4 May 2006 *
(Directive 85/337/EEC &endash; Assessment of the effects of certain projects on the environment &endash; Crystal Palace development project &endash; Projects falling within Annex II to Directive 85/337 &endash; Grant of consent comprising more than one stage)
* Language of the case: English.
NAVIGATION:
Judgment
Legal Context - Community
Legislation
- National
legislation
The Town and Country
Planning Act and the General Development Procedure
Order
The Assessment of
Environmental Effects Regulations
Implementing
measures
The main proceedings and
the questions referred for a preliminary
ruling
Consideration of the
questions
- Question
1
- Questions 2 and
3
Costs
In Case C-290/03,
REFERENCE for a preliminary ruling under Article 234 EC from the House of Lords (United Kingdom), made by order of 30 June 2003, received at the Court on 3 July 2003, in the proceedings
The Queen, on the application of:
Diane Barker,
London Borough of Bromley,
intervener:
First Secretary of State,
composed of P. Jann (Rapporteur), President of the Chamber, K. Schiemann, N. Colneric, E. Juhász and E. Levits, Judges,
Advocate General: P. Léger,
Registrar: L. Hewlett, Principal Administrator,
having regard to the written procedure and further to the hearing on 22 June 2005, after considering the observations submitted on behalf of:
- Ms Barker, by R. McCracken QC and G. Jones and J. Pereira, Barristers, instructed by R.M. Buxton, Solicitor,- the London Borough of Bromley, by T. Straker QC and J. Strachan, Barrister, instructed by Sharpe Pritchard, Solicitors,
- the United Kingdom Government, by K. Manji, acting as Agent, D. Elvin QC and J. Maurici, Barrister,
- the French Government, by G. de Bergues and D. Petrausch, acting as Agents,
- the Commission of the European Communities, by F. Simonetti and X. Lewis, acting as Agents,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
1 This reference for a preliminary
ruling concerns the interpretation of Articles 1(2), 2(1)
and 4(2) of Council Directive 85/337/EEC of 27 June 1985 on
the assessment of the effects of certain public and private
projects on the environment (OJ 1985 L 175, p.
40). 2 The reference was
made in the course of proceedings between Ms Barker and the
London Borough of Bromley ('Bromley LBC'), the competent
planning authority, concerning the grant of planning
permission to develop a leisure complex in Crystal Palace
Park, London, without an environmental impact assessment
having been carried out. Legal context Community legislation 3 According to the fifth recital in
the preamble thereto, Directive 85/337 is intended to
establish general principles for the assessment of
environmental effects with a view to supplementing and
coordinating development consent procedures governing public
and private projects which are likely to have an effect on
the environment. 4 For this purpose, Article 1(2) of
Directive 85/337 defines 'development consent' as 'the
decision of the competent authority or authorities which
entitles the developer to proceed with the
project'. 5 Article 2(1) of the directive
states: 'Member States shall adopt all
measures necessary to ensure that, before consent is given,
projects likely to have significant effects on the
environment by virtue inter alia of their nature, size or
location are made subject to an assessment with regard to
their effects. These projects are defined in
Article 4.' 6 Article 4 of the directive
provides: 2. Projects of the classes listed
in Annex II shall be made subject to an assessment, in
accordance with Articles 5 to 10, where Member States
consider that their characteristics so
require. To this end Member States may inter
alia specify certain types of projects as being subject to
an assessment or may establish the criteria and/or
thresholds necessary to determine which of the projects of
the classes listed in Annex II are to be subject to an
assessment in accordance with Articles 5 to 10.' 7 Point 10(b) of Annex II to the
directive refers to 'urban development projects'.
Top 8 Directive 85/337,
in particular the rules relating to projects falling within
Annex II, was substantially amended by Council Directive
97/11/EC of 3 March 1997 (OJ 1997 L 73, p. 5), which had to
be transposed in the United Kingdom by 14 March 1999 at the
latest. Since the application seeking consent for the
project at issue in the main proceedings was submitted to
the competent authority before the latter date, those
amendments are not relevant to the project, as is clear from
Article 3(2) of Directive
97/11. National legislation 9 In England, the principal legal
instrument relating to land planning is the Town and Country
Planning Act 1990 ('the Town and Country Planning Act'),
which lays down general rules concerning both the grant of
planning permission and the modification or revocation of
such permission. This Act is amplified by the Town and
Country Planning (General Development Procedure) Order 1995
('the General Development Procedure Order') and the Town and
Country Planning (Assessment of Environmental Effects)
Regulations 1988 ('the Assessment of Environmental Effects
Regulations'). 10 The Assessment of
Environmental Effects Regulations were replaced by the Town
and Country Planning (Environmental Impact Assessment)
(England and Wales) Regulations 1999. However, since these
new regulations apply only to applications lodged on or
after 14 March 1999, they are not relevant to the project at
issue in the main proceedings. - The Town and Country Planning Act
and the General Development Procedure Order 11 Under section 57(1) of the Town and
Country Planning Act, planning permission is required for
any 'development' within the meaning of section 55, a term
which includes 'the carrying out of building … or other
operations in, on, over or under land …'.
Top 12 Planning permission may be granted
in several forms, one of which is outline permission with a
requirement of subsequent approval of the reserved
matters. 13 Section 92(1) of the Town and
Country Planning Act provides that 'outline planning
permission' is permission 'granted, in accordance with the
provisions of a development order, with the reservation for
subsequent approval by the local planning authority or the
Secretary of State of matters not particularised in the
application ("reserved matters")'. 14 Article 1(2) of the General
Development Procedure Order defines such 'reserved matters'
as 'any of the following matters in respect of which details
have not been given in the application, namely (a) siting,
(b) design, (c) external appearance, (d) means of access,
(e) the landscaping of the site'. 15 Section 92(2) of the Town and
Country Planning Act implicitly provides that consent is
deemed to be finally given for a reserved matter by the
decision granting subsequent approval. 16 It is apparent from
section 73 of the Town and Country Planning Act that an
application for an amendment to an existing permission
constitutes an application for a new planning
permission. - The Assessment of Environmental
Effects Regulations 17 By virtue of the Assessment of
Environmental Effects Regulations, certain projects must be
subject to an environmental impact assessment before consent
is granted. 18 Schedule 2 to the regulations sets
out the classes of project which are listed in Annex II to
Directive 85/337, including 'urban development
project[s]'. 19 Under regulation 2(1) of the
Assessment of Environmental Effects Regulations, 'Schedule 2
application' means 'an application for planning permission
… for the carrying out of development of any
description mentioned in Schedule 2, which is not exempt
development and which would be likely to have significant
effects on the environment by virtue of factors such as its
nature, size or location', this being a matter to be
assessed by the competent authority on a case-by-case
basis. 20 As provided in regulation 4(1) and
(2) of the Assessment of Environmental Effects Regulations,
the competent authority cannot grant planning permission in
respect of, inter alia, a Schedule 2 application unless it
has first taken the environmental information into
consideration and states in its decision that it has done
so. 21 When faced with an application for
planning permission in respect of a project envisaged in
Schedule 2 to the regulations, the competent authority must
therefore, on a case-by-case basis, determine prior to any
grant of planning permission whether the characteristics of
the project require an assessment of its environmental
impact, that is to say whether the project is likely to have
significant effects on the environment, and refuse
permission if it does not have sufficient information to
come to a decision on this point. Top 22 Under national law,
outline planning permission constitutes 'planning
permission' for the purposes of regulation 4 of the
Assessment of Environmental Effects Regulations, whereas the
decision approving reserved matters does not. For this
reason, an environmental impact assessment can, under
national law, be carried out in respect of a project only at
the initial outline planning permission stage, and not at
the later stage of approval of the reserved
matters. Implementing measures 23 Circular 15/88, issued by the
Department of the Environment, provides non-statutory
guidance to help the competent authorities to identify
projects as referred to in Schedule 2 to the Assessment of
Environmental Effects Regulations which must be the subject
of an environmental impact assessment. 24 After stating, in paragraph 18, that
the basic question to be asked is whether a project is
likely to give rise to significant environmental effects,
Circular 15/88 then explains, in paragraph 20, that in
general terms an assessment is needed (i) for projects which
are of more than local importance, (ii) for projects
proposed in sensitive locations and (iii) for projects with
unusually complex and potentially adverse
effects. 25 Paragraphs 30 and 31 of Circular
15/88 state that, for certain categories of project,
criteria and thresholds are listed in Appendix A to the
circular that are intended to give a broad indication of the
types of cases in which, in the Secretary of State's view,
an environmental assessment may be required under the
Assessment of Environmental Effects Regulations or,
conversely, is not likely to be required. The circular adds,
however, that those criteria and thresholds are purely
indicative and the fundamental test to be applied in each
case is whether the project is likely to have significant
environmental effects. 26 With regard, more particularly, to
urban development projects, the circular states, in
paragraph 15 of Appendix A, that redevelopment of previously
developed land is unlikely to require an assessment, unless
the proposed development is one of certain specific types or
is on a very much greater scale than the previous
development. 27 The circular states, in paragraph 16
of Appendix A, with regard to projects on sites which have
not previously been intensively developed that 'the need for
[an assessment] should be considered in the light of
the sensitivity of the particular location'. Thus, 'such
schemes … may require [an assessment]
where: (ii) there are significant
numbers of dwellings in close proximity to the site of
the proposed development, e.g. more than 700 dwellings
within 200 metres of the site boundaries; or (iii) the development would
provide a total of more than 10 000 square metres (gross)
of shops, offices or other commercial uses'.
Top 28 In addition,
paragraph 42 of the circular states that the preparation of
an environmental statement is bound to require the developer
to work out his proposals in some detail. Otherwise any
thorough appraisal of likely effects will be impossible. It
will be for the planning authority to judge how much
information is required in the particular case. The
information given in the environmental statement will have
an important bearing on whether matters may be reserved in
an outline planning permission. Where the information states
or implies a particular treatment of any matter, it will not
be appropriate to reserve that matter in the planning
permission. The main proceedings and the
questions referred for a preliminary ruling 29 Ms Barker lives in the vicinity of
Crystal Palace Park. 30 On 4 April 1997 London &
Regional Properties Ltd ('L&R') applied to Bromley LBC
for outline planning permission to develop a leisure complex
in Crystal Palace Park ('the Crystal Palace development
project'), a project falling within Annex II to Directive
85/337. 31 After consideration which took into
account a number of reports and additional information,
Bromley LBC concluded that an environmental impact
assessment was not required for the project. 32 On 24 March 1998 Bromley LBC granted
outline planning permission, reserving certain matters for
subsequent approval before any development was
commenced. 33 On 25 January 1999 L&R applied
to Bromley LBC for final determination of certain reserved
matters. The details of the Crystal Palace development
project then showed: (i) on the ground floor, 18 cinemas, a
leisure area and an exhibition area; (ii) at the gallery
level, restaurants and cafes, two leisure areas and public
toilets; (iii) at roof level, a roof-top car park with a
maximum of 950 spaces, four viewing areas and areas
enclosing plant and equipment; (iv) the addition of a
mezzanine floor of 800 square metres; and (v) changes to the
construction of the external walls. 34 At the meeting where a decision was
to be taken on approval of the reservedmatters, some Bromley
LBC councillors expressed the wish that an environmental
impact assessment should be carried out. However, after
legal advice had been sought, they were informed that as a
matter of domestic law an assessment could be carried out
only at the initial outline planning permission stage.
35 Bromley LBC issued the notice of
approval on 10 May 1999. 36 Ms Barker's action challenging that
approval and the legal advice on which it was based was
dismissed at first instance and by the Court of Appeal.
37 Since the House of Lords, before
which Ms Barker brought an appeal, had doubts as to the
compatibility with Community law of the national rules
according to which an environmental impact assessment can be
carried out only at the outline planning permission stage
and not when the reserved matters are subsequently approved
('the rules at issue in the main proceedings'), it decided
to stay proceedings and refer the following questions to the
Court for a preliminary ruling: (2) Does the Directive require an
EIA [environmental impact assessment] to be
carried out if, following the grant of outline planning
permission subject to conditions that reserved matters be
approved, without an EIA being carried out, it appears
when approval of reserved matters is sought that the
project may have significant effects on the environment
by virtue inter alia of its nature, size or location
(Article 2(1) of the Directive)? (3) In circumstances
where: (b) the competent authority
then determines that it is unnecessary to carry out an
EIA and grants outline planning permission subject to
conditions reserving specified matters for later
approval; and (c) that decision can then be
challenged in the national courts; may national law, consistently
with the Directive, preclude a competent authority from
requiring that an EIA be carried out at a later stage of
the planning process?' Consideration of
the questions Question 1 38 By its first question, the national
court essentially asks whether classification of a decision
as a 'development consent' within the meaning of Article
1(2) of Directive 85/337 depends exclusively on national
law. 39 Article 1(2) of Directive 85/337
defines 'development consent' for the purposes of the
directive as the decision of the competent authority or
authorities which entitles the developer to proceed with the
project. 40 Thus, while this term is modelled on
certain elements of national law, it remains a Community
concept which, contrary to the submissions of Bromley LBC
and the United Kingdom Government, falls exclusively within
Community law. According to settled case-law, the terms used
in a provision of Community law which makes no express
reference to the law of the Member States for the purpose of
determining its meaning and scope are normally to be given
throughout the Community an autonomous and uniform
interpretation which must take into account the context of
the provision and the purpose of the legislation in question
(see, to this effect, Case 327/82 Ekro [1984] ECR
107, paragraph 11; Case C-287/98 Linster
[2000] ECR I-6917, paragraph 43; and Case C-201/02
Wells [2004] ECR I-723, paragraph 37).
41 The answer to the first question
must therefore be that classification of a decision as a
'development consent' within the meaning of Article 1(2) of
Directive 85/337 must be carried out pursuant to national
law in a manner consistent with Community law.
Top 42 By its second and third questions,
which it is appropriate to consider together, the national
court essentially asks whether Articles 2(1) and 4(2) of
Directive 85/337 are to be interpreted as requiring an
environmental impact assessment to be carried out if,
following the grant of outline planning permission, it
appears at the time of approval of the reserved matters that
the project is likely to have significant effects on the
environment by virtue inter alia of its nature, size or
location. 43 First, according to Article 2(1) of
Directive 85/337, projects likely to have significant
effects on the environment, as referred to in Article 4 of
the directive read in conjunction with Annexes I and II
thereto, must be made subject to an assessment with regard
to their effects before development consent is given
(Wells, paragraph 42). 44 As has been noted in paragraph 39 of
the present judgment, Article 1(2) of Directive 85/337
defines 'development consent' for the purposes of the
directive as the decision of the competent authority or
authorities which entitles the developer to proceed with the
project. 45 It is apparent from the scheme and
the objectives of Directive 85/337 that this provision
refers to the decision (involving one or more stages) which
allows the developer to commence the works for carrying out
his project. 46 Having regard to those points, it is
therefore the task of the national court to verify whether
the outline planning permission and decision approving
reserved matters which are at issue in the main proceedings
constitute, as a whole, a 'development consent' for the
purposes of Directive 85/337 (see, in this connection, the
judgment delivered today in Case C-508/03 Commission v
United Kingdom [2006] ECR I-0000, paragraphs 101
and 102). 47 Second, as the Court explained in
Wells, at paragraph 52, where national law provides
for a consent procedure comprising more than one stage, one
involving a principal decision and the other involving an
implementing decision which cannot extend beyond the
parameters set by the principal decision, the effects which
a project may have on the environment must be identified and
assessed at the time of the procedure relating to the
principal decision. It is only if those effects are not
identifiable until the time of the procedure relating to the
implementing decision that the assessment should be carried
out in the course of that procedure. 48 If the national court therefore
concludes that the procedure laid down by the rules at issue
in the main proceedings is a consent procedure comprising
more than one stage, one involving a principal decision and
the other involving an implementing decision which cannot
extend beyond the parameters set by the principal decision,
it follows that the competent authority is, in some
circumstances, obliged to carry out an environmental impact
assessment in respect of a project even after the grant of
outline planning permission, when the reserved matters are
subsequently approved (see, in this regard, Commission v
United Kingdom, paragraphs 103 to 106). This assessment
must be of a comprehensive nature, so as to relate to all
the aspects of the project which have not yet been assessed
or which require a fresh assessment. 49 In the light of all
of the foregoing, the answer to the second and third
questions must be that Articles 2(1) and 4(2) of Directive
85/337 are to be interpreted as requiring an environmental
impact assessment to be carried out if, in the case of grant
of consent comprising more than one stage, it becomes
apparent, in the course of the second stage, that the
project is likely to have significant effects on the
environment by virtue inter alia of its nature, size or
location. Top Costs 50 Since these proceedings are, for the
parties to the main proceedings, a step in the action
pending before the national court, the decision on costs is
a matter for that court. Costs incurred in submitting
observations to the Court, other than the costs of those
parties, are not recoverable. On those grounds, the Court (First
Chamber) hereby rules: 1. Classification of a
decision as a 'development consent' within the
meaning of Article 1(2) of Council Directive
85/337/EEC of 27 June 1985 on the assessment of
the effects of certain public and private
projects on the environment must be carried out
pursuant to national law in a manner consistent
with Community law. 2. Articles 2(1) and
4(2) of Directive 85/337 are to be interpreted
as requiring an environmental impact assessment
to be carried out if, in the case of grant of
consent comprising more than one stage, it
becomes apparent, in the course of the second
stage, that the project is likely to have
significant effects on the environment by virtue
inter alia of its nature, size or
location.
'1. Subject to Article
2(3), projects of the classes listed in Annex I shall be
made subject to an assessment in accordance with Articles
5 to 10.
(i) the site area of the
scheme is more than five hectares in an urbanised area;
or
'(1) Is identification of
"the decision of the competent authority or authorities
which entitles the developer to proceed with the project"
(Article 1(2) of Directive 85/337/EEC ("the Directive"))
exclusively a matter for the national court applying
national law?
(a) national planning
law provides for the grant of outline planning
permission at an initial stage of the planning process
and requires consideration by the competent authority
at that stage as to whether an EIA is required for
purposes of the Directive; and
[Signatures]
NAVIGATION:
Judgment
Legal Context - Community
Legislation
- National
legislation
The Town and Country
Planning Act and the General Development Procedure
Order
The Assessment of
Environmental Effects Regulations
Implementing
measures
The main proceedings and
the questions referred for a preliminary
ruling
Consideration of the
questions
- Question
1
- Questions 2 and
3
Costs
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9/5/06 Last Updated 9/5/06