Brown, R (on the application of) v Stobart Air Ltd. Country/Territory United Kingdom Type of court National - higher court Date May 19, 2010 Source UNEP, InforMEA Court name Court of Appeal Seat of court London Judge JacobSullivanWaller. Reference number [2010] EWCA Civ 523 Language English Subject Land & soil, Environment gen. Keyword Land-use planning Abstract Section 106 (S106) of the Town and Country Planning Act 1990 allows a local planning authority (LPA) to enter into a legally-binding agreement or planning obligation with a landowner in association with the granting of planning permission. The obligation is termed a Section 106 Agreement. The present decision of the Court of Appeal has decided that works required by a s106 agreement were part of the ‘cumulative effects of the development and therefore should have been subject to Environmental Impact Assessment (“EIA”). This means that the effect of works required by s106 agreements should now be assessed as part of the effects of the development for which permission is granted. The case concerned proposals to construct a new freight storage and distribution centre at Carlisle Airport. However, a key part of the justification for the development was that this would act as ‘enabling development, allowing the operator to upgrade the runway and passenger facilities at the airport. These works were secured by a s106 agreement. Planning permission was granted and this was challenged on the basis that the EIA Regulations required the ES to describe the “likely significant effects of the development on the environment, which should cover the direct effects and any… cumulative… effects” (Sch 4, Part I, para 4). This information must be included in the ES if it is ‘reasonably required to assess the environmental effects of the development (EIA Regulations, r2(1)(a)). The Court of Appeal found in favour of the claimant. Rejecting it held that: There was no need to have 1) a ‘functional link between two developments for one to be part of the cumulative effects of the other. It would be a question of fact in every case; 2) The claimants case was supported in the instant case because the council had relied on the works in the s106 agreement to say that the development was in compliance with the development plan. There is no suggestion that this was required for the works to be regarded as part of the ‘cumulative effects of the development; 3) The lack of full detail about the works in the s106 agreement did not mean that it was not reasonable (within the terms of the EIA Regulations) to require an assessment of their environmental effect. The contrary argument failed on the facts of the case (the council had assessed various benefits of the works). The court also suggested that the minimum of works required by the s106 agreement could have formed the basis of the assessment if there had been any doubt The court therefore held that there had been a breach of the EIA Regulations. The developer also offered the court, as an alternative to quashing the decision, an undertaking not to proceed with the works for which planning permission had been granted, until after an EIA was carried out for the airport works. The court declined to accept the undertaking, on the basis that a planning permission was a public document/instrument, in which the public had an interest, and also because agricultural tenants on the land were affected by the existence of the planning permission, in relation to possession proceedings brought against them by the Council (the development was going to take place on the land they farmed). A “very good reason” would have to be shown for not quashing an unlawful permission on the basis of an undertaking, and none had been shown in this case. The case also provides a warning to councils or developers who seek to rely either on previous or on future EIAs. The Court has reemphasized the importance of taking into account all relevant environmental information (including consultation responses) for each successive application and conducting the EIA early enough in the decision making process for it to make a difference. Full text COU-156636.pdf