R (on the application of Burkett) v Hammersmith and Fulham London Borough Council

Outline planning permission — Environmental information — Whether sufficient environmental information provided for development where matters of siting, design and external appearance reserved — Whether decision of planning authority vitiated by failure to state that environmental information was considered — Regulation 4(2) of and Schedule 3 to Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 — Claim dismissed The interested party obtained outline planning permission in connection with a large mixed-use development on a 32-acre site in Fulham, London. Matters of design, external appearance and landscaping were reserved for later determination. The claimant, a local resident, brought judicial review proceedings challenging the grant of permission on various grounds relating to the provision of environmental information under the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. She contended that: (i) the planning application had not contained all the information required by Schedule 3 to the regulations because design, landscaping and external appearance were reserved for later determination, and the environmental statement attached to the application had not described the development for which permission was granted; (ii) important matters were not assessed in the statement, such as traffic, which was a reserved matter, and contamination from the site; and (iii) the local planning authority had failed specifically to state in their decision that they had taken the environmental information into consideration, contrary to the requirements of regulation 4(2). Held: The claim was dismissed. In order for a planning authority to comply with their obligations under regulation 4(2), where outline planning consent was sought, they had to have, at the outline stage, sufficient details of the proposed development, its environmental impact and any proposed mitigation: Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA Civ 262 applied. It was for the local planning authority to judge the adequacy of the information provided in the statement, and to determine whether they had full and sufficient knowledge of the environmental factors to enable them to assess environmental consequences, although that decision would be reviewable on Wednesbury grounds: R v Rochdale Metropolitan Borough Council, ex parte Tew [1999] 3 PLR 74, R v Rochdale Metropolitan Borough Council, ex parte Milne (No 2) [2001] JPL 470 and R v Cornwall County Council, ex parte Hardy [2001] JPL 786 considered. The judgment was one of fact and degree in each case. In the present case, the claimant’s challenge hardly advanced beyond a contention that design, external appearance and landscaping could never be reserved. That was not so. Reservation of such matters could prevent an environmental assessment being made. In the instant case, however, the planning authority had been entitled to conclude that sufficient information had been  provided to enable them to make an assessment. A failure to comply with the requirements of regulation 4 went to the validity of a decision, as it raised an issue as to whether the requirements of the law had been met. However, where it was plain that the substantive purpose of the provisions were met, as in the present case, the court had to consider whether the failure to follow the procedural aspect of the requirement should continue to affect the validity of the decision. The court should be cautious in the degree of indulgence it extended to any failure to comply with a stipulated requirement, but in the present case, the failure to make the statement was an error and was not to be interpreted as an indication that the environmental information had not been taken into account. The requirements of regulation 4(2) had been substantially complied with and there was no prejudice to any interested party. Moreover, the claimant had only taken the point at the last minute. Robert McCracken and Saira Kabir Sheikh (instructed by Richard Buxton, of Cambridge) appeared for the claimant; Timothy Straker QC and Andrew Tabachnik (instructed by the Treasury Solicitor) appeared for the defendant; Robin Purchas QC and Joanna Clayton (instructed by Masons) appeared for the interested party. Sally Dobson, barrister