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HOUSE OF LORDS

SESSION 2002-03
45th REPORT
on appeal from: [2001] EWCA Civ 1766

APPELLATE COMMITTEE

REGINA v. LONDON BOROUGH OF BROMLEY (RESPONDENTS) EX PARTE BARKER (FC) (APPELLANT)

REQUEST FOR A PRELIMINARY RULING

BY THE COURT OF JUSTICE OF THE

EUROPEAN COMMUNITIES

REPORT

Ordered to be printed 30 June 2003

LONDON

(HL Paper 131)

ORDERS OF REFERENCE, ETC.

DIE MERCURII 20o JUNII 2001

Appellate Committees—Two Appellate Committees were appointed pursuant to Standing Order.

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DIE JOVIS 24o OCTOBRIS 2002

    Regina v. London Borough of Bromley (Respondents) ex parte Barker (FC) (Appellant) (England)—The appeal of Diane Barker was presented and it was ordered that in accordance with Standing Order VI the statement and appendix thereto be lodged on or before 5th December next (lodged 22nd October).

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DIE MERCURII 13o NOVEMBRIS 2002

    Appellate Committees—Two Appellate Committees were appointed pursuant to Standing Order.

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DIE JOVIS 5o DECEMBRIS 2002

    Regina v. London Borough of Bromley (Respondents) ex parte Barker (FC) (Appellant)—The petition of the appellant praying that the time for lodging the statement and appendix and setting down the cause for hearing might be extended to 16th January next (the agents for the respondents consenting thereto) was presented; and it was ordered as prayed.

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DIE JOVIS 16o JANUARII 2003

    Regina v. London Borough of Bromley (Respondents) ex parte Barker (FC) (Appellant)—The appeal was set down for hearing and referred to an Appellate Committee.

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DIE JOVIS 12o JUNII 2003

    Regina v. London Borough of Bromley (Respondents) ex parte Barker (FC) (Appellant)—The petition of the First Secretary of State praying for leave to intervene in the said appeal was presented and referred to an Appeal Committee.

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MINUTES OF PROCEEDINGS

DIE LUNAE 16o JUNII 2003

    Present:

    L. Bingham of Cornhill

    L. Steyn

    L. Hope of Craighead

    L. Hutton

    L. Scott of Foscote

    The Lord Bingham of Cornhill in the Chair.

    The Orders of Reference are read.

    The Committee deliberate.

    Counsel and Parties are called in.

    Mr R McCracken QC and Mr J Pereira appear for the appellant.

    Mr T Straker QC and Mr J Strachan appear for the respondents.

    Mr P Sales and Mr J Maurici appear for petitioner for leave to intervene.

    Mr Sales heard to apply to the Committee, as an Appeal Committee, for leave to intervene.

    Mr Straker heard.

    Mr McCracken heard.

    Mr Sales further heard.

    Bar cleared; and the Committee deliberate.

    Parties recalled.

    Mr McCracken heard.

    Mr Straker heard.

    Mr Sales heard.

    Mr McCracken further heard.

    Bar cleared; and the Committee deliberate.

    Parties recalled. The Lord in the Chair heard to say that the Committee, as an Appeal Committee, would recommend to the House that the First Secretary of State be granted leave to intervene; and that the Committee wished to recommend a reference to the Court of Justice of the European Communities. Parties instructed to draft questions for such a reference.

    In part heard; and adjourned until tomorrow.

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DIE MARTIS 17o JUNII 2003

    Present:

    L. Bingham of Cornhill

    L. Steyn

    L. Hope of Craighead

    L. Hutton

    L. Scott of Foscote

    The Lord Bingham of Cornhill in the Chair.

    The Order of Adjournment is read.

    The proceedings of yesterday are read.

    The Committee deliberate.

    Counsel and Parties are again called in.

    Mr McCracken heard.

    Mr Straker heard.

    Mr Sales heard.

    Mr McCracken further heard.

    The Lord in the Chair heard to say that the Committee will recommend to the House that the cause be referrred to the Court of Justice of the European Communities for a preliminary ruling under Article 234 of the Treaty establishing the European Communities.

    Bar cleared; and the Committee deliberate.

    A draft Report is laid before the Committee by the Lord Bingham of Cornhill.

    The Report is considered and agreed to, nemine dissentiente.

    Ordered, That the Lord Bingham of Cornhill do make the Report to the House.

    Ordered, That the Committee be adjourned sine die.

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FORTY-FIFTH REPORT
from the Appellate Committee

30 June 2003

    Regina v. London Borough of Bromley (Respondents) ex parte Barker (FC) (Appellant)

    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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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 project and so falls within one of the classes listed in Annex II.

8. Since 1950 there has existed in England and Wales a procedure for granting outline planning permission, which may be granted subject to a condition or conditions specifying reserved matters for the local planning authority's subsequent approval. The procedure is now governed by the Town and Country Planning (General Development Procedure) Order 1995 (SI 1995/419). The grant of outline planning permission establishes the entitlement of the developer in principle to carry out the proposed development and entitles him to expect that his proposals concerning the reserved matters, if reasonable and in line with the outline scheme, will be approved.

9. In regulation 2(1) of the 1988 Regulations it is provided that

    "'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".

Schedule 2 to the 1988 Regulations corresponds with Annex II to the Directive. As an urban development project the development proposed in this case fell within Schedule 2. It was not exempt development. If the development would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location, then it would (at whichever stage was relevant) have been a Schedule 2 application.

10. The 1988 Regulations were replaced by the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999/293), but their effect is not different in respects material to this reference.

11. The arguments of the respective parties are understood, in very bare outline, to be as follows:

    (1) The applicant contends that the definition of development consent in article 1(2) of the Directive ("the decision of the competent authority or authorities which entitles the developer to proceed with the project") has an autonomous meaning for purposes of the Directive to which national laws and national courts must give effect, bearing in mind the requirement in article 2(1) of the Directive that an EIA shall be carried out before consent is given to any development project likely to have significant effects on the environment by virtue inter alia of its nature, size or location. A decision on reserved matters may form part of the process of granting the development consent which entitles the developer to proceed. An application for approval of reserved matters may raise environmental issues which should properly be the subject of an EIA at that stage, and national law may not, consistently with the Directive, preclude the requirement of an EIA at that stage. Member States may not, consistently with the Directive, prohibit the competent authority from considering and, if so advised, requiring an EIA at any time before the grant of final permission to proceed if the likelihood of significant environmental effects becomes apparent.
    (2) The council contends that domestic planning law has for many years provided for a single decision on the grant of planning permission, at which stage all material matters have to be taken into account. A grant of outline planning permission enables a development to proceed, whether or not conditions requiring approval of reserved matters are attached to the grant. Identification of "the decision of the competent authority or authorities which entitles the developer to proceed with the project" is exclusively a matter for the national court. A decision on reserved matters cannot, in England and Wales, be the decision which entitles the developer to proceed, because the grant of outline planning permission is the final decision which so entitles the developer. It makes no difference that the grant of outline planning permission might have been successfully challenged at an earlier stage on the ground that an EIA should have been required.
    (3) The First Secretary of State generally supports the council. He contends that the question of when development consent is granted for the purposes of the Directive is a question of national law. On the proper interpretation of domestic law the approval of reserved matters is not a development consent for the purposes of the Directive in relation to projects for which an outline planning permission has been granted. The Directive permits Member States to require fulfilment of the EIA obligation under the Directive at an early stage of the planning process, as the United Kingdom has done. The Directive does not require a staged assessment of environmental impact, and approval of reserved matters is not a stage of the development consent procedure at which the question of requiring an EIA falls to be re-considered.

12. The preliminary ruling of the Court of Justice should accordingly be requested on the following questions on which a decision is necessary to enable the House of Lords to give judgment:

    (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?
    (2) Does the Directive require an EIA 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:
      (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
      (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?

 
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