R (Eley) v Watford Borough Council

Transcript date:

Thursday, September 16, 2010

Matter:

Court:

Court of Appeal

Judgement type:

Permission

Judge(s):

LJ Patten

Transcript file:

Case No: C1/2010/0415
Neutral Citation Number: [2010] EWCA Civ 1265
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 16th September 2010

Before:

LORD JUSTICE PATTEN

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ELEY
Appellant
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WATFORD BOROUGH COUNCIL & ANOTHER

 

Respondent
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Mr Richard Drabble QC (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Appellant.

THE RESPONDENTS DID NOT APPEAR AND WERE NOT REPRESENTED.

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Judgment
As Approved by the Court

Crown copyright©

Lord Justice Patten:

1. I think I should make clear that the reason why I have decided, contrary to the view of Sullivan LJ, to give permission to Mrs Eley to take proceedings for judicial review is that I take the view that it is arguable on the Court of Justice authorities, and particularly the decision of the court in Commission v Spain [2004] C-227/01 that the task of the local planning authority in a case such as this is to determine what is the relevant project for the purposes of the Directive. It seems clear from that case that the court can look realistically at the development in question (that was an application in relation to a long-distance rail line) and that attempts to evade the application of the Directive by cutting the project into smaller sections will be ineffective, not merely because that is or might be done precisely with the intention of avoiding the application of the Directive, but also because under the terms of the Directive itself, properly interpreted, the project remains what in reality is the totality of the development project and not what the developer wishes the local planning authority to consider it to be.

2. Sullivan LJ, I think, took the view that a critical question was whether, on the facts, there had been an intention to split the project on the part of the developers into two parts in order to make each one of the planning applications, one in respect of less than half a hectare of land; but in my judgment it is at least arguable, and that is all I have to decide on this application, that that does not get one out of the Directive because the project remains one of the totality of the site, and the duty therefore on the local planning authority is to look at the site as a whole for the purposes of deciding whether an impact assessment is appropriate.

Order: Application granted.