Crystal Palace Campaign Case 290/03 L35

L35 - Report for the Hearing in the European Court of Justice, Case C-290/03 - 22 June 2005

Preliminary ruling: The Queen v. London Borough of Bromley, ex parte Diane Barker

REPORT FOR THE HEARING *

(Directive 85/337/CEE - Assessment of the effects of certain projects on the environment - Crystal Palace Project - Multi-stage consent procedures)

In Case C-290/03,

REFERENCE for a preliminary ruling under Article 234 CE from the House of Lords (England & Wales), made by decision of 30 June 2003, received at the Court on 3 July 2003, in the proceedings

The Queen

v

London Borough of Bromley, ex parte Diane Barker

The reference for a preliminary ruling concerns the interpretation of Article 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).
The reference was made in the course of proceedings between Ms Barker and the London Borough of Bromley ('Bromley LBC'), the local planning authority responsible for planning development, concerning the grant of planning permission to develop a leisure centre in Crystal Palace Park without an environmental impact assessment having been carried out.
I - Legal background

A - Community law
Article 1(2) of Directive 85/337 in its original version defines 'development consent' as meaning 'the decision of the competent authority or authorities which entitles the developer to proceed with the project'.
Article 2(1) of that 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.'
Article 4 of that Directive provides:

'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.
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.'
Point 10(b) of Annex II to that directive refers to 'Urban-development projects'.
B - National legislation
In the United Kingdom the principal legal instrument relating to land planning is the Town and Country Planning Act 1990, which codified the original Town and Country Planning Act 1947 and which lays down general rules with regard to the granting, amendment and withdrawal of planning consent. Detailed rules for implementing that Act are contained in the Town and Country Planning (General Development Procedure) Order 1995 and the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988.
Grant of development consent
Planning permission is required for the carrying out of any development under section 57(1) of the Town and Country Planning Act 1990, which includes in particular 'building ... or other operations in, on, over or under land ...', (section 55 of the Town and Country Planning Act 1990).
Planning permission may be granted in a variety of forms, including in particular outline permission.
Section 92(1) of the Town and Country Planning Act 1990 provides that 'outline planning permission' is '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")'.
Article 1(2) of the Town and Country Planning Order 1995 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'.
However, in practice other matters are deferred for subsequent decision by the imposition of conditions requiring approval.
Under the Town and Country Planning Regulations 1988 certain projects must be subject to an environmental impact assessment before consent is granted.
Under Regulation No 4 of those Regulations, any Schedule 2 application must be subject to an environmental impact assessment.
A 'Schedule 2 application' is 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, as determined in each case by the competent authority.
The classes of projects listed in Annex II to Directive 85/337, including urban development projects in particular, are set out in Schedule 2.
Revocation or amendment of permission
Under section 73 of the Town and Country Planning Act 1990, an application for an amendment to an existing permission is effectively an application for a new planning permission and, if granted, the amendment takes effect as such.
Lastly, under section 97 of the Town and Country Planning Act 1990, in certain circumstances the competent authority has power to revoke or modify a planning permission.
C - Implementing measures
Circular 15/88 issued by the Secretary of State for the Environment provides guidance with regard to assessing the environmental impact of projects of more than local importance, projects in sensitive locations and projects with particularly complex and potentially adverse effects.
That circular lists indicative criteria and thresholds. Paragraph 16 of Appendix A to the circular states that an environmental impact assessment may be required where:
- 'the site area of the scheme is more than five hectares in an urbanised area; or
- 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
- the development would provide a total of more than 10,000 square metres (gross) of shops, offices or other commercial uses.'
The circular also lays down the requirements with regard to information to be supplied by the parties. Paragraph 42 provides that '[t]he 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'.
That legislation has been supplemented by the following principles, which have been established by the national courts in order to ensure its compatibility with Directive 85/337 (R. v Rochdale BC, ex parte Tew [1999] 3 P.L.R. 74; R. v Rochdale BC, ex parte Milne [2001] 81 P. & C.R. 365.; R. v Cornwall CC, ex parte Hardy [2001] Env. L.R. 26; R. v LB of Hammersmith & Fulham, ex parte Trustees of the CPRE [2000] Env. L.R. 532; Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA Civ 262)
Under that case-law, (i) the application for permission must acknowledge the need for project evolution over time, (ii) the parameters of evolution must be clearly defined, (iii) the environmental impact assessment must have taken account of the likely significant effects of such a flexible project, (iv) conditions must ensure that the evolving project stays within the envisaged parameters, and (v) the planning authorities must have decided that the difficulties and uncertainties are not such that the degree of flexibility is unacceptable in terms of its potential effect on the environment (full knowledge). To that end, the competent authorities must require the developer to provide sufficient information to enable them to ascertain whether or not an environmental impact assessment is required.
Where the competent authority fails to carry out an environmental impact assessment at the initial stage of granting outline planning permission, an interested third party may seek judicial review before the national courts, which may, if the application is successful, quash the planning permission.
II - The main proceedings and the questions referred for a preliminary ruling
Ms Barker lives in the vicinity of Crystal Palace Park.
Crystal Palace Park is Metropolitan Open Land listed as a Grade II Historic Park on the statutory register kept by English Heritage. Part of the site at issue relating to the access and adjoining land falls within the Crystal Palace Park Conservation Area.
On 4 April 1997 London & Regional Properties Ltd ('L&R') applied for outline planning permission for the development of a leisure centre in Crystal Palace Park ('the Crystal Palace Project').
After consideration and taking into account a number of reports and additional information, Bromley LBC concluded that an environmental impact assessment was not required. Ms Barker challenges that assertion, as she feels it is doubtful that Bromley LBC considered the need for an assessment and came to a clear view in that regard.
On 24 March 1998 Bromley LBC granted outline planning permission, leaving certain conditions outstanding with regard to siting, design, external appearance, access, landscaping, building materials, car parking, noise insulation and lighting. The planning permission was accompanied by illustrative plans and documents regarding some of those matters. Details of such matters were to be submitted to and approved by Bromley LBC before any development was commenced.
On 25 January 1999 L&R sought Bromley LBC's approval of certain matters subject to conditions, which had been reserved for final determination. They showed that the Crystal Palace Project included (i) on the ground floor, eighteen 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 top level, a car park with a maximum of 950 spaces, 4 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.
Those matters fell wholly within the parameters of the outline permission already granted.
However, at the meeting of Bromley LBC held to decide whether the reserved matters should be approved, some councillors expressed the view that an environmental impact assessment should be carried out. Bromley LBC was advised, however, that as a matter of domestic law an assessment could be carried out only at the initial outline planning permission stage.
Bromley LBC issued notice of approval on 10 May 1999.
Ms Barker challenged, initially at first instance and subsequently before the Court of Appeal, the notice of approval, both times unsuccessfully.
As it entertained doubts as to the compatibility with Community law of the United Kingdom system whereby an environmental impact assessment can be carried out only at the outline planning permission stage and not at the later approval of reserved matters or conditions stage ('the system at issue in the main proceedings'), the House of Lords decided to stay proceedings pending a preliminary ruling from the Court of Justice on the following questions:

'(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) exclusively a matter for the national court applying national law?
(2) Does [Directive 85/337] require an 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 environmental impact assessment 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 Directive 85/337)?

(3) In circumstances where:

(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 environmental impact assessment is required for purposes of [Directive 85/337]; and

(b) the competent authority then determines that it is unnecessary to carry out an environmental impact assessment 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 [Directive 85/337], preclude a competent authority from requiring that an environmental impact assessment be carried out at a later stage of the planning process?'
In answer to the letter from the Court Registry of 15 January 2004 the House of Lords stated that it wished the reference for a preliminary ruling to continue even in the light of the judgment of 7 January 2004 in Case C-201/02 Wells [2004] ECR I-723.
III - Brief summary of the observations lodged with the Court

A - The three questions: the obligation to conduct an environmental impact assessment (Article 2(1), in conjunction with Articles 4(2) and 1(2) of Directive 85/337)
By its three questions, the national court is asking in essence whether Article 2(1), in conjunction with Article 4(2), of Directive 85/337 should be interpreted as meaning that, in the context of the application of provisions such as section 92 of the Town and Country Planning Act 1990, the decisions taken by the competent authorities comprise, together, 'development consent' within the meaning of Article 1(2) of that directive, so that the competent authorities have, where appropriate, an obligation to carry out an environmental impact assessment, even after outline planning permission has been granted, at the approval of reserved matters or conditions stage.
1. Classification of a measure as 'development consent' within the meaning of Article 1(2) of Directive 85/337
Ms Barker and the Commission contend that approval of reserved matters or conditions must be regarded as being part of 'development consent' within the meaning of the definition given in Article 1(2) of Directive 85/337.
In their view, although Member States may indeed include assessment of the effects of a project on the environment in their existing consent procedures, the term 'development consent' within the meaning of Article 1(2) of Directive 85/337 is nonetheless a term of Community law which requires an autonomous and uniform interpretation (see Case C-435/97 WWF [1999] ECR I-5613, paragraphs 58 to 60, and Case C-287/98 Linster [2000] ECR I-6917, paragraph 43, and the Opinion of Advocate General Léger in Wells, cited above, points 34 and 36 to 39).
According to the definition given in Article 1(2) of Directive 85/337, 'development consent' is the decision which entitles the developer to proceed with the project.
Read in the light of the essential objective of Directive 85/337 (see judgments in Case C-72/95 Kraaijeveld and Others [1996] ECR I-5403, paragraphs 31, 39 and 50; WWF, cited above, paragraph 45, and Linster, cited above, paragraph 52, and the Opinion of Advocate General Léger in Wells, cited above, point 35) and of Article 174(2) EC (Case C-9/00 Palin Granit [2002] ECR I-3533, paragraph 23) the term must be interpreted as including approval of reserved matters or conditions.
Bromley LBC and the United Kingdom Government contend that the identification of a measure as being 'development consent' within the meaning of Article 1(2) of Directive 85/337 is solely a matter of national law (Case C-81/96 Gedeputeerde Staten van Noord-Holland [1998] ECR I-3923, paragraph 20) and that, under United Kingdom law, approval of reserved matters or conditions does not constitute 'development consent' according to the definition provided by that provision.
The French Government adopts a mid-way position, asserting that in principle the identification of a measure as being 'development consent' within the meaning of Article 1(2) of Directive 85/337 is solely a matter of national law (Gedeputeerde Staten van Noord-Holland, cited above, paragraph 20), but that in its view, under United Kingdom law, approval of reserved matters or conditions should be regarded as 'development consent' as defined in that provision.
2. The stage at which the environmental impact assessment must be conducted
Ms Barker and the Commission contend that Directive 85/337 requires an environmental impact assessment to be carried out (again) if it becomes apparent at the approval of reserved matters or conditions stage that the project is likely to have significant effects on the environment; that is a comprehensive assessment covering all aspects of the project which have not so far been assessed or which require a new assessment.
In their view, Article 2(1) of Directive 85/337 provides that projects likely to have significant environmental effects should be subject to an assessment 'before consent is given'. It is apparent from the proposed answer to the first question that, in the context of a multi-stage approval procedure such as that at issue in the main proceedings, the decision approving reserved matters or conditions forms part of 'development consent' within the meaning of Article 1(2) of Directive 85/337.
Lastly, Ms Barker adds that the judicial practice by which the national courts seek to make national law compatible with Directive 85/337 is too artificial and complicated to overcome the incorrect transposition of the provisions of that directive into domestic law (Case 38/87 Commission v Greece [1988] ECR 4415, paragraph 9, and Case C-58/90 Commission v Italy [1991] ECR I-4193, paragraph 12).
The French Government, whilst supporting in principle the outcome proposed by Ms Barker and the Commission, considers that, at the approval of reserved matters or conditions stage, the assessment need relate only to the aspects of the project concerning such matters. It appears to assume the existence of two 'development consents' within the meaning of Article 1(2) of Directive 85/337.
Bromley LBC and the United Kingdom Government contend that Directive 85/337 does not require an environmental impact assessment to be carried out if it appears at the approval of reserved matters or conditions stage that the project is likely to have significant effects on the environment.
On one hand, Article 249 EC provides that a directive is binding, as to the result to be achieved, upon each Member State to which it is addressed, but leaves to the national authorities the choice of form and methods.
On the other hand, Article 2(1) of Directive 85/337 makes it clear that projects likely to have significant effects on the environment must be subject to an assessment 'before consent is given'. Under national law, as it appears from the proposed answer to the first question, it is the grant of outline planning permission which constitutes 'development consent' within the meaning of Article 1(2) of Directive 85/337 (and not the subsequent approval of reserved matters or conditions).
Moreover, the first recital in the preamble to Directive 85/337 affirms the need to take effects on the environment into account at the earliest possible stage in all the technical planning and decision-making processes.
Thus, in view of the rigour of the approach of the United Kingdom courts to this matter, the objectives of Directive 85/337 are ensured most effectively if the environmental impact assessment is conducted when outline consent is granted.
Lastly, Bromley LBC and the United Kingdom Government add that the consent procedure in Wells, cited above, was different and very specific.
3. The question whether the Crystal Palace Project is likely to have significant effects on the environment
Ms Barker and the Commission contend that the final layout of the Crystal Palace Project was likely to have significant effects on the environment in terms of siting and means of access and that it should therefore have been subject to an assessment with regard to its impact.
Bromley LBC and the United Kingdom Government contend, however, that since the Crystal Palace Project was not likely to have significant effects on the environment it did not need to be the subject of an assessment with regard to its impact on the environment.
Although in the context of projects falling within Article 4(2) of Directive 85/337 the competent authorities are required to give prior consideration to whether such an assessment is needed, they have broad discretion when so doing. In its prior consideration Bromley LBC reached its conclusion following a comprehensive consideration of all the relevant facts.

P. Jann
Judge Rapporteur

* Language of the case: English.

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