The House of Lords (Lord Bingham, Lord Hope, Lady Hale, Lord Carswell and Lord Brown) allowed the Barker appeal following the preliminary ruling by the European Court on EIA and reserved matters applications. The Appellant no longer sought to quash the reserved matters application (which would have revived the now expired permission) and the Secretary of State and the Council agreed in the light of the ECJ’s judgments that it was appropriate for the House of Lords to declare that the 1988 EIA Regulations had not properly transposed the EIA Directive.
However, Lord Hope (who gave the only speech) gave useful guidance which made it clear that the approach in the ROchdale cases was still generally applicable subject to the need now to consider EIA in some reserved matters cases. This supports the approach taken in DCLG’s interim guidance issued following the ECJ judgments, and Lord Hope explained when further EIA might be required:
“22. It does not follow however, where planning consent for a development takes this form, that consideration must be given to the need for an EIA at each stage in the multi-consent process. …. An application for outline planning permission should be accompanied by sufficient information to enable that question to be answered and an EIA, if needed, to be obtained and considered before outline planning permission is granted. The need for an EIA at the reserved matters stage will depend on the extent to which the environmental effects have been identified at the earlier stage.
23. If sufficient information is given at the outset it ought to be possible for the authority to determine whether the EIA which is obtained at that stage will take account of all the potential environmental effects that are likely to follow as consideration of the application proceeds through the multi-stage process. Conditions designed to ensure that the project remains strictly within the scope of that assessment will minimise the risk that those effects will not be identifiable until the stage when approval is sought for reserved matters. In cases of that kind it will normally be possible for the competent authority to treat the EIA at the outline stage as sufficient for the purposes of granting a multi-stage consent for the development: R v Rochdale Metropolitan Borough Council, Ex p Milne (2001) 81 P & CR 365, para 114, per Sullivan J.
24. As the European Court said in para 48 of its judgment, however, the competent authority may be obliged in some circumstances to carry out an EIA even after outline planning permission has been granted. This is because it is not possible to eliminate entirely the possibility that it will not become apparent until a later stage in the multi-stage consent process that the project is likely to have significant effects on the environment. In that event account will have be taken of all the aspects of the project which have not yet been assessed or which have been identified for the first time as requiring an assessment. This may be because the need for an EIA was overlooked at the outline stage, or it may be because a detailed description of the proposal to the extent necessary to obtain approval of reserved matters has revealed that the development may have significant effects on the environment that were not anticipated earlier. In that event account will have to be taken of all the aspects of the project that are likely to have significant effects on the environment which have not yet been assessed or which have been identified for the first time as requiring an assessment. The flaw in the 1988 Regulations was that they did not provide for an EIA at the reserved matters stage in any circumstances.
28. In my opinion the answer to the question whether the outline planning permission and the decision to approve the reserved matters in this case constituted, as a whole, a “development consent” for the purposes of the Directive is now plain. It is conveniently set out in the court’s judgment in Commission v United Kingdom, paras 101 – 102. L & R were told in condition 01 (i) of the outline planning permission that they were not entitled to proceed with any development until details relating to the reserved matters had been submitted to and approved by the local planning authority. That being so, the decisions to grant outline planning permission and to approve the reserved matters must be considered to constitute, as a whole, a multi-stage development consent for the purposes of the Directive.
29. It is no longer possible to challenge the grant of outline planning permission on the ground than an EIA was required at the outline stage, and we lack the information that would be needed for finding as a fact that an EIA was required at the reserved matters stage. These issues have in any event been rendered academic by the lapse of planning permission for the development. But the appellant is entitled to a declaration that the advice that the officials gave to the committee that an EIA could not as a matter of law be required at the stage of approving the reserved matters was wrong. Sullivan J’s observation in R v Rochdale Metropolitan Borough Council, Ex p Tew 3 PLR 74, 97 that, if significant adverse impacts on the environment are identified at the reserved matters stage and it is then realised that mitigation measures will be inadequate, the local planning authority is powerless to prevent the development from proceeding must now be regarded as unsound. If it is likely that there will be significant effects on the environment which have not previously been identified, an EIA must be carried out at the reserved matters stage before consent is given for the development.”
The Secretary of State was the intervener in the proceedings and was represented in Luxembourg and the House of Lords by David Elvin QC and James Maurici.