Berkeley v Secretary of State for the Environment Transport and the Regions and Another

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL, LORD HOFFMANN, LORD HOPE OF CRAIGHEAD, LORD HUTTON, LORD MILLETT
Judgment Date06 Jul 2000

[2000] UKHL J0706-1

HOUSE OF LORDS

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hope of Craighead

Lord Hutton

Lord Millett

Berkeley
(Appellants)
and
Secretary of State for the Environment

And Others

(Respondent)
LORD BINGHAM OF CORNHILL

My Lords,

1

I have had the benefit of reading in draft the opinion of my noble and learned friend Lord Hoffmann, with which I am in full agreement. I gratefully adopt his summary of the facts and his citation of the relevant materials.

2

The issue in these proceedings is whether the Secretary of State's grant of planning permission for development of the Fulham Football Club site at Craven Cottage should be quashed. There is much common ground between the parties' approach to that issue.

3

It is agreed that Council Directive (85/337/E.E.C.) confers a Community law right exercisable by persons such as the appellant. It is accepted that the Directive was correctly transposed into domestic law by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988. It is common ground that the Secretary of State did not consider whether the proposed development was an urban development project which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location so as to fall within Schedule 2 to the Regulations, that he should have considered that question (whatever his conclusion might have been if he had) and that he was in breach of regulation 4(2) in granting planning permission without considering it. There was also, I think, a breach of regulation 10(1) in failing to consider it, and such consideration was required by article 4.2 of the Directive. It is common ground that the Secretary of State's failure to consider the question cannot in law be justified or excused on the ground that the outcome (namely the grant of planning permission on the terms of the actual grant) would have been the same even if he had considered it. The parties agree that the Secretary of State's failure can in law be excused, if at all, only on the ground that there was, on the special and perhaps unusual facts of this particular case, substantial compliance with the requirements of the Directive and the Regulations. It is not, however, suggested that if the Secretary of State had considered the question and had formed the opinion that the proposed development was an urban development project which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location he could, otherwise than by giving an exemption direction under regulation 3(a), have lawfully waived the procedure laid down in the Regulations for assessing the environmental impact of the development on the ground that there had been or would be substantial compliance with the requirements of the Directive and the Regulations. It would, I think, be strange if the Secretary of State could lawfully achieve by inadvertence a result which he could not lawfully achieve if acting deliberately.

4

By virtue of regulation 25 the grant of planning permission in contravention of regulation 4 is to be treated for purposes of section 288 of the Town and Country Planning Act 1990 as action which is not within the powers of the Act. Even in a purely domestic context, the discretion of the court to do other than quash the relevant order or action where such excessive exercise of power is shown is very narrow. In the Community context, unless a violation is so negligible as to be truly de minimis and the prescribed procedure has in all essentials been followed, the discretion (if any exists) is narrower still: the duty laid on member states by article 10 of the E.C. Treaty, the obligation of national courts to ensure that Community rights are fully and effectively enforced, the strict conditions attached by article 2(3) of the Directive to exercise of the power to exempt and the absence of any power in the Secretary of State to waive compliance (otherwise than by way of exemption) with the requirements of the Regulations in the case of any urban development project which in his opinion would be likely to have significant effects on the environment by virtue of the factors mentioned, all point towards an order to quash as the proper response to a contravention such as admittedly occurred in this case. For reasons given in more detail by Lord Hoffmann, I do not in any event agree that there was substantial compliance with the requirements of the Directive and the Regulations in this case. It is quite true that consideration was given, over many years, to various schemes for developing this site and that the scheme for which permission was given was the subject of detailed, careful and informed consideration and wide consultation. But the cornerstone of the régime established by the Regulations is provision by the developer of an environmental statement as described in Schedule 3 to the Regulations, setting out (among other things) the data necessary to identify and assess the main effects which the development was likely to have on the environment. The developer provided no document which, in my view, met that requirement.

5

Differing with respect from the Court of Appeal, I conclude that this appeal should be allowed and the planning permission quashed.

LORD HOFFMANN

My Lords,

6

The Fulham Football Club's ground is sited on the left bank of the Thames between Hammersmith Bridge and Putney Bridge. The question in this appeal is whether a grant of planning permission by the Secretary of State for a redevelopment of the site should be quashed because he failed to consider whether there should have been an environmental impact assessment.

7

1. Environmental impact assessments

8

(a) European law

9

The environmental impact assessment ("EIA") is a procedure which was introduced to implement Council Directive of 27 June 1985 (85/337/E.E.C.) on the assessment of the effects of certain public and private projects on the environment. The Directive recites that -

"the best environmental policy consists in preventing the creation of pollution or nuisances at source, rather than subsequently trying to counteract their effects [and] affirm[s] the need to take effects on the environment into account at the earliest possible stage in all technical planning and decision-making processes …"

10

It goes on to recite that it therefore provides "for the implementation of procedures to evaluate such effects". The general principle is said to be that -

"Whereas development consent for public and private projects which are likely to have significant effects on the environment should be granted only after prior assessment of the likely significant environmental effects of these projects has been carried out; whereas this assessment must be conducted on the basis of the appropriate information supplied by the developer, which may be supplemented by the authorities and by the people who may be concerned by the project in question"

11

The recitals deal with the contents of the assessment in the following terms:

"Whereas, for projects which are subject to assessment, a certain minimal amount of information must be supplied, concerning the project and its effects;

Whereas the effects of a project on the environment must be assessed in order to take account of concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as a basic resource for life."

12

The primary obligation imposed up on Member States by the Directive is contained in article 2.1. It is to -

"adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects."

13

By article 2.2, the EIA procedure may be integrated into the existing planning procedures of the Member States.

14

Article 4 distinguishes between projects listed in Annex I, such as oil refineries, power stations and motorways, which are conclusively presumed to require an EIA and the wide variety of projects listed in Annex II, which may or may not require an EIA, depending upon whether the Member State considers that they are likely to have significant effects on the environment. In the case of a project falling within Annex II, the Member State must therefore consider whether or not it requires an EIA. But such consideration need not be entirely on a case by case basis. Article 4 permits Member States to specify certain projects as being subject to an assessment or establish criteria or thresholds for determining the question.

15

Article 5 deals with the contents of the EIA. By paragraph 1, Member States must adopt the necessary measures to ensure that "the developer supplies in an appropriate form the information specified in Annex III" so far as it is considered relevant and the developer can reasonably be required to compile it. Annex III specifies that there should be a description of the project and the aspects of the environment likely to be significantly affected, under a number of heads including fauna, flora, water, landscape and the inter-relationship between such factors. There must be a description of the measures envisaged to prevent, reduce or offset any significant adverse effects on the environment. And, finally, the developer must supply a summary of the information in non-technical language.

16

By article 6.1, Member States must take the measures necessary to ensure that authorities likely to be concerned by the project by reason of their environmental responsibilities are given an...

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