In Berkeley v Secretary of State for the Environment (No 1) [2001] 2 AC 603 the House of Lords concluded that the discretion of the court not to quash a decision in the case of a breach of European law was a very narrow one, in light of its obligations under European law. Consequently, it refused to uphold a planning permission that had been granted contrary to the provisions of the EIA Directive. Their lordships held that they were not entitled, retrospectively, to dispense with the requirement of an environmental impact assessment on the ground that the outcome would have been the same, had there been no breach.
However, there has since been a move away from that strict approach, and in Walton v The Scottish Ministers [2012] UKSC 44, Lord Carnwath and Lord Hope both stated that where there has been no substantial prejudice caused to the claimant by a breach of an EU Directive, and its transposing regulations, the court has a discretion not to quash the relevant decision. The Justices made it clear that the decision in Berkeley did not support a universal prescription that any breach of EU law required the automatic quashing of the act or decision in question. The situation, therefore, has moved closer to that obtaining under domestic law.
In Kendall v Rochford District Council [2014] EWHC 3866 (Admin), the claimant challenged the validity, under section 113 of the Planning and Compulsory Purchase Act 2004, of an allocations plan adopted by the defendant authority. In particular, she contended that there had been a failure to comply with article 6 of the SEA Directive and with regulation 13 of its transposing regulations, namely the Environmental Assessment of Plans and Programmes Regulations 2004. The court concluded, on the facts, that there had been a breach of the provisions of each.
Adopting the approach taken in Walton, the court held that this was not a case where it would be appropriate, or proportionate, to quash the allocations plan. This was not a case in which any real prejudice, let alone substantial prejudice, had been caused either to the interests of the claimant or to those of anyone else. They had, in substance, been able to enjoy the rights conferred on them by EU law. Furthermore, it could not be realistically concluded that the outcome of the plan making process would have been other than exactly the same, if no breach of the SEA Directive and its transposing regulations had occurred.
John Martin is a planning law consultant
