an outline application had to follow. Guidance was provided by the then ODPM based on the judgment to planning authorities in the "Note to LPAs on the EIA Directive". A summary is set out below:

(1) An application for a bare OPP with all matters reserved for later approval is unlikely to comply with the requirement of the EIA Regulations;

(2) When granting OPP, the permission must be conditioned by reference to the development parameters considered in the environmental information provided in the ES which has been considered and assessed by the authority prior to approval. This can be usually done by conditions although it would also be possible to achieve this by a section 106 agreement;

(3) Developers are not precluded from having a degree of flexibility in how a scheme may be developed. But each option will need to have been properly assessed and be within the remit of the OPP if it is to be permitted as an option for reserved matters; and

(4) Development carried out pursuant to a reserved matters consent granted for a matter that does not fall within the remit of the outline consent will be unlawful. If a developer wishes to develop outside the parameters of the OPP conditions, then a new planning permission must be sought or an application made under section 73 of the 1990 Act. In either case, fresh consideration should be given to the need for EIA of the revised development. Applications to amend projects which have already required EIA may fall within paragraph 13 of Schedule 2 to the EIA Regulations.

The full note can be seen at http://www.communities.gov.uk/index.asp?id=1143273

Yours faithfully

Colin Byrne

2-Direct effect means that in the absence of national legislation that gives effect in a Member State to the obligations the Directive imposes on then, individuals have the right to rely on, and the Courts take into consideration, the provisions and obligations of the Directive. Individuals could rely on the Directive against a local planning authority as in R v. Durham County Council ex parte Huddleston [2000] I W.L.R. 1484.

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Full Judgements on this website - click below.

L.37 Judgement of the Court (First Chamber) - Case C-508/03, 4 May 2006: Commission v UK
L.38 Judgement of the Court (First Chamber) - Case C-290/03, 4 May 2006: Barker v Bromley
Other European Commission information go to Themes

13/7/2006 Last Updated 13/7/2006