EC Directive 85/337, as implemented by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 – Development involving alteration to part of Thames foreshore – Development allegedly posing ecological threat – Planning authority and Secretary of State granting permission without considering need for environmental assessment – Whether pre-grant consultation procedures amounted to acceptable equivalent of prescribed environmental impact procedure – Whether court had a discretion to uphold grant in any event – Planning permission quashed
By decision letter dated August 1996, the Secretary of State for the Environment granted planning permission for the provision of new all-seated stands for Fulham Football Club, together with the building of 142 riverside flats with parking facilities bounded by a new riverside wall and walk (the development). A feature of the development was the construction of a vertical embankment that would extend into the river. The decision was preceded by an eight-day public inquiry that allowed for the inspection, inter alia, of the planning authority’s statement of case, which referred to a comprehensive report by their planning officers, which in turn incorporated (by cross-reference) the views of various bodies who had been consulted, including the National Rivers Authority and the London Ecology Unit.
The decision was challenged by the appellant, Lady Dido Berkeley, the leader of a Fulham community group, whose concerns centred on the ecological consequences of replacing the natural sloping foreshore with the proposed embankment. Proceeding under section 288 of the Town and Country Planning Act 1990, the applicant contended that the decision was flawed by the Secretary of State’s failure to follow the environmental impact assessment (EIA) procedures required by EC Directive 85/337, as implemented by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988.
The challenge failed at first instance, and again before the Court of Appeal, where it was held that: (i) the steps taken in the consultation process were themselves sufficient compliance with the directive; and (ii) in any event relief should be refused in the court’s discretion, as the outcome would have been no different had the directive been followed to the letter (the discretionary ground). The appellant appealed to the House of Lords, where counsel for the Secretary of State elected, by way of concession, not to put his case on the discretionary ground.
It was common ground that: (i) the proposed development was an “urban development project” for the purpose of Schedule 2 to the regulations, and as such could not be entertained before the relevant authority had considered whether the developer should provide an environmental statement containing such information as was required by Schedule 3 to the regulations; and (ii) the Secretary of State’s failure could not be excused unless there was, on the facts, substantial compliance with the requirements of the directive and the regulations (the compliance issue), which was accordingly the only issue that fell to be determined.
Held: The appeal was allowed.
1. It had to be understood why the concession relating to the discretionary ground had been made correctly. As regards projects falling within Annex II of the directive (projects which may or may not require an EIA), there was no express requirement that the decision-maker should consider whether that category applied. However, construing the directive in the manner required in Marleasing SA v La Comercial Internacional de Alimentación SA (Case C106/89) [1990] ECR I-4135, it was not difficult to find an implied obligation to consider the matter: see World Wildlife Fund (WWF) v Autonome Provinz Bozen (Case C435/97) [2000] 1 CMLR 149. Once it had become arguable that the development was an urban development project, individuals affected by the development had a directly enforceable right to have the need for an EIA considered by the relevant authority, and not afterwards by a judge. On perceiving such a need, the authority were bound by the directive, which was essentially a procedural measure (see Commission of the European Communities v Germany (Case C431/92) [1995] ECR I-2189), not merely to have the necessary information, but to obtain it by means of the EIA procedure, an essential element of which was making the environmental statement prepared by the developer available to the public. As correctly stated in Environmental Assessment: a Guide to the Procedures (HMSO 1989) at p4, the objective was to enable the citizen to form his own judgment on the environmental issues, and to exercise his right to be heard: see Aannemersbedrijf PK Kraaijeveld BV v Gedeputeerde Staten van Zuid-Holland (Case C72/95) [1996] ECR I-5403.
2. By Regulation 25, the grant by the Secretary of State of a planning permission in contravention of Regulation 4 amounted, for the purpose of section 288 of the Town and Country Planning Act 1990, to a decision that has been taken outside the powers conferred by the 1990 Act. Although the court had a discretion in deciding whether to quash an ultra vires planning decision (see the terms of section 288(5)(b) of the Act), it was doubtful, given the terms of Regulation 25, whether the court could, consistently with its obligations under European law, exercise that discretion to uphold a planning permission which offended the directive. To do so would seem to conflict with its duty under Article 10 (ex Article 5) of the EC Treaty to ensure fulfilment of UK obligations under the treaty. Even at a domestic level, it was exceptional for a court to exercise its discretion not to quash an ultra vires decision: see per Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P&CR 343 at p353. The Secretary of State was accordingly right to concede that nothing less than substantial compliance with the directive could enable the present planning permission to be upheld.
3. In the light of the foregoing, the compliance issue had to be decided in favour of the appellant. The “paper chase” provided by the planning authority and the Secretary of State could not be treated as the equivalent of an environmental statement, which would have furnished a single and accessible compilation of the relevant environmental information, and a summary in non-technical language, at the very start of the application process. The respondent could not rely on Commission v Germany, as the procedure challenged in that case possessed all the essential features of the EIA procedure, which had not been incorporated into German domestic law at the material time.
Robert McCracken and Gregory Jones (instructed by Richard Buxton, of Cambridge) appeared for the appellant; David Elvin and James Maurici (instructed by the Treasury Solicitor) appeared for the respondent.
Alan Cooklin, barrister
