R (on the application of Mellor) v Secretary of State for Communities and Local Government

Planning permission – Appellant seeking permission to develop hospital – Respondent determining that environmental impact assessment (EIA) not required – Respondent failing to give reasons for decision – National court making reference to European Court of Justice – Whether EC Council Directive 85/337 requiring member states to communicate to public reasons for not subjecting project to EIA – Preliminary ruling madeThe appellant applied for planning permission to develop a medium-secure hospital. The respondent secretary of state, having considered the Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999 (1999/293), took the view that an environmental impact assessment (EIA) was not required for the development. He did not provide any reasons for that decision.Permission for the appellant to seek judicial review of that decision was initially refused but was later granted on appeal. At the parties’ request, the Court of Appeal referred to the ECJ for a preliminary ruling as to whether, under article 4 of Council Directive 85/337, as amended by Directives 97/11 and 2003/35, the respondent had to inform the public of the reasons for determining that an EIA was unnecessary; and, if so, what principles governed that requirement: see [2008] EWCA 213; [2008] PLSCS 15.Held: A preliminary ruling was made.Under article 4 of Directive 85/337, a determination that it was unnecessary to subject a project that fell within Annex II to an EIA was not required to contain the reasons for the relevant administrative authority’s decision. However, if an interested party so requested, the authority was obliged to provide that party with the reasons for the determination or the relevant information and documents. On the other hand, if such a determination stated the reasons upon which it was based, it would be regarded as being sufficiently reasoned if those reasons, added to factors that had already been brought to the attention of interested parties, and supplemented by any necessary additional information that the national administration was required to provide to those interested parties at their request, enabled the interested parties to decide whether to appeal against the decision.An objective of Directive 85/337 was to introduce general principles for EIAs governing public and private projects that were likely to have a significant effect upon the environment, with a view to supplementing and co-ordinating development consent procedures. It provided that certain projects listed in Annex I had to be made subject to assessment.If an authority took the view that the characteristics of a project did not require it to be subjected to an EIA, its determination had to contain or be accompanied by all the information that made it possible to establish that it was based upon adequate screening, carried out in accordance with the requirements of the directive. It did not follow that a determination not to subject a project to an EIA must contain the reasons for that decision. However, third parties, as well as the administrative authorities concerned, had to be able to satisfy themselves that the competent authority had actually determined, under national law, whether an EIA was necessary. Furthermore, interested parties, as well as other national authorities concerned, had to be able to ensure, if necessary through legal action, compliance with the competent authority’s screening obligation. That requirement might be met by the possibility of bringing an action directly against the determination not to carry out an EIA.Effective judicial review, which had to be able to cover the legality of the reasons for the contested decision, presupposed in general that the court to which the matter was referred might require the authority to make public its reasons. However, where it was more particularly a question of securing the effective protection of a right conferred by EC law, interested parties should also be able to defend that right under the best possible conditions and to decide, with full knowledge of the relevant facts, whether there was any point in applying to the courts. Consequently, in such circumstances, the authority was under a duty to inform them of its reasons for the refusal, either in the decision itself or in a subsequent communication made at their request. Any subsequent communication might take the form, not only of an express statement of reasons but also of information and relevant documents made available in response to the request.Richard Harwood (instructed by Richard Buxton Environmental & Public Law, of Cambridge) appeared for the appellant; L Seeboruth (acting as agent) appeared for the UK government; P Oliver and J-B Laignelot (acting as agents) appeared for the European Commission.Eileen O’Grady, barrister