R v Bromley London Borough Council and another, ex parte Barker

Planning authority granting outline planning permission for leisure development – Applicant challenging decision to approve reserved matters – Whether planning authority erred in failing to require environmental assessment at reserved matters stage – Application dismissed The applicant lived close to Crystal Palace Park, a site owned by the local planning authority (the first respondents). The second respondent developer applied for outline planning permission for a leisure and recreational development at the site, which included a multi-screen cinema, restaurants and car parking. On 24 March 1998, the first respondents granted outline permission, subject to a number of conditions, including the requirement that details of reserved matters be approved before development commenced. Accordingly, the second respondent submitted its plans for most of the reserved matters, which the first respondents approved on 6 May 1999. A challenge to the grant of outline permission by a group of objectors (the Crystal Palace Campaign) had been dismissed by the Court of Appeal in 1998. In July 1998, Lightman J granted the applicant permission to apply for judicial review in respect of the first respondents’ decisions. The respondents applied to have that permission set aside, contending that: (i) the applicant’s application was out of time in relation to the outline permission decision of March 1998; (ii) the applicant had failed to apply for an extension of time and failed to explain the reasons for her delay; and (iii) there had not been full and frank disclosure by the applicant. The court set aside the permission in so far as it enabled the applicant to challenge the grant of outline planning permission. The substantive hearing proceeded with the applicant’s challenge to the first respondents’ decision in May 1999 to grant reserved matters approval. The applicant contended that the reserved matters approval was unlawful: (i) by its failure to consider the requirements imposed upon the first respondents by Directive 85/337/EC; and (ii) by its failure to have regard to changes in policy since the grant of outline permission, contained in a ministerial statement and a government white paper. The applicant also argued that the first respondents misdirected themselves in law, in finding that they had no power to require environmental assessment at that stage in the development consent process. Held: The application was dismissed. In respect of an urban development project, such as the present proposal, the question of whether an environmental statement was required fell to be determined at the outline planning permission stage, not at the reserved matters stage. Either an environmental statement already existed or the planning authority had to proceed on the basis that it was not required. The first respondents’ decision of 6 May 1999 was not unlawful; R v Rochdale Metropolitan Borough Council, ex parte Tew [1999] 3 PLR 74 and R v Hammersmith and Fulham London Borough Council, ex parte CPRE London Branch unreported 26 October 1999 applied. There was no need for the first respondents to have had specific regard to the ministerial statement or the white paper when considering the approval of reserved matters. Following the grant of outline permission, the developer was entitled to expect to be able to proceed with development, subject to a reasonable, detailed scheme in line with the planning permission. It was not appropriate for the first respondents to use the reserved matters stage to vary the planning permission: Kingsway Investments (Kent) Ltd v Kent County Council [1971] AC 72 applied. Robert McCracken and James Pereira (instructed by Richard Buxton, of Cambridge) appeared for the applicant; Gregory Stone QC and James Strachan (instructed by the solicitor to Bromley London Borough Council) appeared for the first respondents; Matthew Horton QC and Christopher Boyle (instructed by Lawrence Graham) appeared for the second respondent. Sarah Addenbrooke, barrister