Environmental assessment — Planning application — Council Directive 85/337/EEC — Whether court entitled to have regard to all circumstances relating to an environmental assessment — Whether court can dismiss application to quash planning permission granted without EIA where equivalent information available in number of sources — Whether planning permission granted without EIA should be quashed
The second respondent football club sought planning permission and
listed building consent for development consisting of improved accommodation at
its football ground and 142 flats, with associated basement parking, near the
River Thames. The Secretary of State for the Environment directed that the
application be referred to him for decision. Following a public local inquiry
and the submission of his inspector’s report, recommending that planning
permission be granted subject to conditions, the Secretary of State granted the
consents by a letter dated 15 August 1996. The appellant’s application under
section 288 of the Town and Country Planning Act 1990 (the 1990 Act) and
section 62 of the Planning (Listed Buildings and Conservation Areas) Act 1990
to quash the grant of planning permission, on the ground, inter alia,
that it was ultra vires because no EIA had been undertaken, was
dismissed in the High Court. On appeal, the Court of Appeal decided that an EIA
was required; however it upheld the decision of the court below ([1998] 3 PLR
39) on the ground, inter alia, that the court retain a discretion to
decline to quash a decision if the objectives were in substance achieved by the
procedure followed. It held that while an environmental statement should be
provided in the form required by the regulations, it was legitimate, upon an
application under section 288 of the 1990 Act, to have regard to all the
circumstances. The applicant appealed to the House of Lords.
The planning permission was ultra
vires without the EIA, and individuals affected by the development had a
directly enforceable right to have the need for an EIA considered before the
grant of planning permission, by the Secretary of State, and not afterwards by
a judge. A court is not entitled retrospectively to dispense with the
requirement of an EIA on the ground that the outcome would have been the same,
or that the local planning authority or Secretary of State had all the
information necessary to enable them to reach a proper decision on the
environmental issues. Although section 288(5)(b) of the 1990 Act, in providing
that the court ‘may’ quash an ultra vires planning decision, clearly
confers a
with its obligations under European law, exercise that discretion to uphold a
planning permission that had been granted contrary to the provisions of the
directive. To do so would seem to conflict with the duty of the court under
Article 10 of the EC Treaty to ensure fulfilment of the United Kingdom
obligation under the Treaty. In classifying a failure to conduct a requisite
EIA, for the purposes of section 288, as not merely non-compliance with a
relevant requirement but as rendering the grant of permission ultra vires,
the legislature intended to confine any discretion within the narrowest
possible bounds. It is exceptional even in domestic law for a court to exercise
its discretion not to quash a decision that had been found to be ultra vires:
see Bolton Metropolitan Borough Council v Secretary of State for the
Environment (1991) 61 P&CR 343. Commission of the European
Communities v Germany Case C-431/92 [1995] ECR I-2189 established
that an EIA by any other name would do. It was not accepted that a paper chase
through a number of documents and proofs of evidence available at the public
local inquiry could be treated as the equivalent of an environmental statement.
Such a paper chase does not comply with the terms of the directive. The point
about an environmental statement contemplated by the directive is that it
constitutes a single and accessible compilation, produced by the applicant at
the very start of the application process, of the relevant environmental
information and the summary in non-technical language. Article 6.3 gives member
states discretion as to the places where the information can be consulted, the
way in which the public may be informed and the manner in which the public is
to be consulted. It does not allow member states to treat a disparate
collection of documents, produced by parties other than the developer, and
traceable only by a person with a good deal of energy and persistence, as
satisfying the requirement to make available to the public the Annex III
information, which should have been provided by the developer.
Aannamaersbedrijf PK Kraaijeveld BV v Gedeputeerde
Staten Van Zuid-Holland (Dutch Dykes Case) C-72/95 [1997] Env LR 265;
[1996] ECR I-5403
Berkeley v Secretary of State for the Environment [1998]
3 PLR 39
Bolton Metropolitan Borough Council v Secretary of
State for the Environment (1991) 61 P&CR 343; [1991] JPL 241, CA
Commission of the European Communities v Germany Case
C-431/92 [1995] ECR I-2189
Marleasing SA v La Comercial Internacional de
Alimentación SA Case C-106/89 [1990] ECR I-4135
R v North Yorkshire County Council, ex parte Brown
[2000] 1 AC 397; [1999] 2 WLR 452; [1999] 1 All ER 969; [1999] 1 PLR 116
World Wildlife Fund v Autonome Provinz Bozen
Case C435/97 [2000] 1 CMLR 149; [2000] 2 PLR 1
Appeal against the decision of the Court of Appeal
This was an appeal by the applicant, Lady Berkeley, against the
decision of
High Court dismissing her application to quash the grant of planning
permission.
of Cambridge) appeared for the appellant, Lady Dido Berkeley.
Solicitor) represented the respondent, the Secretary of State for the
Environment.
LORD BINGHAM OF CORNHILL: My lords, I have had the benefit of
reading in draft the opinion of my noble and learned friend Lord Hoffmann, with
which I am in full agreement. I gratefully adopt his summary of the facts and
his citation of the relevant materials.
The issue in these proceedings is whether the Secretary of State’s
grant of planning permission for development of the Fulham Football Club site
at Craven Cottage should be quashed. There is much common ground between the
parties’ approach to that issue.
It is agreed that the Council Directive 85/337/EEC confers a
Community law right exercisable by persons such as the appellant. It is
accepted that the directive was correctly transposed into domestic law by the
Town and Country Planning (Assessment of Environmental Effects) Regulations
1988. It is common ground that the Secretary of State did not consider whether
the proposed development was an urban development project that would be likely
to have significant effects on the environment by virtue of factors such as its
nature, size or location, so as to fall within Schedule 2 to the regulations
that he should have considered that question (whatever his conclusion might
have been if he had), and that he was in breach of regulation 4(2) in granting
planning permission without considering it. There was also, I think, a breach
of regulation 10(1) in failing to consider it, and such consideration was
required by Article 4.2 of the directive. It is common ground that the
Secretary of State’s failure to consider the question cannot in law be
justified or excused on the ground that the outcome (namely the grant of
planning permission on the terms of the actual grant) would have been the same
even if he had considered it. The parties agree that the Secretary of State’s
failure can in law be excused, if at all, only on the ground that there was, on
the special and perhaps unusual facts of this particular case, substantial
compliance with the requirements of the directive and the regulations. It is
not, however, suggested that if the Secretary of State had considered the
question, and had formed the opinion that the proposed development was an urban
development project that would be likely to have significant effects on the
environment by virtue of factors such as its nature, size or location, he
could, otherwise than by giving an exemption direction under regulation 3(a),
have lawfully waived the procedure laid down in the regulations for assessing
the environmental impact of the development on the ground that there had been,
or would be, substantial compliance with the requirements of the directive and
the regulations. It would, I think, be
result that he could not lawfully achieve if acting deliberately.
By virtue of regulation 25, the grant of planning permission in
contravention of regulation 4 is to be treated for the purposes of section 288
of the Town and Country Planning Act 1990 as action that is not within the
powers of the Act. Even in a purely domestic context, the discretion of the
court to do other than quash the relevant order or action where such excessive
exercise of power is shown is very narrow. In the Community context, unless a
violation is so negligible as to be truly de minimis and the prescribed
procedure has, in all essentials, been followed, the discretion (if any exists)
is narrower still. The duty laid upon member states by Article 10 of the EC
Treaty, the obligation of national courts to ensure that Community rights are
fully and effectively enforced, the strict conditions attached by Article 2(3)
of the directive to exercise the power to exempt and the absence of any power
in the Secretary of State to waive compliance (otherwise than by way of
exemption) with the requirements of the regulations, in the case of any urban
development project that, in his opinion, would be likely to have significant
effects on the environment by virtue of the factors mentioned, all point
towards an order to quash as the proper response to a contravention such as
admittedly occurred in this case. For reasons given in more detail by Lord
Hoffmann, I do not, in any event, agree that there was substantial compliance
with the requirements of the directive and the regulations in this case. It is
quite true that consideration was given, over many years, to various schemes
for developing this site and that the scheme for which permission was given was
the subject of detailed, careful and informed consideration and wide
consultation. But the cornerstone of the regime established by the regulations
is provision by the developer of an environmental statement as described in
Schedule 3 to the regulations, setting out (among other things) the data
necessary to identify and assess the main effects that the development was
likely to have on the environment. The developer provided no document that, in
my view, met that requirement.
Differing, with respect, from the Court of Appeal, I conclude that
this appeal should be allowed and the planning permission quashed.
LORD HOFFMANN: My lords, Fulham Football Club’s ground is
sited on the left bank of the Thames between Hammersmith Bridge and Putney
Bridge. The question in this appeal is whether a grant of planning permission
by the Secretary of State for a redevelopment of the site should be quashed
because he failed to consider whether there should have been an environmental
impact assessment.
Environmental impact assessments
European law
The environmental impact assessment (EIA) is a procedure that was
introduced to implement council directive of 27 June 1985 (85/337/EEC) on the
assessment of the effects of certain public and private projects on the
environment. The directive recites that:
the best environmental policy consists in preventing the creation
of pollution or nuisances at source, rather than subsequently trying to
counteract their effects [and] affirm[s] the need to take effects on the
environment into account at the earliest possible stage in all technical
planning and decision-making processes…
It goes on to recite that it therefore provides ‘for the
implementation of procedures to evaluate such effects’. The general principle
is said to be that:
whereas development consent for public and private projects which
are likely to have significant effects on the environment should be granted
only after prior assessment of the likely significant environmental effects of
these projects has been carried out; whereas this assessment must be conducted
on the basis of the appropriate information supplied by the developer, which
may be supplemented by the authorities and by the people who may be concerned
by the project in question.
The recitals deal with the contents of the assessment in the
following terms:
whereas, for projects which are subject to assessment, a certain
minimal amount of information must be supplied, concerning the project and its
effects;
whereas the effects of a project on the environment must be
assessed in order to take account of concerns to protect human health, to
contribute by means of a better environment to the quality of life, to ensure
maintenance of the diversity of species and to maintain the reproductive
capacity of the ecosystem as a basic resource for life.
The primary obligation imposed up on member states by the directive
is contained in Article 2.1. It is to:
adopt all measures necessary to ensure that, before consent is
given, projects likely to have significant effects on the environment by
virtue, inter alia, of their nature, size or location are made subject
to an assessment with regard to their effects.
By Article 2.2, the EIA procedure may be integrated into the
existing planning procedures of the member states.
Article 4 distinguishes between projects listed in Annex I, such as
oil refineries, power stations and motorways, which are conclusively presumed
to require an EIA, and the wide variety of projects listed in Annex II, which
may or may not require an EIA, depending upon whether the Member State
considers that they are likely to have significant effects on the environment. In
the case of a project falling within Annex II, the Member State must therefore
consider whether or not it requires an EIA. But such consideration need not be
entirely on a case by case basis. Article 4 permits member states to specify
certain projects as being subject to an assessment or establish criteria or
thresholds for determining the question.
Article 5 deals
with the contents of the EIA. By para 1, member states must adopt the necessary
measures to ensure that ‘the developer supplies in an appropriate form the
information specified in Annex III’ so far as it is considered relevant and the
developer can reasonably be required to compile it. Annex III specifies that
there should be a description of the project and the aspects of the environment
likely to be significantly affected, under a number of heads including fauna,
flora, water, landscape and the interrelationship between such factors. There
must be a description of the measures envisaged to prevent, reduce or offset
any significant adverse effects on the environment. And, finally, the developer
must supply a summary of the information in non-technical language.
By Article 6.1, member states must take the measures necessary to
ensure that authorities likely to be concerned by the project, by reason of
their environmental responsibilities, are given an opportunity to express an
opinion. Article 6.2 requires member states to ensure that the application for
development consent and the information gathered pursuant to Article 5 is made
available to the public, and the public must be given the opportunity to
express an opinion before the project is initiated. By Article 6.3, the
detailed arrangements for such information and consultation are left to the
member states.
Domestic law
The United Kingdom implemented the directive by the Town and
Country Planning (Assessment of Environmental Effects) Regulations 1988 (SI
1988 No 1199) (the regulations), made under section 2(2) of the European
Communities Act 1972. The categories of development listed in Annexes I and II
to the directive are reproduced in Schedules 1 and 2 to the regulations. A
‘Schedule 2 application’ is defined as an application for planning permission
for a development specified in Schedule 2 ‘which would be likely to have
significant effects on the environment by virtue of factors such as its nature,
size or location’. A Schedule 2 application must be accompanied by an
environmental statement in accordance with Schedule 3, which reproduces the
contents of Annex III of the directive. By regulation 12B of the Town and
Country Planning General Development Order 1988, a notice of the application,
containing a statement as to where copies of the environmental statement can be
obtained, must be displayed at the site and published in a local newspaper.
The question of whether an application is, or is not, a Schedule 2
application may be determined pursuant to regulation 2(2) by a direction or
statement of the Secretary of State. In the absence of such a direction, the
question is left to be determined in the first instance by the opinion of the
local planning authority. But regulation 10 provides that if an application
without an environmental statement is referred to the Secretary of State for
decision and it appears to him to be a Schedule 2 application, he must notify
the applicant that an environmental statement is required.
Planning applications
The redevelopment of the Fulham Football Club ground has been under
consideration for a long time. The clubhouse and the grandstand and its
turnstiles date from the beginning of the last century. They are in fact listed
as being of special architectural or historic interest. But their facilities
are out of date. The club wants to build a new stadium that incorporates and
improves the listed buildings, and to finance the project by building a block
of flats on its boundary, overlooking the river. Public inquiries into
applications for similar developments were held in 1990 and 1992, and in each
case the application was refused. In 1993 there was another public inquiry into
the unitary development plan put forward by the local planning authority
(Hammersmith and Fulham London Borough Council), which contained policies
relating specifically to the site. The plan was adopted in 1994.
In 1994 the club applied for planning permission and listed
building consent for a development that, after some revision, became the scheme
that is the subject-matter of the present appeal. An environmental statement
did not accompany the applications, and the local planning authority were not
asked to express an opinion upon whether one was required. But the application
was advertised as an ordinary application and representations were received
from a large number of local residents.
One of the features of the scheme was the construction of a walkway
along the river bank beneath the proposed flats. The left bank along that part
of Fulham Reach has a sloping concrete retaining wall faced with blocks at its
base. The proposal was to replace this with a vertical wall supporting the
walkway. The local planning authority asked the advice of an organisation
called the London Ecology Unit on this aspect of the scheme. The unit advised
that the embankment would for some of its length encroach slightly onto the
riverbed, and that the loss of the sloping wall would be damaging to the
habitats of plants, invertebrates, fish and birds in the river. It therefore
recommended that the application be refused.
The local planning authority also consulted with a large number of
other organisations, including the National Rivers Authority (NRA), which was
at that time the statutory body responsible for conservation issues concerning
the Thames. The NRA was at first opposed to the scheme for reasons similar to
those of the London Ecology Unit. Eventually, however, it agreed to withdraw
its opposition on condition that the club built a wetland shelf planted with
reeds along the intertidal foreshore. The London Ecology Unit did not think
that this would be an adequate safeguard or compensation. It remained strongly
against the proposal.
The planning department of the local planning authority prepared a
report for the planning applications and transport subcommittee, which was
presented on 7 June 1995. It is a lengthy and impressive document, summarising
the views of all the parties who had made representations or been consulted. It
listed as ‘background papers’ the representations themselves, including the
letters from the National Rivers Authority and
scheme. On the question of the river ecology, it said that ‘the slight
encroachment into the river is compensated for by an improved habitat for
nature conservation’. Subject to the various conditions specified, it
recommended that planning permission and listed building consent be granted.
Public inquiry
On 9 August 1995 the Secretary of State decided to call in the
applications for his own determination after a public inquiry ‘in order to
assess the proposed housing density impact on car parking in the area and the
impact of the proposed development on the River Thames.’ He did not, however,
require the applicant to produce an environmental statement pursuant to
regulation 10 of the regulations.
Pursuant to r 6 of the Town and Country Planning (Inquiries
Procedure) Rules 1992 (SI 1992 No 2038), the planning authority produced a
statement of their case supporting the application in September 1995. It
referred for detailed reasons to the officers’ report to the planning
subcommittee of 7 June 1995. The club’s statement of case, produced a month
later, contained numerous cross-references to that of the planning authority.
The inquiry was held in Fulham Town Hall for 8 days commencing on
27 February 1996. Leading counsel represented the club and the planning
authority. The club called witnesses to deal with, among other things, the
effect of the development on the river ecology. A local residents’ association
was also represented by counsel, and she called an ecological and environmental
consultant to give evidence in opposition. The proofs of evidence of proposed
witnesses were made available at a ‘library table’ at the inquiry. A number of
local and other people appeared in person.
Decision
The inspector delivered his report in May 1996 recommending that,
subject to a number of conditions, such as the construction of the wetland
shelf, planning permission should be granted. By a letter dated 15 August 1996,
the Secretary of State accepted the recommendation and granted permission.
Application to quash
The appellant Dido Berkeley lives in a house near the site. She has
taken a course on ecology and was concerned about the effect of the development
on the diversity of species in the Thames. She was one of the people who wrote
to the Secretary of State urging him to call in the application and the terms
of her letter indicate that she had seen the officers’ report to the planning
subcommittee. Before the inquiry, she spoke to a number of people whom she
thought might have relevant information. The responsible officer at the local
planning authority was helpful and directed her to the letters on file from the
National Rivers Authority and the London Ecology Unit. She appeared in person
at the inquiry and submitted a written statement.
Regulation 4(2) of the regulations provides that the Secretary of
State shall not grant planning permission pursuant to a Schedule 2 application
unless the information obtained by an EIA has been taken into consideration.
Regulation 25 provides that the grant of planning permission in contravention
of regulation 4 shall, for the purposes of section 288 of the Town and Country
Planning Act 1990, be taken to be outside the powers of the Act. Section 288
provides that a person aggrieved by an order to which the section applies
(including a grant of planning permission), who wishes to question its validity
on the ground that it is not within the powers of the Act, may apply to the
High Court. By subsection 5(h), the High Court, if so satisfied, may quash the
permission.
On 25 September 1995, after the grant of planning permission by the
Secretary of State, Lady Berkeley issued an application under section 288 of
the Act of 1990 to quash the grant of planning permission on the ground, among
others, that it was ultra vires because no EIA had been undertaken. It
came before Tucker J, who dismissed it. The Court of Appeal (Nourse, Pill and
Thorpe LJJ) [1998] 3 PLR 39 upheld his decision. Lady Berkeley appeals against
that decision to your lordships’ House.
Issues
During the course of the hearings before the judge, the Court of
Appeal and your lordships, the issues have been progressively narrowed, so that
there is now a good deal of common ground between the parties. Before the
judge, Lady Berkeley contended that the grant of permission was invalid for a
number of other reasons. These have not been pursued. The club (but not the
Secretary of State) argued before the judge that, upon the true construction of
the regulations, no EIA was required. The judge accepted this submission. The
Court of Appeal held that the judge was wrong to make such a finding. Before
your lordships, Mr David Elvin QC, who appeared as counsel for the Secretary of
State, accepted that the Court of Appeal was right and that the failure of both
the planning authority and the Secretary of State to consider whether an EIA
should be required made the grant of planning permission unlawful.
The judge said that, in the alternative, even if an EIA should have
been required, he would as a matter of discretion refuse to quash the
permission. The reason was that, in his opinion, the absence of the EIA ‘had no
effect on the outcome of the inquiry and could not possibly have done so’. It
was on this ground that the Court of Appeal upheld his decision. Pill LJ said
at p53 that he was unpersuaded that an EIA ‘could have had any effect on the
course of events or was prejudicial to objectors or the quality of the
decision’. Thorpe LJ said at p54 that the existence of the discretion
‘necessarily entails some review of the probable outcome had the proper
procedures been observed’ and that the procedures actually adopted, although
flawed, were ‘thorough and effective to enable the inspector to make a
comprehensive judgment on all the environmental issues affecting the Thames…’.
Before your
lordships, Mr Elvin has not attempted to support this reasoning. He accepts
that the fact that a court is satisfied that an EIA would have made no
difference to the outcome is not a sufficient reason for deciding, as a matter
of discretion, not to quash the decision. The argument that he submitted to
your lordships was a different one, namely that there had, on the facts, been
substantial compliance with the requirements of the directive. So the narrow
issue argued before your lordships was whether the objectives of the directive,
as transposed into domestic law by the regulations, had been substantially
satisfied.
Although it was a matter of concession that the grant of planning
permission was ultra vires and that it could not be validated by a court
as a matter of discretion, merely on the ground that the outcome would have
been the same, these points are of such importance that I think I should say
briefly why I think that Mr Elvin was right to concede them.
Why was the planning permission ultra vires?
The primary obligation under the directive, under Article 2(1), is
for a Member State to require an EIA before consent is given in every case in
which the project is likely to have significant effects upon the environment.
But the decision as to whether an Annex II project is likely to have such
effects is left to the Member State. It depends, as Article 4.2 says, on
whether the member states ‘consider’ that the characteristics of the project so
require. This must mean that in Annex II cases the member states are under an
obligation to consider whether or not an EIA is required. If this were not so,
a member state could, in practice, restrict the scope of the directive to Annex
I cases simply by failing to consider whether, in any other case, an EIA was
required or not.
Article 10 (ex Article 5) of the EC Treaty requires member states
to ‘take all appropriate measures, whether general or particular, to ensure
fulfilment of the obligations arising out of this Treaty…’. In World
Wildlife Fund v Autonome Provinz Bozen Case C-435/97 [2000] 1 CMLR
1491, the European Court of Justice said at p178, para 70 that it
followed that it was for the authorities of member states to:
take all the general or particular measures necessary to ensure
that projects are examined in order to determine whether they are likely to
have significant effects on the environment and, if so, to ensure that they are
subject to an impact assessment.
1 [2000] 2 PLR 1
The Court of Justice said in para 71 that the directive confers
directly enforceable rights upon citizens of the Member State and that, in a
case in which the discretion conferred by the provisions of the directive had
been exceeded (as by omitting altogether to consider whether an EIA should be
required), individuals may rely upon the directive before a court of a Member
State to obtain from the national authorities ‘the setting aside of the
national… measures incompatible with those provisions.’
The regulations
do not expressly impose upon either the local planning authority or the
Secretary of State a general obligation to consider whether an application is a
Schedule 2 application or not. Regulation 5 requires the planning authority to
express an opinion only if so requested by the applicant, and regulation 10
requires the Secretary of State to notify the applicant that an environmental
statement is required if it ‘appears’ to him that the application is a Schedule
1 or Schedule 2 application, without imposing an express obligation to consider
the matter. The prohibition upon the grant of planning permissions without an
EIA in regulation 4(2) applies expressly only to ‘any Schedule 1 or Schedule 2
application’. But since the question of whether an application is a Schedule 2
application is primarily entrusted by regulation 2(2) to the Secretary of
State, it is not difficult, in order to make regulation 4(2) effective, to
imply into that regulation an obligation upon the Secretary of State to consider
the matter. So to construe the regulation would be in accordance with the
obligation of a Member State under the principle in Marleasing SA v La
Comercial Internacional de Alimentación SA Case C-106/89 [1990] ECR I-4135
at p4159, para 8, to interpret domestic law ‘as far as possible, in the light
of the wording and the purpose of the directive in order to achieve the result
pursued by the latter.’
If no reasonable Secretary of State could have considered that the
club’s application was a Schedule 2 application, the judge would of course have
been entitled to rule that no EIA could have been required. But Mr Elvin does
not so contend. It is arguable that the development was an ‘urban development
project’ within para 10(b) of Schedule 2, and the conflicting evidence on the
potential effect on the river is enough in itself to show that it was arguably
likely to have significant effects upon the environment. In those
circumstances, individuals affected by the development had a directly
enforceable right to have the need for an EIA considered before the grant of
planning permission, by the Secretary of State, and not afterwards by a judge.
Does it matter that an EIA would not have affected the
decision?
I said in R v North Yorkshire County Council, ex parte
Brown [2000] 1 AC 397 at p404; [1999] 2 WLR 452 at p4581 that
the purpose of the directive was ‘to ensure that planning decisions which may
affect the environment are made on the basis of full information.’ This was a
concise statement, adequate in its context, but which needs for present
purposes to be filled out. The directive requires not merely that the planning
authority should have the necessary information, but that it should have been
obtained by means of a particular procedure, namely that of an EIA. And an
essential element in this procedure is that what the regulations call the
‘environmental statement’ by the developer should have been ‘made available to
the public’ and that the public should have been ‘given the opportunity to
express an opinion’ in accordance with Article 6.2 of the directive. As
Advocate-General Elmer said in Commission of the European
pp2208-2209, para 35:
It must be emphasized that the provisions of the directive are
essentially of a procedural nature. By the inclusion of information on the
environment in the consent procedure it is ensured that the environmental
impact of the project shall be included in the public debate and that the
decision as to whether consent is to be given shall be adopted on an
appropriate basis.
1 [1999] 1 PLR 116
The directly enforceable right of the citizen that is accorded by
the directive is not merely a right to a fully informed decision on the
substantive issue. It must have been adopted on an appropriate basis, and that
requires the inclusive and democratic procedure prescribed by the directive, in
which the public, however misguided or wrongheaded its views may be, is given
an opportunity to express its opinion on the environmental issues. In a later
case (Aannmaersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van
Zuid-Holland Case C-72/95 [1996] ECR I-5403 at p5427, para 70,
Advocate-General Elmer made this point again:
Where a Member State’s implementation of the directive is such
that projects which are likely to have significant effects on the environment
are not made the subject of an environmental impact assessment, the citizen is
prevented from exercising his right to be heard.
Perhaps the best statement of this aspect of an EIA is to be found
in the UK government publication ‘Environmental Assessment: A Guide to the
Procedures’ (HMSO 1989) at p4:
The general public’s interest in a major project is often
expressed as concern about the possibility of unknown or unforeseen effects. By
providing a full analysis of the project’s effects, an environmental statement
can help to allay fears created by lack of information. At the same time it can
help to inform the public on the substantive issues which the local planning
authority will have to consider in reaching a decision. It is a requirement of
the Regulations that the environmental statement must include a description of
the project and its likely effects together with a summary in non-technical
language. One of the aims of a good environmental statement should be to enable
readers to understand for themselves how its conclusions have been reached, and
to form their own judgments on the significance of the environmental issues
raised by the project.
A court is therefore not entitled retrospectively to dispense with
the requirement of an EIA on the ground that the outcome would have been the same
or that the local planning authority or Secretary of State had all the
information necessary to enable them to reach a proper decision on the
environmental issues.
Although section 288(5)(b), in providing that the court ‘may’ quash
an ultra vires planning decision, clearly confers a discretion upon the
court, I doubt whether, consistently with its obligations under European law,
the court may exercise that discretion to uphold a planning permission that has
been granted contrary to the provisions of the directive. To do so would seem
to conflict with the duty of the court under Article 10 (ex
obligations under the Treaty. In classifying a failure to conduct a requisite
EIA, for the purposes of section 288, as not merely non-compliance with a
relevant requirement but as rendering the grant of permission ultra vires,
the legislature was intending to confine any discretion within the narrowest
possible bounds. It is exceptional even in domestic law for a court to exercise
its discretion not to quash a decision that has been found to be ultra vires:
see Glidewell LJ in Bolton Metropolitan Borough Council v Secretary
of State for the Environment (1991) 61 P&CR 343 at p353. Mr Elvin was, in
my opinion, right to concede that nothing less than substantial compliance with
the directive could enable the planning permission in this case to be upheld.
Substantial compliance
The case upon which Mr Elvin relied for the submission that
substantial compliance would do was Commission of the European Communities
v Germany Case C-431/92 [1995] ECR I-2189. In that case, the Federal
Republic had failed to transpose the directive into its domestic law by the
stipulated date and had given consent to the construction of a power station
without an EIA. It had, however, followed the procedures required by its own
Bundesimmissionsschutzgesetz or Federal Pollution Protection Law. In
enforcement proceedings under Article 169 of the EC Treaty, the Commission conceded
that, in complying with domestic procedures, the developer had, in fact,
supplied all the information required by Article 5.2 and Annex III of the
directive. It also conceded that the information had been made available to the
public and that the public had been given an opportunity to express an opinion
in accordance with Article 6. Advocate-General Elmer considered and rejected
the other points upon which the Commission continued to maintain that there had
been a failure to comply. He said at p2207, para 33 that ‘the procedure
followed in this specific case complied with all the requirements of the
Directive.’
Commission v Germany, in my opinion, establishes that
an EIA by any other name will do as well. But it must, in substance, be an EIA.
Can this be said of the procedure followed in the present case?
Mr Elvin says that the equivalent of the applicant’s environmental
statement can be found in its statement of case under the Inquiry Procedure
Rules, read (by virtue of cross-referencing) with the planning authority’s
statement of case, which, in turn, incorporated the comprehensive officers’
report to the planning subcommittee, which, in turn, incorporated the
background papers, such as the letters from the National Rivers Authority and
the London Ecology Unit, and was supplemented by the proofs of evidence made
available at the inquiry. Members of the public had access to all these
documents and the right to express their opinions upon them at the inquiry.
My lords, I do not accept that this paper chase can be treated as
the equivalent of an environmental statement. In the first place, I do not
think it complies with the terms of the directive. The point about the
environmental statement contemplated by the directive is that it constitutes a
single and accessible compilation, produced by the applicant at the very start
of the application process, of the relevant environmental information and the
summary in non-technical language. It is true that Article 6.3 gives member
states a discretion as to the places where the information can be consulted,
the way in which the public may be informed and the manner in which the public
is to be consulted. But I do not think it allows member states to treat a
disparate collection of documents, produced by parties other than the
developer, and traceable only by a person with a good deal of energy and
persistence, as satisfying the requirement to make available to the public the
Annex III information that should have been provided by the developer.
Second, the regulations represent the way in which the United
Kingdom has chosen to implement the directive. This is not a case like Commission
v Germany, in which the directive had not been implemented, and the
court had to consider whether its terms had nevertheless been satisfied. In the
present case, the directive had been transposed into domestic legislation, and
there was a failure to comply with the terms of that legislation. In my view, a
court should not ordinarily be willing to validate such an act on the ground
that a different form of transposing legislation (eg by allowing an
environmental statement to take the composite form put forward in this case)
might possibly have also satisfied the terms of the directive. I would accept
that if there were a failure to observe some procedural step that was clearly
superfluous to the requirements of the directive, it would be possible to
exercise the discretion not to quash the permission without any infringement of
our obligations under European law. But that is not the case here. The
Secretary of State did not comply with his basic obligation to consider whether
the UK machinery for implementation of the directive should be put in motion.
Conclusion
My lords, I would allow the appeal and quash the planning
permission and listed building consent granted by the Secretary of State.
LORD HOPE OF CRAIGHEAD: I agree.
LORD HUTTON: I agree.
LORD MILLETT: I agree.
Appeal allowed.
