Berkeley v Secretary of State for the Environment Transport and the Regions and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCHIEMANN |
| Judgment Date | 29 June 2001 |
| Neutral Citation | [2001] EWCA Civ 1012 |
| Docket Number | Case No: C/2000/3329 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 June 2001 |
[2001] EWCA Civ 1012
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Mr. Duncan Ouseley Q.C. (sitting as a Deputy High Court Judge of the High Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Schiemann
Lord Justice Kay and
Sir Murray Stuart-smith
Case No: C/2000/3329
Eleanor SHARPSTON Q.C. and Richard HARWOOD (instructed by Richard Buxton for the Appellant)
Richard DRABBLE Q.C. and James MAURICI (instructed by the Treasury Solicitor for the first respondent)
Anthony DINKIN Q.C. and Richard GROUND (instructed by Gellhorn, Cooney Laughasne, for the second respondent)
This is the judgment of the Court
Introduction
The carrying out of development on land usually has some adverse consequences for somebody. Therefore a series of planning acts and regulations have enacted that before development is carried out planning permission must be obtained from the local planning authority or the relevant government minister and have provided procedures for consultation with various interests before planning permission is granted. After that consultation value judgments have to be made as to whether or not permission should be granted.
In the nature of things a balance has to be struck between the desirability of securing that the decision maker has, after consulting every conceivably interested person, before him all possibly relevant information before he comes to a decision and the desirability of not making the process of obtaining planning permission unduly lengthy, expensive and burdensome for the applicant, the decision taker and all the possible consultees. If every application is made subject to an elaborate process of consultation then much time, energy and money will be consumed without significant correlative benefit.
As a result of Council Directives 85/337/EEC as amended by 97/11/EC an attempt has been made to establish guidelines which divide applications into two classes. Those which are of sufficient importance to require an elaborate procedure of consultation and investigation ("environmental impact assessment procedures") and those which require only the normal procedures. The guidelines established in England do not require value judgments to be made at the preliminary stage of establishing whether the application falls into a class for which the assessment procedures are mandatory. Thus the planning authorities can easily see whether or not an application calls for the environmental impact assessment procedures or whether it can be treated as a routine application to be decided after the normal procedures have been followed. The main issue in the appeal is whether it was permissible for this country to establish guidelines which can be so mechanically applied.
The appeal highlights the presence of two desiderata : first, that the decision taker be free to give maximum amount of care to those applications whose grant or refusal will have a major impact; second, that resources are not spent disproportionately on huge investigations into applications with only a minor impact. One obvious difficulty is that it may be impossible to be sure whether something will have a major impact without first carrying out a detailed investigation. The underlying subject of the present appeal is the procedure in the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 for separating the major impact applications (known as "EIA applications") from those giving rise only to a lesser impact.
The Judge held that the relevant regulations provide that urban development projects whose area does not exceed 0.5 of a hectare fall within a class which does not call for the environmental assessment procedure to be followed. The applications with which the judge was concerned are two applications to develop a site by the Thames in Mortlake by erecting a building containing some 30 one or two bedroom flats. For present purposes no distinction need be drawn between the two applications and in this judgment we shall treat them as if there were only one.
On appeal, an Inspector appointed to decide planning appeals granted planning permissions without an Environmental Impact Assessment ("EIA") having been carried out. Lady Berkeley contends that he had no power to do so. That contention was rejected by the judge. The judge held that the application was not an EIA application.
The 1999 Regulations to which we have referred were made pursuant to powers conferred by s.2(2) of the European Communities Act 1972 and s.71A of the Town and Country Planning Act 1990. The judge held that, construing the Regulations without regard to the European dimension it was clear that the application was not an EIA application. The judge rightly accepted that the Regulations had to comply with Community Law as contained in the directives; they had to be Community Law compliant and he held that they were. He held that even construing the Regulations taking account of the relevant Council Directives the answer remained the same. This was not an EIA application.
Eleanor Sharpston Q.C., who appears for Lady Berkeley, makes two submissions in the alternative. First, she submits that if one takes the Directives into account in construing the Regulations then the Inspector erred in not referring to the Secretary of State for decision the question whether or not the application was an EIA application. Second, she submits that if she be wrong in her first submission, then this country has not properly transposed the Directive into national law. It is common ground that the appellant has sufficient standing.
Since her second submission was not made before the judge and does not clearly appear in her grounds of appeal she applies for permission to amend those grounds so as to raise this point. The granting of permission to amend is not opposed by the Secretary of State and the opposition made by Anthony Dinkin Q.C. on behalf of the landowners was not forcefully pursued once it became clear that the grant of permission would not lead to further delay. It is clearly in the public interest that it be established whether the United Kingdom is in breach of its Community obligations so that, if it is, then this can be rectified. In our judgment no prejudice to anyone follows from the point being decided in the present appeal. we grant permission to amend.
We propose now to set out the relevant provisions of the Directive, to refer to the relevant case law of the ECJ, to set out the relevant provisions of the Regulations and then to set out the submissions and my conclusions on them.
The Directives and their case law
Council Directives 85/337/EEC as amended by 97/11/EC
Article 1
(1) This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.
Article 2
(1) Member States shall 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 a requirement for development consent and an assessment with regard to their effects.
These projects are defined in Article 4.
Article 3
The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:
human beings, fauna and flora;
soil, water, air, climate and the landscape;
material assets and the cultural heritage;
the interaction between the factors mentioned in the first, second and third indents.
Article 4
1. …, projects listed in Annex 1 shall be made subject to an
assessment in accordance with Articles 5 to 10.
2. …., projects listed in Annex II, the Member States shall
determine through:
(a) a case-by-case examination, or
(b) thresholds or criteria set by the Member State
whether the project shall be made subject to an assessment in accordance with Articles 5 to 10.
Member States may decide to apply both procedures referred to in (a) and (b).
When a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account.
[Annex I lists a number of projects which can be readily identified either by description – such as installations for reprocessing of irradiated nuclear fuel – or by measurement – such as construction of airports with a basic runway length of 2,100 metres or more. Annex II lists a number of projects purely by description of which the only presently relevant one is
10. Infrastructure projects
(b) Urban development projects, including the construction of shopping centres and car parks.]
It is convenient to insert Annex III at this point.
ANNEX III
1. Characteristics of projects.
The characteristics of projects must be considered having regard, in particular, to:
the size of the project;
the cumulation with other projects;
the use of natural resources;
the production of waster;
the pollution and nuisances;
the risk of accidents, having regard in particular to substances or technologies used.
2. Location of projects
The environmental sensitivity of geographical areas likely to be affected by projects must...
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