England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 November 2004

Mr Justice Richards :

1. The claimant challenges a decision of the defendant council dated 24 May 2004 granting reserved matters approval pursuant to an outline planning permission for leisure development on part of an area of land known as the EuroKent Business Park, Ramsgate. The claimant's essential case is that the council's decision not to require an environmental impact assessment (“EIA”) of the reserved matters was unlawful. The matter came before me as a renewed permission application. In the event, as explained below, I granted permission and treated the hearing as the substantive hearing, reserving my judgment at the close of the hearing.

The Facts

2. On 18 June 1997 outline planning permission was granted for a business park on a 53.65 hectare site. More specifically, the permission covered mixed use development for business and commerce, comprising use classes A2 (financial and professional premises in excess of 930 sq.m.), B1 (business), B2 (general industrial) and B8 (storage and distribution), together with recreational use associated with a particular recreation ground. The permission was a bare outline permission.
3. No EIA was carried out in relation to the proposed development. The claimant invites an inference that no consideration was given to the need for an EIA, but the evidence goes no further than to establish that no EIA was provided with the planning application, the council did not advise that one was required, and there is nothing on record as to what if any consideration was given to the matter.
4. There was, however, an officers' report recommending grant of the outline planning permission. That report pointed out that the principle of the development had been accepted through the development plan process. This was a reference to the fact that the site had been allocated for class B1, B2 and B8 uses in the Isle of Thanet Local Plan, adopted in April 1998 following consideration of objections to the relevant policy and a recommendation by the local plan inspector. The report also gave detailed consideration to the proposed development and its effects.
5. On 24 January 2002 outline planning permission was granted for leisure development on a 3.54 hectare site comprising plot 30 of the business park site. The permission was for “development of leisure units, including multiplex cinema, leisure facilities and fitness suite (use class D2); restaurant and drive-through restaurant (use class A3), together with access, car parking, servicing, landscaping and associated works”. The application was accompanied by illustrative layout plans indicating that the proposed development might comprise a multiplex cinema in a 3,066 sq.m. unit, a health and fitness club in a 2,323 sq.m. unit, a further leisure unit of the same size, a destination restaurant of 325 sq.m., and a fast food or drive-through restaurant of 232 sq.m.. The grant of permission was not, however, tied to those plans. All details of siting, design, external appearance, means of access and landscaping were left to be dealt with by reserved matters approval.
6. The council had previously decided that the application for outline planning permission did not need to be accompanied by an EIA. A screening decision to that effect was taken on 27 June 2000. The reasons given were as follows:

“In accordance with the requirements of the Environmental Impact Assessment Regulations, together with the accompanying Circular 2/99, regard has been had to the planning history of the site, the scale and nature of the proposed use and relationship to the surroundings.

The application site, as part of the EuroKent Business Park, currently enjoys the benefit of outline planning consent for industrial/commercial development, falling within Use Classes B1, B2, B8 and A2. Therefore, the size of the application site, coupled with the planning history, would mean that the proposed leisure development would not be on a significantly greater scale, of a different nature, or produce a significant, additional, environmental impact above that which would be generated by the approved use for the site.”

7. The application for reserved matters approval under the leisure outline planning permission was submitted on 1 April 2004. The development was described as “erection of a detached, multiplex cinema (use class D2), three detached restaurants (use class A3) and a detached 3,716 sq.m. leisure unit (use class D2) together with associated car parking, servicing, vehicle access and landscaping …”. On 19 May 2004 a screening decision was taken by the council to the effect that no EIA was needed. On 24 May the council issued its decision approving the reserved matters application: that is the decision now under challenge. Both the EIA screening decision and the approval of reserved matters were dealt with by officers under delegated authority, though with the concurrence of the chairman of the relevant committee.
8. The reasons for the decision not to require an EIA were expressed as follows:

“The Council, as Local Planning Authority, has now had the opportunity to give consideration to the nature and form of the development and, in accordance with the requirements of the above Regulations, can confirm that the development does not fall within Schedule 1 of the Regulations. However, as an infrastructure project, it falls within Schedule 2 in respect of which the Council is required to consider whether an Environmental Impact Assessment (EIA) is required to be submitted, as the area of the site exceeds 0.5 hectares.

Under the circumstances, the Council is required to have regard, firstly, to the characteristics of the development. In this respect, the Council notes that this application constitutes a further, reserved matters submission pursuant to an extant outline planning consent for those uses specified within the application the subject of this screening; the land was originally consented for business park purposes; the site area is only some 3.54 hectares and the overall floorspace of the development is less than 10,000 sq m. As such, this proposal would not be on a significantly greater scale or of such a different nature to require the submission of an EIA, taking into account the likely use of natural resources; the production of waste; potential for pollution; likely nuisances and the risk of accidents. Finally, the Council considers that accumulation with other development would not alter this situation, particularly in view of the fact that the original business park planning consent and the outline approval for the adjoining Westwood Cross development were both in place at the time of approval of the outline consent to which these reserved matters relate.

Turning now to the location of the development the Council considers that the development site is not located within an environmentally sensitive or densely populated area. Furthermore, the surroundings of the site are not considered to comprise a landscape of historical, cultural or archaeological significance.

Finally, with regard to the characteristics of the potential impact of the development, the area likely to be affected by the development would be local; the proposal is not of a trans-frontier nature and the impact will not be of a particular magnitude or complexity. In particular, given the extant planning consents, it is considered that the activity associated with the development, including traffic levels, will not be sufficient to justify the submission of an EIA, having regard to the duration, frequency and reversibility of the impact.

In conclusion, the Council, as Local Planning Authority, therefore confirms that this development does not require the submission of an EIA in accordance with the terms of the above Regulations.

I would further confirm that, in reaching the above decision, the Council is cognisant of the facts that an EIA was determined not to be required in respect of the outline consent to which these reserved matters relate and that, following referral, the outline planning application was not called in for determination by the Secretary of State.”

9. The first interested party, Rosefarm Estates PLC, was the applicant for the leisure outline planning permission and reserved matters approval. The second interested party, Rank Group PLC, has a commercial interest in the proposed development of the site. The claimant is a commercial competitor of the second interested party and has an interest (though at present falling short of a legal interest) in the Westwood Cross development to which reference is made in the council's reasons for its decision not to require an EIA. One of the matters raised by the interested parties is whether the claimant has a sufficient interest to challenge the decision in proceedings for judicial review. Because of the conclusion I have reached on the substantive issues in the case, I do not need to give any further consideration to that matter.

Legislative Framework

10. The EIA regime is contained within Council Directive 85/337/EEC, as amended, which is implemented by the Town and Country Planning (Environmental Impact Assessment) Regulations 1999. In summary, the Directive requires that before the grant of “development consent” for a project likely to have significant effects on the environment, there must be an assessment of those effects. “Development consent” is defined as the decision of the competent authority which entitles the developer to proceed with the project. For projects falling within annex I to the Directive (schedule 1 to the 1999 Regulations), an EIA is always required. For projects falling within annex II (schedule 2 to the 1999 Regulations), it is for the competent authority to determine whether the project is likely to have significant effects on the environment so as to require an EIA. All the developments relevant to this case fell within the latter category, so that it was for the council to decide whether such developments were likely to have significant environmental effects. Such a decision is subject to challenge only on conventional Wednesbury principles: see R (Jones) v Mansfield Council [2003] EWCA CIV 1408 at paragraphs 14-18.
11. Under the 1999 Regulations, in the case of an outline planning permission the question whether an EIA is required has to be considered only at the outline planning permission stage. There is no power to consider the need for an EIA at the later stage when an approval of reserved matters is sought. Thus the 1999 Regulations treat the grant of outline planning permission as the “development consent” for the purposes of the Directive. Whether that is compatible with the Directive is, however, the subject of current debate. In R v London Borough of Bromley, ex parte Barker, the House of Lords has referred a number of questions on the subject to the European Court of Justice under article 234 of the EC Treaty. In Barker outline planning permission had been granted without requiring an EIA. When an application for approval of reserved matter was subsequently being considered, the council was advised that an EIA could not as a matter of law be required at the reserved matters stage. That view was challenged, essentially on the basis that the development cannot proceed until approval of reserved matters is given, and the decision to approve reserved matters therefore falls within the definition of development consent for the purposes of the Directive. The challenge was unsuccessful in the lower courts, but the issue was considered by the House of Lords to be sufficiently unclear to require a reference. The questions asked in the reference include:

“(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 …?

(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 the 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?”

12. While the reference in Barker was pending, the European Court of Justice gave judgement in a case that had been the subject of an earlier reference, R (on the application of Wells) v. Secretary of State for Transport, Local Government and the Regions [2004] 1 CMLR 31. That case concerned the regime under the Planning and Compensation Act 1991 in relation to old mining permissions granted long before the EIA regime came into force. The 1991 Act laid down a procedure for the registration of such permissions and the determination of new conditions to which the permissions were to be subject. The conditions could provide in turn for matters to be reserved for subsequent approval. The court held that the question whether a decision determining new conditions and a decision approving matters reserved by the new conditions constituted development consent within the meaning of the Directive was a question of EC law and that such decisions must be considered to constitute, as a whole, a new development consent within the meaning of the Directive. The court went on to consider when, in the context of a consent procedure comprising several stages, the environmental effects must be considered. It held:

“51. According to the first recital in the preamble to the directive, the competent authority is to take account of the environmental effects of the project in question “at the earliest possible stage” in the decision-making process.

52. Accordingly, where national law provides that the consent procedure is to be carried out in several stages, one involving a principal decision and the other involving an implementing decision which cannot extend beyond the parameters set by the principal decision, the effects which the project may have on the environment must be identified and assessed at the time of the procedure relating to the principal decision. It is only if those effects are not identifiable until the time of the procedure relating to the implementing decision that the assessment should be carried out in the course of that procedure.

53. … In a consent procedure comprising several stages, that assessment must, in principle, be carried out as soon as it is possible to identify and assess all the effects which the project may have on the environment.”

13. In Wells the question whether an EIA was needed had not been considered either at the stage of determining new conditions or at the stage of approving matters reserved by the new conditions. A further question raised was whether it was incumbent on the Secretary of State in those circumstances to exercise powers to revoke or modify the planning permission in order to remedy the failure to consider the question of an EIA during the development consent procedure. In relation to that issue, the court held:

“64. … [It] is clear from settled case law that under the principle of co-operation in good faith laid down in Art. 10 EC the Member States are required to nullify the unlawful consequences of a breach of Community law. Such an obligation is owed, within the sphere of its competence, by every organ of the Member State concerned.

65. Thus, it is for the competent authorities of a Member State to take, within the sphere of their competence, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment. Such particular measures include, subject to the limits laid down by the principle of procedural autonomy of member States, the revocation or suspension of a consent already granted, in order to carry out an assessment of the environmental effects of the project in question as provided for by Directive 85/337.

66. The Member State is likewise required to make good any harm caused by the failure to carry out an environmental impact assessment.

67. The detailed procedural rules applicable are a matter for the domestic legal order of each Member State, under the principle of procedural autonomy of the Member States, provided that they are not less favourable than those governing similar domestic situations (principle of equivalence) and that they do not render impossible in practice or excessively difficult the exercise of rights conferred by the Community legal order (principle of effectiveness).

68. So far as the main proceedings are concerned, if the working of Conygar Quarry should have been subject to an assessment of its environmental effects in accordance with the requirements of Directive 85/337, the competent authorities are obliged to take all general or particular measures for remedying the failure to carry out such an assessment.

69. In that regard, it is for the national court to determine whether it is possible under domestic law for a consent already granted to be revoked or suspended in order to subject the project in question to an assessment of its environmental effects, in accordance with the requirements of Directive 85/337, or alternatively, if the individual so agrees, whether it is possible for the latter to claim compensation for the harm suffered.

70. The answer to the third question must therefore be that under Art. 10 EC the competent authorities are obliged to take, within the sphere of their competence, all general or particular measures for remedying the failure to carry out an assessment of the environmental effects of a project as provided for in Art.2(1) of Directive 85/337.”

14. I should mention that following the judgment in Wells, the House of Lords decided to maintain the article 234 reference it had made in Barker.
15. It follows that it is an open question whether, in the case of an outline planning permission, the need for an EIA falls to be considered only at the outline planning permission stage or whether it can and should be considered in any circumstances at the reserved matters stage. That was the uncertain climate within which the council in this case decided to consider whether an EIA was needed at the reserved matters stage. The claimant understandably makes no complaint about the fact that the need for an EIA was considered. Its contention is that the actual consideration given to the question was flawed so that the decision not to require an EIA at the reserved matters stage was unlawful.

The Claimant's Submissions

16. The claimant's case in essence is that the council erred in law when making its decision, by taking into account (i) the fact that outline planning permission had originally been granted for a business park and (ii) the fact that no EIA had been considered necessary for the leisure outline planning permission. Consideration (i) is said to have been unlawful because no determination was made as to whether the business park development was itself likely to have significant environmental effects. Consideration (ii) is said to have been unlawful because the decision not to require an EIA in relation to the leisure outline planning permission was itself unlawful. In any event it is submitted that consideration (i) rather than (ii) lay at the heart of the reserved matters decision.
17. Looking at the detailed reasons given for not requiring an EIA at the reserved matters stage, Mr Phillips QC submits that the business park permission was used by the council as a benchmark in considering the issue. This led directly to the conclusion that the reserved matters approval “would not be on a significantly greater scale or of such a different nature to require the submission of EIA …” and that “the activity associated with the development, including traffic levels, will not be sufficient to justify the submission of an EIA”. In the absence of any evidence that consideration had ever been given to whether the business park was likely to have significant environmental effects, the comparison between the business park outline planning permission and the reserved matters approval was inapt. Since the council had not considered whether the business park development required an EIA, it could not use that development as a benchmark to conclude that the reserved matters approval did not require an EIA. Had the council given consideration to the impact likely to arise from the business park development, it would inevitably have concluded that significant environmental effects were likely, given the scale of that development. In any event it is sufficient for the purposes of the claimant's submissions that a planning authority acting reasonably could have so concluded: see Berkeley v. Secretary of State for the Environment [2001] 2 AC 603 at 615.
18. As regards the leisure outline planning permission, the decision not to require an EIA also hinged on a comparison with the business park development and is therefore liable to the same criticism that no consideration was ever given to whether that development was itself likely to give rise to significant environmental effects. Moreover the leisure outline planning permission was an outline permission with almost all matters reserved. The application was for development of indeterminate scale and the permission was not constrained by conditions which could ensure that significant environmental effects were not likely to occur. The council therefore had insufficient information before it at that stage to reach a lawful decision that significant environmental effects were not likely. In support of that proposition Mr Phillips relies on passages in R v. Rochdale Metropolitan Borough Council, ex parte Tew [1999] 3 PLR 74 and Smith v Secretary of State for the Environment, Transport and the Regions [2003] EWCA Civ 262 to the effect that, in order to give lawful consideration to the question of an EIA at the outline planning permission stage, a planning authority must have sufficient details of the proposed development, of any impact on the environment, and of any mitigating measures. A further, and I think alternative, submission is that the leisure outline planning permission was wide enough to embrace development likely to have significant environmental effects and that the council's conclusion that significant environmental effects were not likely was Wednesbury unreasonable.
19. Mr Phillips seeks to counter in a number of ways the submissions made on behalf of the council and the interested parties, considered below, to the effect that the council was entitled to rely on the validity of the earlier decisions. He submits first that it was not in fact the council's approach to shelter behind the decisions previously made. Had it sought to shelter behind the formal validity of the outline planning permission, there would have been no need for it to consider the question of an EIA at the reserved matters stage. What the council in fact did, however, was to consider whether the development that was the subject of the reserved matters application would have environmental effects materially different from those flowing from the business park development, in relation to which there had been no consideration of an EIA. Even if the decision were read as comparing the effects of the reserved matters with those of the development for which the leisure outline planning permission was granted, that too was misconceived. Reserved matters must fall within the scope of the outline consent. It is almost a contradiction in terms to enquire whether the effects of the reserved matters are likely to be significantly different from those considered at the outline planning permission stage. Accordingly, if consideration is to be given to an EIA at the reserved matters stage, the only proper question must be whether the development is likely to give rise to significant environmental effects. That is a fresh factual question. The formal validity of earlier planning permissions is not an answer to it.
20. A further way in which Mr Phillips seeks to meet the argument concerning the validity of earlier permissions is by reference to the passage in Wells concerning the duty to nullify the unlawful consequences of breach of the Directive. In Wells itself the principle was articulated in relation to a consent which had been granted several years earlier without considering the need for an EIA and which had not been challenged and was therefore formally valid. The issue was whether there should be revocation or modification of that existing consent in order to nullify the unlawful failure to consider whether an EIA was required. Similarly, it is submitted, where the council had failed in this case to give lawful consideration to the question of an EIA at the earlier stage, it was incumbent on the council to give proper consideration to the question of an EIA at the reserved matters stage. It is not compatible with the principles expressed in Wells to rely on the earlier unlawful decision that an EIA was not required. Such an approach effectively perpetuates, rather than nullifies, the effects of the unlawful consequences of the earlier breach of the Directive. (I should mention that in the present case the claimant has also asked the council to revoke the outline planning permission, relying for that purpose on the relevant passage in Wells. The issue of revocation, however, is not a matter before this court.)
21. In any event it is submitted that the question whether significant environmental effects were likely to arise from the reserved matters development was a factual judgment involving a fresh decision which itself had to be taken lawfully on the facts. Lawful appraisal of the facts could not be avoided by reliance upon the formal legal validity of the earlier decisions. In relying upon the decision reached at the leisure outline planning permission stage the council in substance repeated the error of law which lay behind that earlier decision; it effectively resuscitated the earlier defective reasoning. The fact that the earlier decisions are not open to challenge does not mean that the court cannot go behind the decisions and have regard to the defective reasoning that lay behind them.

Submissions for the Council and Interested Parties

22. For the council, Miss Robinson submits that the claimant's case is an indirect or collateral challenge to the lawfulness of the earlier decisions, namely the outline planning permissions for the business park and the leisure development and the screening decision that an EIA was not required in the context of the leisure outline planning permission. Those earlier decisions, however, are lawful decisions to which the council was entitled to have regard. It is not open to the claimant to mount an indirect challenge to them. If the claimant cannot get round the validity of the earlier decisions, the present claim must fail since nothing else is relied on.
23. As regards the validity of the earlier decisions, Miss Robinson submits that administrative acts are valid unless and until struck down by the court. They will be invalidated only if challenged by the right person in the right proceedings and at the right time – in this context, by a person with a sufficient interest bringing proceedings for judicial review promptly and in any event within three months. She cites O'Reilly v Mackman [1983] 2 AC 237 per Lord Diplock at 283 F:

“Failing such challenge within the applicable time limit, public policy, expressed in the maxim praesumuntur rite esse acta, requires that after the expiry of the time limit it should be given all the effects in law of a valid decision.”

24. Lord Diplock's reference to the presumption of regularity produced a sideshow, with Mr Phillips submitting that the presumption can be displaced and citing by way of example Canning v. Enever [1962] 1 WLR 321 and Woollett v. Minister of Agriculture and Fisheries [1955] 1 QB 105. In relation to that line of argument, I think it sufficient to note here that those are very different cases, involving the displacement of the presumption in the context of a direct and timely challenge to a relevant decision. They do not bear on Lord Diplock's point that a decision which has not been duly challenged within the time limit must be given all the effects in law of a valid decision.
25. As an illustration of the principle expressed by Lord Diplock, Miss Robinson cited Lovelock v. Minister of Transport (1980) 40 P&CR 336 per Lord Denning MR at 345, where it was held in proceeding to quash a compulsory purchase order that it was not open to the appellant to challenge an earlier decision granting consent to the initiation of the compulsory purchase order procedures even if the consent was flawed.
26. It is submitted further that this principle is consistent with the general principles of EC law and with what was said in Wells about the obligation to nullify the unlawful consequences of a breach of EC law. The court made clear in Wells that the relevant requirement (to take measures to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure they are subject to an EIA) is subject to the limits laid down by the principle of procedural autonomy of the Member States. The detailed procedural rules applicable are a matter for the domestic legal order, subject to the principle of equivalence and the principle of effectiveness. So the court was not laying down an absolute obligation, and nothing that it said detracts from the normal rule that a decision which has not been invalidated through a timely challenge must be treated as valid and cannot be subjected to an indirect or collateral challenge of the kind mounted by the claimant in this case.
27. As to why consideration was given to the question of an EIA at the reserved matters stage, Miss Robinson points to the uncertainty created by the reference to the European Court of Justice in Barker, and to the fact that the claimant was contending that the council was under a duty to consider the question at that stage. In those circumstances it was practical good sense to consider it. It was plainly not the case that the council considered it because it thought that it had not considered it properly at the outline planning permission stage.
28. With regard to the detailed reasons for the decision that an EIA was not required at the reserved matters stage, Miss Robinson takes issue with the claimant's case that the business park permission was treated as a benchmark. She submits that the council considered the reserved matters primarily in the light of the leisure outline planning permission, but also had regard to the business park permission and the intrinsic qualities of the location and potential impact of the development. Consideration was given as to whether the proposed development was of a significantly greater scale or different in nature from that covered by the outline planning permission. In relation to cumulation, the council made a direct comparison with the leisure outline planning permission, on the basis that other consents were in place at the time when that leisure outline planning permission was granted. In relation to location it considered the development on its merits. The same applies to the characteristics of the potential impact, though account was taken also of the extant planning consents. The reasoning amounted to a lawful appraisal on the facts, taking properly into account the effects of a lawful planning permission on the same site.
29. Miss Robinson accepts that a comparison between effects at the reserved matters stage and effects at the stage of the outline planning permission gives rise to a certain tension because by definition, for reserved matters to come within the scope of the outline planning permission, the effects cannot be materially different. That is one of the arguments advanced in support of the view that an EIA must be considered at the stage of outline planning permission and does not need to be considered at the stage of reserved matters approval. But that is a matter for decision in Barker. Where, pending the decision in Barker, a planning authority does consider the question of an EIA at the reserved matters stage, it is appropriate for it to consider whether the effects do go beyond those of the outline planning permission in scale or nature.
30. For the interested parties, Mr Katkowski adopts Miss Robinson's arguments and submits that the claimant's case is erected on the twin pillars of a misunderstanding of the law and a misunderstanding of the facts. As to the law, the claimant has to contend that the previous decisions were not material considerations to which a council could lawfully have regard, and it has to do so on the basis that the previous decisions are to be treated as invalid. That, however, is plainly wrong. In addition to the authorities cited by Miss Robinson, Mr Katkowski relies on Hoffmann-La Roche v Secretary of State for Trade and Industry [1975] AC 295, per Lord Diplock at 366. The passage in question relates to the presumption of validity of subordinate legislation except where challenged in proceedings brought by the right person at the right time. It is submitted that the same principle applies to decisions of the kind here in issue, and that the claimant is hopelessly out of time for any challenge to the earlier decisions, which must therefore be treated as valid for all purposes. Mr Katkowski also refers to Corbett v. Restormel Borough Council [2001] EWCA Civ 330 at paragraph 15, where emphasis is placed on the importance of people being able to rely on decisions of public bodies as being lawful until such time as they are quashed. It therefore follows, submits Mr Katkowski, that the council was plainly entitled to rely on the earlier, unchallenged decisions. The law does not oblige a decision maker to ignore such previous decisions.
31. Mr Katkowski makes the same point as Miss Robinson with regard to the passage in Wells concerning the duty to nullify the unlawful consequences of earlier breaches of the Directive. He submits that it is clear that the obligation is subject to the proviso that national procedural rules apply. Under our national rules the earlier, unchallenged decisions are to be treated as valid. This is no different from the general position under Community law. Nothing in Wells made it unlawful for the council to have regard to the earlier decisions.
32. In relation to the facts, Mr Katkowski submits that the decision that an EIA was not required at the reserved matters stage worked systematically through the relevant criteria as set out in schedule 3 to the 1999 Regulations. Schedule 3 requires the characteristics of development to be considered having regard, in particular, to the size of the development, the cumulation with other development, the use of natural resources, the production of waste, pollution and nuisances, and the risk of accidents. All this was done. The next heading in the schedule is the location of the development, the requirement being to consider the environmental sensitivity of the geographical areas likely to be affected by it. Again this was considered. Thirdly, the schedule requires a number of matters to be considered under the heading of characteristics of potential impact. These matters, too, were considered. A proper exercise was carried out. It included lawful reference back to legally relevant previous consents.

Discussion

33. Having heard the rival submissions summarised above, I granted permission and treated the hearing as the hearing of the substantive claim for judicial review. I granted permission because it seemed to me that, because of the potential complexities of the EIA regime, as underlined by the judgment in Wells and by the reference in Barker, the issues merited a more considered judgment than is generally appropriate on a permission application. The council and the developer were more than content for the hearing to be treated as the substantive hearing. The claimant did not consent to that course. I was nevertheless satisfied that it was the appropriate course to adopt. I had heard full or sufficiently full argument on the issues raised in the claim form. Although Mr Phillips submitted that the council might file further evidence and provide disclosure, in particular on why it decided to consider the question of an EIA at the reserved matters stage, I did not regard that as a good reason for deferring the substantive hearing: the council did not require the opportunity to file evidence, the claimant had not previously suggested the need for disclosure, and in my view no disclosure was necessary. Thus I took the view that the interests of the claimant would not be materially prejudiced by proceeding at once to a substantive hearing. By contrast, the material before the court indicated that the developer could be seriously prejudiced by further delay in the resolution of the case.
34. Having now reflected on the rival submissions, I am satisfied that the objections advanced by Miss Robinson and Mr Katkowski are well founded and that the claim must be dismissed.
35. The starting point must be the validity of the outline planning permissions granted in June 1997 and January 2002 respectively, for the business park and the leisure development respectively. They were not challenged at the time, there has been no application to challenge them out of time, and there would be no realistic prospect of time being extended so as to permit such a challenge now. On the basis of well established principles supported by the authorities cited by counsel for the council and the interested parties, including the dicta of Lord Diplock in Hoffmann-La Roche and O'Reilly v. Mackman, those earlier consents must be given all the effects in law of valid decisions. The same applies to the June 2000 screening decision that the application for the leisure outline planning permission did not need to be accompanied by an EIA.
36. In those circumstances the council was plainly entitled, when considering the application for reserved matters approval, to have regard to the earlier decisions. In particular, the two outline planning permissions were extant, lawful consents in respect of the same site (or, in the case of the business park permission, in respect of a larger area of land of which the site formed part) and were properly taken into account as material considerations. Indeed, the application for reserved matters approval was necessarily premised on the validity of the leisure outline planning permission pursuant to which the application was made.
37. Equally, the claimant is plainly not entitled to use the present claim as a means of mounting an indirect or collateral challenge to the validity of the earlier decisions.
38. But it is still necessary to consider the particular implications of the EIA regime and, in particular, Mr Phillips's case that as a matter of EC law, in relation to the decision that an EIA was not needed for the reserved matters, one can and should look behind the formal validity of the earlier decisions and examine the adequacy of the consideration previously given to the need for an EIA.
39. There is a real artificiality in the very nature of the EIA exercise undertaken by the council at the reserved matters stage in this case, given that (i) a considered decision was taken at the outline planning permission stage that an EIA was not needed, and (ii) reserved matters should not have materially greater effects if they are to fall within the scope of the outline planning permission at all. In a case where, as here, the need for an EIA had been considered and rejected in a reasoned decision at the outline planning permission stage, and no challenge had been brought to that decision, I would be surprised if the law required further consideration to be given to the question of an EIA at the reserved matters stage. Barker might be considered a more problematic case on its facts since in that case there was no clear evidence that the need for an EIA had been considered at all by the decision-maker at the outline planning permission stage (see the judgment of the Court of Appeal [2001] EWCA Civ 1766, at para 6). I recognise, however, that one cannot reliably predict either the outcome of the reference in Barker or its implications for a case such as the present. In the state of uncertainty created by Barker, it is entirely understandable that the council saw fit, as a precautionary measure, to give further consideration to the question of an EIA at the reserved matters stage. By following that course it cannot be taken to have been impliedly accepting that its consideration of the EIA issue at the outline planning permission stage was in some way defective. There is no foundation at all for such an inference. The only inference that can reasonably be drawn is that the council was doing the best it could to cover all eventualities in an uncertain legal position.
40. I do not accept that, if such an exercise was to be carried out at all in this rather unsatisfactory situation, it had to be carried out as a fresh exercise without reference back to the earlier decisions. Those earlier decisions formed part of the legal and factual context within which the need for an EIA at the reserved matters stage fell to be assessed.
41. In considering the detailed reasons given by the council for its decision that an EIA was not required at the reserved matters stage, I bear in mind both the artificiality of the particular exercise and the more general point that in examining a decision of this kind the document must be read as a whole and must not be construed too strictly.
42. It seems to me that the decision was based in part on a comparative exercise and in part on an examination of the reserved matters looked at by themselves. In so far as it was based on a comparative exercise, I take the view that the essential comparison was with the leisure outline planning permission, not the business park permission. I therefore reject Mr Phillips's submission that the business park permission was the benchmark for consideration of the reserved matters. The leisure outline planning permission was the starting point of the reasons given: “this application constitutes a further, reserved matters submission pursuant to an extant outline planning permission for those uses specified within the application the subject of this screening". It was also the end point, in that the final paragraph of the decision stated that in reaching the decision the council was cognisant of the fact that an EIA was determined not to be required at the outline planning permission stage and that there was no call-in by the Secretary of State. The references to the business park were very much secondary.
43. In particular, the finding, as regards the characteristics of the development, that it “would not be on a significantly greater scale or of such a different nature to require the submission of an EIA” was in my view a finding that it did not differ significantly from the development for which the leisure outline planning permission had been granted, albeit that reference was also made to the fact that “the land was originally consented for business park purposes”. The finding that cumulation with other development would not alter the situation was likewise based in particular on a reference back to the leisure outline planning permission, the point being that the approvals for the business park development and Westwood Cross development were both in place at the time when the leisure outline planning permission was granted.
44. As regards the location of the development, there was no specific element of comparison with the earlier permissions. As regards the characteristics of the potential impact of the development, the existence of the earlier permissions was taken into account, but the focus was on the activity associated with the reserved matters and the finding was that that activity would not be sufficient to justify an EIA.
45. Overall it seems to me that the council did a reasonable job of going through the list of relevant criteria, as set out in schedule 3 to the 1999 Regulations, and determining in the light of them that an EIA was not needed.
46. If the essential comparison had been with the business park outline planning permission rather than with the leisure outline planning permission, Mr Phillips's submissions might have had more force to them. I can see why it might be said to be inappropriate, when considering whether an EIA was needed at the reserved matters stage, to base the decision on a comparison with a different and larger development in respect of which, on the claimant's case, the need for an EIA had not been considered at all. There might be an element of circularity or illogicality in reasoning along the lines of “no EIA is needed because the effects will not be significantly greater than those of another development, in relation to which the need for an EIA was not considered”.
47. But the same does not apply to a comparison with the leisure outline planning permission. Express consideration was undoubtedly given at the outline planning permission stage to whether an EIA was needed, and a reasoned decision was reached that it was not. In principle, therefore, I see no reason why, in determining whether an EIA was required at the reserved matters stage, there was anything wrong in comparing the reserved matters with the development approved by the outline planning permission. In that connection I should also note that, although Mr Phillips criticised the lack of specificity of the development for which the leisure outline planning permission was granted, the substance of the reserved matters was very similar to the substance of the development shown in the illustrative layout plans that accompanied the application for outline planning permission.
48. That brings me to Mr Phillips's submission that, although the question of an EIA was expressly considered at the stage of the leisure outline planning permission, any comparison with it was still flawed because the consideration given to the question at the outline stage was inadequate and the decision not to require an EIA was defective: the information available was insufficient for the purposes of proper consideration of the EIA issue and/or the decision itself was based in turn on an inappropriate comparison with the development permitted by the business park outline planning permission. In my judgment, that line of argument constitutes a naked, if indirect, challenge to the validity of the leisure outline planning permission and the related screening decision. On normal domestic law principles, as discussed above, such a challenge to the validity of an earlier decision is impermissible. I see nothing in the EIA regime that subverts the normal position. What the Court said in Wells about the obligation to nullify the consequences of a breach of the Directive is not to be taken as calling into question the validity of earlier decisions which are no longer open to challenge under domestic law. The obligation was expressed to be subject to national procedural rules (with a standard proviso concerning the principles of equivalence and effectiveness). The particular issue in Wells was whether an earlier permission could be revoked or modified, rather than whether it could be treated as invalid; and even that particular issue was clearly stated to be a matter for determination by the national court applying national procedural rules. If, moreover, it were possible to mount indirect challenges of this kind to the validity of earlier EIA decisions, that would be destructive of legal certainty, which is as much a principle of EC law as of domestic law.
49. Accordingly I take the view that the council, in considering the need for an EIA at the reserved matters stage, was entitled to take into account the fact that the need for an EIA had been considered and rejected at the outline planning permission stage, and was entitled to make the comparison it did with the development permitted by that outline planning permission. Neither by virtue of that comparison nor in any other respect did the council err in reaching its decision that an EIA was not needed at the reserved matters stage.
50. For those reasons the claimant fails in its challenge to the decision to grant reserved matters approval, and the claim is dismissed.