R (Barker) v Bromley London Borough Council (Secretary of State for Communities and Local Government, intervener)
| Jurisdiction | UK Non-devolved |
| Judge | LORD CARSWELL,LORD HOPE OF CRAIGHEAD,LORD BROWN OF EATON-UNDER-HEYWOOD,BARONESS HALE OF RICHMOND,LORD BINGHAM OF CORNHILL |
| Judgment Date | 06 December 2006 |
| Neutral Citation | [2006] UKHL 52 |
| Date | 06 December 2006 |
| Court | House of Lords |
[2003] UKHL J0630-1
HOUSE OF LORDS
FORTY-FIFTH REPORT
from the Appellate Committee
Request for a preliminary ruling by the Court of Justice of the European Communities pursuant to Article 234 of the Treaty Establishing the European Communities
ORDERED TO REPORT
The Committee (Lord Bingham of Cornhill (Chairman), Lord Steyn, Lord Hope of Craighead, Lord Hutton and Lord Scott of Foscote) have met and have considered the cause The Queen against the London Borough of Bromley on behalf of Barker. We have heard counsel on behalf of the appellant and respondents and on behalf of the First Secretary of State in intervention.
This is the considered opinion of the Committee. The cause should be referred to the Court of Justice of the European Communities for a preliminary ruling pursuant to Article 234 of the Treaty establishing the European Communities.
In this preliminary reference the Court of Justice is asked to interpret the provisions of Directive 85/337/EEC ("the Directive"). It is asked to do so in the context of a dispute where an environmental impact assessment (EIA) was not carried out when, after the grant of outline planning permission subject to approval of reserved matters without an EIA being carried out, approval was sought of those reserved matters.
The applicant, and the claimant in the domestic proceedings, is Diane Barker. She lives with her daughter on Anerley Hill, opposite the entrance to a proposed development in Crystal Palace Park, London SE19.
The London Borough of Bromley, the respondent in these proceedings, is the local planning authority responsible for planning development in an area which includes Crystal Palace Park. It owns the Park and is empowered by the Bromley London Borough (Crystal Palace) Act 1990 to lease the site of the former Crystal Palace (now destroyed) for leisure purposes.
The First Secretary of State has been granted leave to intervene in the proceedings. He is the minister responsible for planning and the development of land.
The facts giving rise to the dispute are fully stated in the judgments of Jackson J ( [2000] Env LR 1) and the Court of Appeal ( [2001] EWCA Civ 1766), to which reference may be made. In very brief summary, the essential facts agreed between the parties are these:
(1) In April 1997 London & Regional Properties Limited ("L&R") applied to the respondent council for outline planning permission under the Town and Country Planning Act 1990 to develop the Crystal Palace site for leisure purposes.
(2) In March 1998 the council granted planning permission for the proposed development subject to a number of detailed conditions relating to such matters as siting, design, appearance, access, landscaping, building materials, car parking, noise insulation and lighting. The planning permission was accompanied by illustrative plans and supporting documents which restricted to some extent the scope of the development through incorporation by conditions.
(3) The council did not at that stage require a formal EIA to be made under the Town and Country Planning (Assessment of Environmental Effects) Regulations ( SI 1988/1199) ("the 1988 Regulations"), which had been made to give effect to the Directive.
(4) A legal challenge to the grant of outline planning permission was made by a local action group. This group did not contend that there should have been a formal EIA under the 1988 Regulations. This challenge failed at first instance and (on 21 December 1998) in the Court of Appeal. The Directive was not considered.
(5) On 25 January 1999 L&R sought the council's approval of certain matters which had been reserved for final determination when outline planning permission was granted. Details of the proposed development showed that it included (on the ground floor) 18 cinemas, a leisure area and an exhibition area; (at the gallery level) restaurants and cafés, 2 leisure areas and public toilets; (at roof level) a roof top car park with a maximum of 950 spaces, 4 viewing areas and areas enclosing plant and equipment; the addition of a mezzanine floor of 800 square metres; and changes to the construction of the external walls.
(6) Objections were raised to a number of features of the proposed development.
(7) At the council committee meeting held to decide whether the reserved matters should be approved some councillors wished a formal EIA meeting the requirements of the Directive to be carried out before these matters were approved. The council was advised that an EIA could not as a matter of law be required at the stage of approving reserved matters.
(8) This legal advice was accepted by the council. The reserved matters application was approved, and notice of approval issued on 10 May 1999.
(9) It is this approval, and the legal advice on which it was based, which is challenged in these proceedings. The applicant's challenge was dismissed by Jackson J and the Court of Appeal in the judgments referred to above.
Article 2 of the Directive provides:
"(1) 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.
(2) The environmental impact assessment may be integrated into the existing procedures for consent to projects in the Member States, or, failing this, into other procedures or into procedures to be established to comply with the aims of this Directive."
Article 1(2) of the Directive defines "development consent" as meaning "the decision of the competent authority or authorities which entitles the developer to proceed with the project." Article 4(2) of the Directive provides that projects of the classes listed in Annex II shall be made subject to an EIA where Member States consider that their characteristics so require. It is agreed that the development in issue in this case is an urban development...
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