Planning permission granted after meeting requirements of environmental impact assessment expiring - planning authorities deciding not to take enforcement action but to allow development to proceed according to developer's unilateral planning obligations - not development consent so no requirement for fresh environmental impact assessment

R (Prokopp) v London Underground Ltd and others: CA (Lords Justice Kennedy, Schiemann and Buxton): 7 July 2003

In January 1997, planning permission was deemed granted by the secretary of state to the first defendant for an extension to an underground railway.

In 2003, after the planning permission had expired without lawful commencement of work within five years, two local authorities whose areas covered the development decided not to take enforcement action but to allow the development to continue in accordance with an unilateral planning obligation executed by the developer under the Town and Country Planning Act 1990.

The claimant sought judicial review on the ground that the decisions of the authorities constituted development consents for the purposes of article 1 of Council Directive 85/337/EEC (as amended by Council Directive 97/11/EC), granted without a fresh assessment of environmental impact as required by the directive.

The judge quashed the decisions and continued an interim injunction against the continuation of development work on the basis that the decisions constituted a development consent, but held that there had been a substantial compliance with the directive.

The claimant and the defendants appealed.

Richard Clayton QC, Richard Harwood and Christiaan Zwart (instructed by Richard Buxton, Cambridge) for the claimant; Michael Barnes QC, Eian Caws and Julian Greenhill (instructed by the Legal Director, London Underground Ltd) for the first defendant; Richard Gordon QC and Philip Petchey (instructed by the Solicitor, Tower Hamlets London Borough Council) for the council; Peter Harrison (instructed by the Solicitor, Hackney London Borough Council) for the council; Anthony Dinkin QC and Robin Green (Linklaters) for the Strategic Rail Authority.

Held, dismissing the claimant's appeal but allowing the defendants' appeals, that the failure of a planning authority to take, or a deliberate decision not to take, enforcement action and to allow the development to continue pursuant to obligations undertaken by the developer in accordance with national legislation did not constitute a 'development consent' in the terms of article 1(2) of the directive; and that, accordingly, there was no requirement to obtain a fresh environmental impact assessment and the authorities' decisions were lawful.