Planning permission – Development – Appellant seeking permission to develop hospital – Respondent determining that environmental impact assessment not required – Respondent failing to give reasons for decision – Parties seeking reference to European Court of Justice to rule whether reasons required – Whether reference appropriate in absence of substantive judgment of English court – Application granted
The appellant had applied for planning permission to develop a medium secure hospital. Having considered the Town and Country Planning (Environmental impact Assessment) (England and Wales) Regulations 1999 (SI 1999/293), the respondent secretary of state took the view that an environmental impact assessment (EIA) was not required. He did, however, not give any reasons for that decision.
The appellant’s application for permission to move for judicial review of that decision was refused but permission to appeal against that refusal was granted by a lord justice. At the hearing of that appeal, the parties asked the court to make a reference to the European Court of Justice (ECJ) for a preliminary ruling on Council Directive 85/337, regarding the assessment of the environmental effects of public and private projects. They submitted that a reference could be made without a substantive domestic judgment because the Court of Appeal, in a refused application for permission to appeal, had determined that there was no requirement to give reasons: see R v Secretary of State for the Environment, Transport and the Regions, ex parte Marson (1998) P&CR 202.
The parties agreed that, as a matter of English law, that judgment, although not binding, was persuasive. They also pointed out that a complaint relating to that judgment was, under Article 226(2) of the EC Treaty, before the ECJ so that the instant case could be determined in the same proceedings.
Held: The application was granted.
Although in Marson was not binding on the court, it was a carefully reasoned judgment that was intended to provide guidance to those that sought to challenge a decision of the respondent regarding the requirement for an EIA. The judgment was regarded as good law and had been relied upon for many years. As such, the court would give it very special regard and would be reluctant to disagree with it.
In the unusual circumstances of the present case, the court had decided that it was not necessary to conduct a substantive hearing since it was appropriate, convenient and necessary to obtain answers to the proposed questions given by reference to EC law as soon as possible and without delay.
Accordingly, the following questions, inter alia. would be referred to the ECJ for a preliminary ruling, namely: (i) whether, under article 4 of Council Directive 85/337, as amended by directives 97/11 and 2003/35, the respondent had to make publicly available reasons for determining there was no requirement to carry out an EIA in accordance with articles 5 to 10 of the directive; and, if so, (ii) what principles governed the requirement to give reasons in this context.
Richard Harwood (instructed by Richard Buxton Solicitor, of Cambridge) appeared for the appellant; James Maurici (instructed by the Treasury Solicitor) appeared for the respondent.
Eileen O’Grady, barrister
