R (on the application of London Historic Parks and Gardens Trust) v Secretary of State for Housing, Communities and Local Government – Town and country planning – Planning permission – Called-in application – Defendant secretary of state calling in planning application for determination – Claimant applying for judicial review of regulation 64(2) of Town and Country Planning (Environmental Impact Assessment) Regulations 2017 – Whether regulation failing to transpose requirements of directive on environmental impact assessment into English law – Whether handling arrangements for determination of application complying with regulation 64(2) – Application granted in part
The defendant secretary of state applied for planning permission for the proposed Holocaust Memorial with Learning Centre in Victoria Tower Gardens, London SW1, a Grade II registered park and garden immediately adjacent to the Palace of Westminster and Westminster Abbey Unesco World Heritage Site and to the Palace of Westminster itself, a Grade I listed building.
The defendant subsequently called the application in for his own determination, instead of by the local authority, pursuant to the power in section 77 of the Town and Country Planning Act 1990.
The claimant was a small charity with a principal object of preserving and enhancing the quality and integrity of London’s green open spaces. It was a statutory consultee for planning proposals affecting Registered Parks and Gardens. The claimant contended that the proposals represented an exceptionally serious intrusion into a very important green public open space.
Regulation 64(2) of the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 required that where a planning authority, or the secretary of state, put forward a planning proposal and would be responsible for determining its own proposal, it had to ensure that there was a functional separation, when performing any duty under the regulations, between the persons bringing forward a development proposal and the persons responsible for determining it.
The claimant applied by judicial review for a declaration that regulation 64(2) failed properly to transpose the requirements of article 9a of Directive 2011/92/EU on environmental impact assessment (the EIA Directive). If the court was satisfied that proper transposition had been achieved, a subsidiary issue arose whether the “handling arrangements” for determination of the planning application complied with regulation 64(2).
Held: The application was granted in part.
(1) The principle of legal certainty required a directive to be transposed by legal measures and principles so that the requirements were rooted in a source of legal authority and binding. Administrative measures could not be relied upon to overcome a failure to make any transposition of a directive into domestic law at all or a conflict between national law and a directive or a failure to include a requirement of a directive by showing that a system was in practice operated compatibly with the directive. A national legal framework did not need to contain provisions expressed in the same language as a directive, but it had to give full effect to the requirements of that directive in terms which were sufficiently clear and precise, so that any rights created were enforceable in national courts. Ultimately, how far national law was required to go depended on a proper understanding of the scope of the requirements laid down by the directive.
(2) The second limb of article 9a did not require that an independent body be set up but proceeded on the basis that the competent authority was also the developer, and not a body independent from the developer. The directive then required “an appropriate separation between conflicting functions” when the competent authority performed its duties under the EIA Directive.
In the present context, independence required: (i) that the functions of the competent authority under the directive be undertaken by an identified internal entity within the authority with the necessary resources and acting impartially and objectively; (ii) the prohibition of any person acting or assisting in the discharge of those functions from being involved in promoting or assisting in the promotion of the application for development consent and/or the development; (iii) the prohibition of any discussion or communication about the project or fund or the called-in application for planning permission between, on the one hand, the minister of state determining the application and any official assisting him in the discharge of the competent authority’s functions and, on the other, the secretary of state or any official or other person assisting in the promotion of the project or the called-in application or any other member of the government; and (iv) the prohibition of any person involved in promoting or assisting in the promotion of the application for development consent and/or the development from giving any instructions to, or putting any pressure upon, any person acting or assisting in the discharge of the functions of the competent authority, or from attempting to do so, in relation to those functions.
(3) The second limb of article 9a required an appropriate separation between conflicting functions. It did not mandate that the criteria for defining the appropriate level of independence be enshrined in legislation or a framework of legal rules. Regulation 64(2) required appropriate administrative arrangements to ensure functional separation. That was a proper transposition of the requirement in article 9a for appropriate separation to be implemented within the organisation of administrative competences. Accordingly, the second limb of article 9a had been properly transposed into English law by regulation 64(2) which satisfied the principle of legal certainty.
(4) The preparation or approval of the handling arrangements by the defendant or the permanent secretary did not involve a breach of article 9a or regulation 64(2). Those provisions accepted that appropriate arrangements would be made for functional separation in order to address the conflict of interest. However, the current version of the handling arrangements failed to refer to regulation 64(2) and required amendments. There had also been a failure to publish the document. Those requirements derived from the principle of legal certainty and were matters of substance. It was important to bring home to those to whom the arrangements applied that the document laid down a regime to comply with the defendant’s legal obligations under regulation 64(2), and that those obligations were enforceable in the courts. It was not to be treated as simply guidance and had to be published so that the public was aware that it set out the arrangements made by the defendant in order to comply with his legal obligations under regulation 64(2).
John Howell QC and Meyric Lewis (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the claimant; Timothy Mould QC and Anjoli Foster (instructed by the Government Legal Department) appeared for the defendant.
Eileen O’Grady, barrister
