UK: ECJ Ruling - Environmental Impact Assessments Can Now be Required at Reserved Matters Stage

The European Court of Justice has this month made a ruling regarding the need for Environmental Impact Assessments (EIA) when submitting a Reserved Matters application. A Local Planning Authority (LPA) may grant outline planning permission subject to a condition requiring various ‘Reserved Matters’ to be submitted and approved by the LPA at a later date. In brief, whilst it is preferable for EIA to be undertaken at the outline permission stage, if the need for EIA is not identified until the reserved matters stage, EIA should be undertaken at the later stage and should assess the whole project.

The ability to implement an outline planning permission may, therefore, be brought into question where an EIA was not carried out at the outline planning permission stage. This will have a clear impact on programming and costs for clients (note, that in this particular case, the ECJ's ruling was issued 9 years after the outline planning application was made, 8 years after the outline permission was granted, and 7 years after the Reserved Matters approval was issued).

The ECJ was answering questions posed by the House of Lords in Barker v London Borough of Bromley. When granting outline planning permission for a leisure complex at Crystal Palace, the London Borough of Bromley (LBB) concluded that no EIA was necessary. At the Reserved Matters stage, LBB expressed the view that an EIA should have been submitted with the Reserved Matters application. However, under current national law a Reserved Matters application does not constitute a ‘planning application’ and is, therefore, outside the scope of the UK EIA Regulations. Accordingly, LBB approved the Reserved Matters without an EIA. This decision was judicially reviewed and on appeal to the House of Lords, the House of Lords asked the ECJ whether the UK had incorrectly transposed the EIA Directive into national law.

The ECJ ruled that where the consent involves a two stage process - a ‘principle decision’ (i.e. where the principle of development is established) and an ‘implementing decision’ (i.e. where detailed matters are approved) - the effects which a project may have on the environment must be identified and assessed at the time of the procedure relating to the principle decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the EIA should be carried out in the course of that procedure. This ruling means that an applicant may be required to carry out an EIA even after the grant of the outline planning permission and the EIA should assess the whole project.

If the ECJ's ruling in Barker v London Borough of Bromley is followed in every instance, the ability to implement an outline planning permission may be challenged on EIA grounds months or even years after it has been granted via a challenge to a Reserved Matters approval.

In light of this ruling it is recommended that holders of outline planning permissions, where either no EIA was submitted at the ‘principle decision’ or where the permission is old, should consider playing it safe and submit an EIA for the whole project. Clearly commercial considerations will come into play, and so at the very least, it is recommended that prior to submitting the Reserved Matters application a screening opinion is obtained from the LPA.