Barker – EIA at reserved matters stage

The key question in Barker was whether, if EIA had not been carried out at the outline planning stage, could it be carried out at the later approval of reserved matters? The House of Lords referred the point to the CJEU which confirmed that it indeed could be. The key requirement was to see EIA carried out before grant of “development consent”.

Barker was another case which upset the established order in domestic planning law. It arose because in the UK there is a system whereby planning permissions especially for larger projects consist of an outline or “in principle” stage, with details to be worked out at a later “reserved matters” stage. Indeed, there may be various subsequent consents required before a project can proceed. It had been thought that if EIA was to be carried out at all, it must be at the outline stage, and it was too late to require it at a later stage even if for whatever reason it had not been carried out then.

This case involved proposals for a multiplex cinema in Crystal Palace Park and for reasons which were never quite clear the need for EIA had in effect been overlooked at the outline stage. Diane Barker was a local resident who (with many others) objected to the scheme. We were instructed and were unsuccessful in the High Court and Court of Appeal. However, it seemed plain that the EIA directive required EIA before “development consent” was granted and the wording of the directive was clear that this was the consent that entitled the developer to proceed with the project. We had had a similar dispute in Case C-201/02 Wells v. Secretary of State for the Environment which the High Court had referred to the CJEU (there, the subsequent consent was satisfaction of a condition in an old quarrying consent) and which had been answered thus. Indeed, during Barker the CJEU asked the House of Lords whether it really wanted the question answered as it had already been addressed in Wells.

In any event the net result was that the domestic EIA Regulations were extensively revised in the light of Barker and Wells to take account of the need to carry out EIA at later stages where it has not been done and there are likely to be significant environmental effects. In other cases, such as Case C-261/18 Commission v. Ireland the CJEU has further underlined the duty of planning authorities to ensure that EIA is carried out. It is an important environmental protection tool, to ensure that development proposals are considered in the light of best possible information and input.