Commission of the European Communities v United Kingdom

European Community — Failure to fulfil obligations — Practice for issuing lawful development certificate in UK — Commission complaining that UK by-passing consent procedure laid down under Community law — Commission seeking declaration that UK failed to fulfil Community obligations — Whether action inadmissible — Action dismissed The European Commission received a complaint concerning the practice in the UK pursuant to section 191 of the Town and Country Planning Act 1990, for the issue of lawful development certificates (LDCs), in relation to a scrap yard that had been operating without planning permission or a waste licence and for which a number of LDCs had been issued. Following communications with the UK government, the Commission decided that the issue of LDCs could be considered as a means of bypassing the consent and environmental impact assessment (EIA) rocedures laid down by Directive 85/337. Following the UK’s failure to comply with its Community obligations under the directive, the Commission applied to the European Court of Justice for a declaration to that effect. An issue arose as to whether the action was admissible on the basis that the Commission had failed to provide a coherent and detailed exposition of the reasons that had led it to conclude that the UK had failed to fulfil one of its obligations. Held: The action was dismissed. The action was inadmissible since the Commission had not set out its complaints coherently and precisely, as required by Article 226 EC, so that the member state and the court might appreciate the exact scope of the alleged infringement. Both at the pre-litigation stage and during litigation, the Commission had concentrated upon the issue of LDCs in so far as it allowed the by-passing of procedures governing application for consent and EIA required by Directive 85/337 for projects likely to have significant effects upon the environment owing, inter alia, to their nature, size or location. The Commission had not put forward any complaints concerning the existence of time limits for taking enforcement action against development that did not comply with the national rules, although the introduction of LDCs was inseparable from the limitation rules. An LDC was issued under section 191 of the Act, in particular, when no enforcement action might then be taken against the uses or operations concerned, whether because they did not involve development or required planning permission or because the time for enforcement had expired. Thus the Commission had failed to satisfy the requirements of coherence and precision by putting forward only one aspect of a legal mechanism comprising two inseparable parts. F Simonetti and M Shotter, acting as agents, appeared for the claimant; Philip Sales and James Maurici (instructed by the Treasury Soliciotr), appeared for the defendant. Eileen O’Grady, barrister