U.K. -- Berkeley v. Secretary of State for the Environment(2000.06.06)(Enforcement of EIA`s)

House of Lords

Berkeley

v.

Secretary of State for the Environment and another

2000 June 6, 7; July 6

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton and Lord Millett

Town Planning - Development - Environmental assessment - Urban development project - Proposed stadium redevelopment encroaching on river bank - Secretary of State holding public inquiry where documents available setting out environmental issues - Failure by Secretary of State to considerwhether environmental assessment procedure necessary - Whether subsequent grant of planningpermission ultra vires - Whether objectives of environmental assessment met - Court`s discretion -Town and Country Planning Act 1990 (c 8), s 288(5)(b) - Town and Country Planning (Assessment ofEnvironmental Effects) Regulations 1988 (SI 1988 No 1199), reg 4(2) - Council Directive(85/337/EEC), art 2(1)

A local planning authority received an application by a football club for planning permission and listed buildingconsent to rebuild part of its stadium on the bank of the River Thames. The proposal involved the creation ofa riverside walkway which would encroach slightly into the river and involve the re-modelling of a retaining wall witheffect on the river`s habitat. The application was advertised and a large number of representations were received.The local authority officers` report to the planning sub-committee, having set out those representations, whichincluded detailed information as to the effect of the project on the river from the National Rivers Authority andfrom an ecology group, recommended that the application be granted. The application was thereafter called in bythe Secretary of State and a public inquiry held, where the officers` report and other relevant material was madeavailable for inspection by those members of the public who attended. The Secretary of State, having receivedthe inquiry inspector`s report, granted permission for the project to proceed subject to a number of conditions includingthe construction of a wetland shelf. The applicant, who had objected to the project and attended the inquiry, made anapplication under section 288(5)(b) of the Town and Country Planning Act 19901 for the High Court to exercise itsdiscretion to quash the permission on the ground that the Secretary of State had failed to act in accordance withregulation 4(2) of the Town and Country Planning (Assessment of Environmental Effects) Regulations 19882which, in implementation of the requirement in article 2(1) of Council Directive (85/337/EEC)3 that member states adoptmeasures to ensure that projects likely to have significant effects on the environment were made subject to anassessment of those effects, provided that planning permission was not to be granted in respect of applicationsfalling within Schedule 1 or Schedule 2 to the Regulations, which included applications for urbandevelopment projects likely to have significant effects on the environment, unless account had been taken ofinformation provided by the developer by way of an environmental statement prepared in accordance with

1 Town and Country Planning Act 1990, s 288(5): "On any application under this section the High Court ... (b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that order oraction."

2 Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, reg 4(2): "The local planning authorityor the Secretary of State or an inspector shall not grant planning permission pursuant to [a Schedule 1 or Schedule 2 application] ... unless they have firsttaken the environmental information [the environmental statement prepared by the applicant under Schedule 3 and anyrepresentations made in respect of it] into consideration ..."
3 Council Directive (85/337/EEC), art 2(1): see post, p 609F-G.

Schedule 3 and any representations made in response to that statement. The judge declined to quash the decision anddismissed the motion. The Court of Appeal, dismissing the applicant`s appeal, held that although the Secretary ofState should have considered whether the proposed development was an urban development project within Schedule 2 and sowas in breach of regulation 4(2), since on the facts of the case an environmental assessment would have made nodifference to the quality of the decision or the result, the court would exercise its discretion under section 288(5)(b) ofthe 1990 Act to decline to quash the decision.

On the applicant`s appeal—

Held, allowing the appeal, that regulation 4(2) of the Town and Country Planning (Assessment of EnvironmentalEffects) Regulations 1988, on its plain meaning and in accordance with the purpose of Council Directive(85/337/EEC), required the Secretary of State, when in receipt of a planning application, to give considerationas to whether the proposed development fell within the ambit of Schedule 1 or Schedule 2 to theRegulations so as to require the assessment necessary under the Directive for projects likely to have significanteffects on the environment; that since the Directive required not only that decisions as to such projectswere made on the basis of full information but that the information be obtained by means of a particularprocedure, namely an environmental impact assessment, as provided for by the Regulations and includingthe requirement for a statement as described in Schedule 3, it was not open to the court to dispenseretrospectively with that requirement on the ground that the outcome would have been the same; that, savepossibly where the flawed procedure had in fact amounted to a substantial compliance with the Directive, the courtought not to exercise its discretion under section 288(5)(b) of the 1990 Act to uphold a planning permissiongranted contrary to the provisions of the Directive, since to do so would be inconsistent with the court`sobligations under European law to enforce Community rights; and that, accordingly, since in any event themaking available at the public inquiry of a disparate collection of documents produced by parties other than thedeveloper had not amounted to substantial compliance with the terms of the Directive, the Secretary of State`s ultravires decision to proceed without consideration of the need for an environmental assessment under theRegulations could not be upheld and the grant of planning permission would be quashed (post, pp 607D-E, 608C-G,614A-B, 615D,616C-F, 617E-F).

Commission of the European Communities v Federal Republic of Germany (Case C-431/92) [1995] ECR I-2189, ECJdistinguished.
Decision of the Court of Appeal [1998] 3 PLR 39 reversed.

The following cases are referred to in the opinion of Lord Hoffmann

Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P & CR 343, CA
Commission of the European Communities v Federal Republic of Germany (Case C-431/92) [1995] ECR I-2189, ECJ
Kraaijeveld BV, Aannemersbedrijf P K v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] ECR I-5403, ECJ
Marleasing SA v La Comercial Internaciónal de Alimentación SA (Case C-106/89) [1990] ECR I-4135, ECJ
R v North Yorkshire County Council, Ex p Brown[2000] 1 AC 397; [1999] 2 WLR 452; [1999] 1 All ER 969, HL(E)
World Wildlife Fund (WWF) v Autonome Provinz Bozen (Case C-435/97) [2000] 1 CMLR 149, ECJ

The following additional cases were cited in argument

Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320; [1965] 3 All ER 371, CA
Bund Naturschutz in Bayern eV v Freistaat Bayern (Case C-396/92) [1994] ECR I-3717, ECJ
CIA Security International SA v Signalson SA (Case C-194/94) [1996] ECR I-2201; [1996] All ER(EC) 557, ECJ
Commission of the European Communities v Italian Republic(Case C-58/90) [1991] ECR 4193, ECJ
Fratelli Costanzo SpA v Comune di Milano (Case C-103/88) [1989] ECR 1839, ECJ
R v Medicines Control Agency, Ex p Smith & Nephew Pharmaceuticals Ltd (Case C-201/94) [1996] ECR I-5819, ECJ
R v Rochdale Metropolitan Borough Council, Ex p Tew[1999] 3 PLR 74
van Schijndel v Stichting Pensioenfonds voor Fysiotherapeuten (Joined Cases C-430/93 and C-431/93) [1995] ECR I-4705,ECJ

APPEAL from the Court of Appeal

This was an appeal, by leave of the House of Lords (Lord Browne-Wilkinson, Lord Hope of Craighead and LordHutton), by the applicant, Lady Berkeley, from the order of the Court of Appeal (Nourse, Pill and Thorpe LJJ)upholding the decision of Tucker J on 26 March 1997 to dismiss her originating motion, brought pursuant tosection 288 of the Town and Country Planning Act 1990, seeking to quash the decision letter of the Secretary ofState for the Environment dated 16 August 1996 which had granted planning permission and listed buildingconsent to Fulham Football Club for the redevelopment of its stadium at Stevenage Road, London SW6.

The facts are stated in the opinion of Lord Hoffmann.

Robert McCracken and Gregory Jones for the applicant. Member states are required by Council Directive of27 June 1985 (85/337/EEC) to take the measures necessary to determine whether urban development projectsare likely to have significant effects on the environment and, if so, to ensure that they are subject to theformal procedure of environmental assessment before granting development consent. EnvironmentalAssessment: A Guide to the Procedures (HMSO 1989) explains the importance of the procedure.The provisions of the Directive are directly enforceable by individuals: World Wildlife Fund (WWF) vAutonome Provinz Bozen (Case C-435/97) [2000] 1 CMLR 149, 177-178, paras 69-71. In so far as theDirective is not adequately transposed into legislation it must be enforced by the courts of the memberstates: see Commission of the European Communities v Federal Republic of Germany (Case C-431/92) [1995] ECR I-2189 and Kraaijeveld BV, Aannemersbedrijf PK v Gedeputeerde Staten van Zuid-Holland (Case C-72/95) [1996] ECR I-5403. Where there is transposing legislation it must be construed, so faras possible, so as to achieve the purpose of the Directive: Marleasing SA v La Comercial Internacionalde Alimentación SA (Case C-106/89) [1990] ECR I-4135.

The Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (SI 1988/1199) wereintended to transpose the Directive by integrating them into the existing procedures for assessing planningapplications. Regulation 4(2) prohibits the planning authority from granting planning permission to aqualifying project without taking into account the "environmental information" as defined in regulation 2 andincluding a developer`s environmental statement, prepared in accordance with Schedule 3, and the public`sresponse to it. There must be public participation in the decision-making process: R v Rochdale Metropolitan Borough Council, Ex p Tew [1993] 3PLR 74. The Directive and the Regulations require the adoption of a particular decision-making procedure. [Referencewas made to Bund Naturschutz in Bayern eV v Freistaat Bayern (Case C-396/92)[1994] ECR I-3717, 3743.]

The discretion under section 288(5)(b) of the Town and Country Planning Act 1990 is limited as a matter ofdomestic law (see Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990)61 P & CR 343) and cannot be exercised where there is a breach of a state obligation and infringement of a correlativeright of an individual deriving from the EC Treaty. The duty to rescind provisions which are contrary toEC law applies to development consents granted in breach of the obligations derived from the Directive: seeKraaijeveld(Case C-72/95) [1996] ECR I-5403, 5453, para 62. Administrative decisions must be annullednotwithstanding any prejudice to the interests of those who before the annulment had acquired legal rightsor other benefits: see Fratelli Costanzo SpA v Comune di Milano (Case C-103/88) [1989] ECR 1839 andR v Medicines Control Agency, Ex p Smith & Nephew Pharmaceuticals Ltd (Case C-201/94) [1996] ECR I-5819.

A failure to quash would be contrary to the principles of effectiveness and certainty of European Community Law.Domestic courts cannot be permitted to derogate from the domestic legislation transposing a Directive byasserting that other procedures achieved the same objective: see Commission of the European Communities vItalian Republic (Case C-58/90) [1991] ECR 4193, 4202, para 12 and CIA Security International SA vSignalson SA and Securitel SPRL (Case C-194/94) [1996] ECR I-2201, 2246-2247, para 48. In any event, the Court ofAppeal was wrong to assume that the decision-making process adopted complied with the required proceduresso as to amount to substantial compliance with the Directive.

David Elvin QC and James Maurici for the Secretary of State. Although the Secretary of State did not considerregulation 4(2) of the 1988 Regulations, the Court should exercise its discretion not to quash on the basisthat because of the information available to him there was in substance compliance with the objects ofthe Directive and the Regulations: see Commission of the European Communities v FederalRepublic of Germany (Case C-431/92)[1995] ECR I-2189, 2225-2226, paras 41-45.

Under section 288(5)(b) of the 1990 Act the court has a discretion not to quash a decision made in breach of aprocedural requirement: see Ashbridge Investments Ltd v Minister of Housing and Local Government [1965]1 WLR 1320, 1326. That discretion ought not to be restricted because it is exercised in respect of a breach of aprovision derived from EC law. The Directive has been fully transposed into English law. Where a procedurehas been set up by the national legislation, the application of that procedure to the specific circumstances of each caseis a matter for the national courts: see World Wildlife Fund (WWF) v Autonome Provinz Bozen (Case C-435/97) [2000] 1 CMLR 149, 171-173, paras 32-33, 42-43. In any event, the exercise of the discretion not toquash the decision on the ground of there having been substantial compliance with the Directive meets therequirements of EC law. It complies with the need for member states to secure the efficacy of EC law and to ensure that individuals can exercise their EC law rights: see van Schijndel vStichting Pensionfonds voor Fysiotherapeuten (Joined Cases C-430/93 and C-431/93) [1995] ECR I-4705,4715-4716, paras 27-29.

The purpose of the Regulations and the Directive is to ensure that relevant environmental information is providedso that fully informed decision can be made having regard to the likely environmental effects. Consultation with thepublic can take place by means of a public inquiry: see article 6(3) of the Directive. All information whichwould have been contained in an environmental statement was before the Inquiry (which lasted eight days) and the pre-inquiry procedures (including the application process before the local authority), the application consultation processand the inquiry hearing itself afforded ample opportunities for interested parties to be consulted and presentrelevant environmental information to the Inspector and the Secretary of State. It cannot be said that themanner in which the material was presented caused any significant difficulties to the public. There is no reasonto believe that the absence of an environmental impact assessment could have made a difference in thecase of a widely-publicised and well-known development of famous site.
McCracken replied.

The club did not appear and were not represented.

Their Lordships took time for consideration.

6 July. LORD BINGHAM OF CORNHILL
My Lords, 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 therelevant materials.

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

It is agreed that Council Directive (85/337/EEC) confers a Community law right exercisable by persons such asthe applicant. It is accepted that the Directive was correctly transposed into domestic law by the Town and CountryPlanning (Assessment of Environmental Effects) Regulations 1988. It is common ground that theSecretary of State did not consider whether the proposed development was an urban development projectwhich would be likely to have significant effects on the environment by virtue of factors such as its nature, size orlocation so as to fall within Schedule 2 to the Regulations, that he should have considered that question (whatever hisconclusion might have been if he had) and that he was in breach of regulation 4(2) in granting planningpermission without considering it. There was also, I think, a breach of regulation 10(1) in failing toconsider it, and such consideration was required by article 4(2) of the Directive. It is common ground that the Secretary ofState`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 evenif 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 withthe requirements of the Directive and the Regulations. It is not, however, suggested that if the Secretary ofState had considered the question and had formed the opinion that the proposed development was an urbandevelopment project which would be likely to have significant effects on the environment by virtue of factorssuch as its nature, size or location he could, otherwise than by giving an exemption direction under regulation3(a), have lawfully waived the procedure laid down in the Regulations for assessing the environmentalimpact of the development on the ground that there had been or would be substantial compliance withthe requirements of the Directive and the Regulations. It would, I think, be strange if the Secretary of Statecould lawfully achieve by inadvertence a result which he could not lawfully achieve if acting deliberately.

By virtue of regulation 25 of the Regulations the grant of planning permission in contravention of regulation 4 is tobe treated for purposes of section 288 of the Town and Country Planning Act 1990 as action which is not withinthe powers of the Act. Even in a purely domestic context, the discretion of the court to do other than quashthe relevant order or action where such excessive exercise of power is shown is very narrow. In theCommunity context, unless a violation is so negligible as to be truly de minimis and the prescribed procedure hasin all essentials been followed, the discretion (if any exists) is narrower still: the duty laid on member states byarticle 10 of the EC Treaty, the obligation of national courts to ensure that Community rights are fully andeffectively enforced, the strict conditions attached by article 2(3) of the Directive to exercise of the power toexempt and the absence of any power in the Secretary of State to waive compliance (otherwise than by way ofexemption) with the requirements of the Regulations in the case of any urban development project which in hisopinion would be likely to have significant effects on the environment by virtue of the factors mentioned, all pointtowards 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 substantialcompliance with the requirements of the Directive and the Regulations in this case. It is quite true thatconsideration was given, over many years, to various schemes for developing this site and that the scheme forwhich permission was given was the subject of detailed, careful and informed consideration and wideconsultation. But the cornerstone of the regime established by the Regulations is provision by the developer ofan environmental statement as described in Schedule 3 to the Regulations, setting out (among other things) thedata necessary to identify and assess the main effects which the development was likely to have on theenvironment. The developer provided no document which, in my view, met that requirement.

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

LORD HOFFMANN My Lords, the Fulham Football Club`s ground is sited on the Middlesex bank of the Thamesbetween Hammersmith Bridge and Putney Bridge. The question in this appeal is whether a grant ofplanning 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 impactassessment.

1. Environmental impact assessments

(a) European law

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

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

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

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

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 besupplied, 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 toprotect human health, to contribute by means of a better environment to the quality of life, to ensuremaintenance of the diversity of species and to maintain the reproductive capacity of the ecosystem as abasic resource for life."

The primary obligation imposed upon member states by the Directive is contained in article 2(1). It is to "adopt allmeasures necessary to ensure that, before consent is given, projects likely to have significant effects on theenvironment by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard totheir effects". By article 2(2) the EIA procedure may be integrated into the existing planning procedures of themember states.

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 likelyto have significant effects on the environment. In the case of a project falling within Annex II, the memberstate 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 beingsubject to an assessment or establish criteria or thresholds for determining the question.

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

By article 6(1) member states must take the measures necessary to ensure that authorities likely to be concernedby the project by reason of their environmental responsibilities are given an opportunity to express anopinion. Article 6(2) requires member states to ensure that the application for development consent and theinformation gathered pursuant to article 5 is made available to the public and the public must be given theopportunity to express an opinion before the project is initiated. By article 6(3) the detailed arrangements forsuch information and consultation is left to the member states.

(b) Domestic law

The United Kingdom implemented the Directive by the Town and Country Planning (Assessment of EnvironmentalEffects) Regulations 1988 ("the Regulations"), made under section 2(2) of the EuropeanCommunities Act 1972. The categories of development listed in Annexes I and II of the Directive are reproduced in Schedules1 and 2 to the Regulations. A "Schedule 2 application" is defined as an application for planning permission for adevelopment specified in Schedule 2 "which would be likely to have significant effects on the environment byvirtue of factors such as its nature, size or location". A Schedule 2 application must be accompanied by an"environmental statement" in accordance with Schedule 3, which reproduces the contents of Annex III of theDirective. By regulation 12B of the Town and Country Planning General Development Order 1988 (SI 1988No 1813) a notice of the application, containing a statement as to where copies of the environmental statement can beobtained, must be displayed at the site and published in a local newspaper.

The question of whether an application is or is not a Schedule 2 application may be determined pursuant toregulation 2(2) by a direction or statement of the Secretary of State. In the absence of such a direction thequestion is left to be determined in the first instance by the opinion of the local planning authority. Butregulation 10 provides that if an application without an environmental statement is referred to the Secretary of State fordecision and it appears to him to be a Schedule 2 application, he must notify the applicant that an environmentalstatement is required.

2. The planning applications

The redevelopment of the Fulham Football Club ground has been under consideration for a long time. Theclubhouse and the grandstand and its turnstiles date from the beginning of the last century. They are in factlisted as being of special architectural or historic interest. But their facilities are out of date. The club wants tobuild a new stadium which incorporates and improves the listed buildings and to finance the project by building ablock of flats on its boundary overlooking the river. Public inquiries into applications for similar developmentswere held in 1990 and 1992 and in each case the application was refused. In 1993 there was anotherpublic inquiry into the unitary development plan put forward by the local planning authority (Hammersmithand Fulham London Borough Council) which contained policies relating specifically to the site. Theplan was adopted in 1994.

In 1994 the club applied for planning permission and listed building consent for a development which, after somerevision, became the scheme which is the subject matter of the present appeal. An environmental statementdid not accompany the applications and the local planning authority was not asked to express an opinionon whether one was required. But the application was advertised as an ordinary application andrepresentations were received from a large number of local residents.

One of the features of the scheme was the construction of a walkway along the river bank beneath the proposedflats. The Middlesex bank along that part of Fulham Reach has a sloping concrete retaining wall facedwith blocks at its base. The proposal was to replace this with a vertical wall supporting the walkway. Thelocal planning authority asked the advice of an organisation called the London Ecology Unit on this aspect ofthe scheme. The unit advised that the embankment would for some of its length encroach slightly onto the riverbedand that the loss of the sloping wall would be damaging to the habitats of plants, invertebrates, fish and birds in theriver. It therefore recommended that the application be refused.

The local planning authority also consulted with a large number of other organisations, including the National RiversAuthority, which was at that time the statutory body responsible for conservation issues concerning theThames. The authority was at first opposed to the scheme for reasons similar to those of the London EcologyUnit. Eventually, however, it agreed to withdraw its opposition on condition that the club built a wetlandshelf planted with reeds along the intertidal foreshore. The London Ecology Unit did not think that thiswould be an adequate safeguard or compensation. It remained strongly against the proposal.

The planning department of the local planning authority prepared a report for the planning applications andtransport sub-committee which was presented on 7 June 1995. It is a lengthy and impressive document, summarising theviews of all the parties who had made representations or been consulted. It listed as "background papers" therepresentations themselves, including the letters from the National Rivers Authority and the London EcologyUnit. It weighed up the advantages and disadvantages of the scheme. On the question of the riverecology, it said that "the slight encroachment into the river is compensated for by an improved habitat fornature conservation". Subject to the various conditions specified, it recommended that planning permission and listed building consent be granted.

3. The public inquiry

On 9 August 1995 the Secretary of State decided to call in the applications for his own determination after a publicinquiry "in order to assess the proposed housing density impact on car parking in the area and the impact ofthe proposed development on the River Thames". He did not, however, require the applicant to produce anenvironmental statement pursuant to regulation 10 of the Regulations.

Pursuant to rule 6 of the Town and Country Planning (Inquiries Procedure) Rules 1992 (SI 1992 No 2038) theplanning authority produced a statement of its case supporting the application in September 1995. It referredfor detailed reasons to the officers` report to the planning sub-committee of 7 June 1995. The club`s statement ofcase, produced a month later, contained numerous cross-references to that of the planning authority.

The inquiry was held in Fulham Town Hall for eight days commencing on 27 February 1996. Leading counselrepresented the club and the planning authority. The club called witnesses to deal with, among other things,the effect of the development on the river ecology. A local residents` association were also represented bycounsel and she called an ecological and environmental consultant to give evidence in opposition. The proofs ofevidence of proposed witnesses were made available at a "library table" at the inquiry. A number of local andother people appeared in person.

4. The decision

The inspector delivered his report in May 1996 recommending that subject to a number of conditions, such as theconstruction of the wetland shelf, planning permission should be granted. By a letter dated 15 August 1996 theSecretary of State accepted the recommendation and granted permission.

5. The application to quash

The applicant Dido Berkeley lives in a house near the site. She has taken a course on ecology and was concernedabout the effect of the development on the diversity of species in the Thames. She was one of thepeople who wrote to the Secretary of State urging him to call in the application and the terms of her letterindicate that she had seen the officers` report to the planning sub-committee. Before the inquiry she spoke toa number of people whom she thought might have relevant information. The responsible officer at the localplanning authority was helpful and directed her to the letters on file from the National Rivers Authority and theLondon Ecology Unit. She appeared in person at the inquiry and submitted a written statement.

Regulation 4(2) of the Regulations provides that the Secretary of State shall not grant planning permission pursuantto a Schedule 2 application unless the information obtained by an EIA has been taken into consideration.Regulation 25 provides that the grant of planning permission in contravention of regulation 4 shall, forthe purposes of section 288 of the Town and Country Planning Act 1990, be taken to be outside the powers of the Act. Section 288 provides that a person aggrieved by an order to which the section applies (including a grant ofplanning permission) who wishes to question its validity on the ground that it is not within the powers of the Actmay apply to the High Court. By subsection 5(b) the High Court, if so satisfied, may quash the permission.

On 25 September 1995, after the grant of planning permission by the Secretary of State, Lady Berkeley issued anapplication under section 288 of the 1990 Act to quash the grant of planning permission on the ground, amongothers, that it was ultra vires because no EIA had been undertaken. It came before Tucker J, whodismissed it. The Court of Appeal (Nourse, Pill and Thorpe LJJ) [1998] 3 PLR 39 upheld his decision. Lady Berkeleyappeals against that decision to your Lordships` House.

6. The issues

During the course of the hearings before the judge, the Court of Appeal and your Lordships, the issues have beenprogressively narrowed, so that there is now a good deal of common ground between the parties. Before thejudge, Lady Berkeley contended that the grant of permission was invalid for a number of other reasons. Thesehave not been pursued. The club (but not the Secretary of State) argued before the judge that upon the trueconstruction of the Regulations, no EIA was required. The judge accepted this submission. The Court ofAppeal held that the judge was wrong to make such a finding. Before your Lordships, Mr Elvin, who appearedas counsel for the Secretary of State, accepted that the Court of Appeal was right and that the failure of both theplanning authority and the Secretary of State to consider whether an EIA should be required made the grant ofplanning permission unlawful.

The judge said that, in the alternative, even if an EIA should have been required, he would as a matter of discretionrefuse to quash the permission. The reason was that in his opinion the absence of the EIA "had no effecton the outcome of the inquiry and could not possibly have done so". It was on this ground that the Court ofAppeal upheld his decision. Pill LJ said, at p 53, that he was unpersuaded that an EIA "could have had anyeffect on the course of events or was prejudicial to objectors or the quality of the decision". Thorpe LJ said, at p 54, thatthe existence of the discretion "necessarily entails some review of the probable outcome had the properprocedures been observed" and that the procedures actually adopted, though flawed, were "thorough andeffective to enable the inspector to make a comprehensive judgment on all the environmental issues affectingthe Thames".

Before your Lordships, Mr Elvin has not attempted to support this reasoning. He accepts that the fact that a courtis satisfied that an EIA would have made no difference to the outcome is not a sufficient reason for deciding,as a matter of discretion, not to quash the decision. The argument which he submitted to your Lordshipswas a different one, namely that there had on the facts been substantial compliance with therequirements of the Directive. So the narrow issue argued before your Lordships was whether the objectives of the Directiveas transposed into domestic law by the Regulations had been substantially satisfied.

Although it was a matter of concession that the grant of planning permission was ultra vires and that it could not bevalidated by a court as a matter of discretion merely on the ground that the outcome would have been the same, these points are of suchimportance that I think I should say briefly why I think that Mr Elvin was right to concede them.

7. Why was the planning permission ultra vires?

The primary obligation under the Directive, under article 2(1), is for a member state to require an EIA beforeconsent is given in every case in which the project is likely to have significant effects on the environment.But the decision as to whether an Annex II project is likely to have such effects is left to the memberstate. It depends, as article 4(2) says, on whether the member states "consider" that the characteristics ofthe project so require. This must mean that in Annex II cases the member states are under an obligation toconsider whether or not an EIA is required. If this were not so, a member state could in practice restrict thescope of the Directive to Annex I cases simply by failing to consider whether in any other case an EIA wasrequired or not.

Article 10 (ex article 5) of the EC Treaty requires member states to "take all appropriate measures, whethergeneral or particular, to ensure fulfilment of the obligations arising out of this Treaty ..." In World WildlifeFund (WWF) v Autonome Provinz Bozen(Case C-435/97) [2000] 1 CMLR 149, 178, para 70 theEuropean Court of Justice said that it followed that it was for the authorities of member states to

"take all the general or particular measures necessary to ensure that projects are examined in order todetermine whether they are likely to have significant effects on the environment and, if so, to ensure thatthey are subject to an impact assessment."

The Court of Justice said, at paragraph 71, that the Directive confers directly enforceable rights upon citizens ofthe member state and in a case in which the discretion conferred by the provisions of the Directive had been exceeded(as by omitting altogether to consider whether an EIA should be required), individuals may rely upon theDirective before a court of a member state to obtain from the national authorities "the setting aside of thenational ... measures incompatible with those provisions."

The Regulations do not expressly impose upon either the local planning authority or the Secretary of State ageneral obligation to consider whether an application is a Schedule 2 application or not. Regulation 5 requires the planningauthority to express an opinion only if so requested by the applicant and regulation 10 requires theSecretary of State to notify the applicant that an environmental statement is required if it "appears" to him thatthe application is a Schedule 1 or Schedule 2 application, without imposing an express obligation to consider thematter. The prohibition upon the grant of planning permissions without an EIA in regulation 4(2) appliesexpressly only to "any Schedule 1 or Schedule 2 application". But, since the question of whether anapplication is a Schedule 2 application is primarily entrusted by regulation 2(2) to the Secretary of State, it is notdifficult, in order to make regulation 4(2) effective, to imply into that regulation an obligation upon the Secretaryof State to consider the matter. So to construe the regulation would be in accordance with the obligationof a member state under the principle in Marleasing SA v La Comercial Internacional deAlimentación SA (Case C-106/89) [1990] ECR I-4135, 4159, para 8, to interpret domestic law "as far as possible, in the light of the wording and the purpose of the Directive in order toachieve the result pursued by the latter".

If no reasonable Secretary of State could have considered that the club`s application was a Schedule 2 application,the judge would of course have been entitled to rule that no EIA could have been required. But MrElvin does not so contend. It is arguable that the development was an "urban development project" withinparagraph 10(b) of Schedule 2 and the conflicting evidence on the potential effect on the river is enough initself to show that it was arguably likely to have significant effects on the environment. In those circumstances,individuals affected by the development had a directly enforceable right to have the need for an EIAconsidered before the grant of planning permission by the Secretary of State and not afterwards by a judge.

8. Does it matter that an EIA would not have affected the decision?

I said in R v North Yorkshire County Council, Ex p Brown [2000] 1 AC 397, 404 that the purpose of theDirective was "to ensure that planning decisions which may affect the environment are made on the basis of fullinformation". This was a concise statement, adequate in its context, but which needs for present purposes to be filled out. TheDirective requires not merely that the planning authority should have the necessary information, but that itshould have been obtained by means of a particular procedure, namely that of an EIA. And an essential elementin this procedure is that what the Regulations call the "environmental statement" by the developer shouldhave been "made available to the public" and that the public should have been "given the opportunity toexpress an opinion" in accordance with article 6(2) of the Directive. As Advocate General Elmer said inCommission of the European Communities v Federal Republic of Germany (Case C-431/92) [1995] ECR I-2189, 2208-2209, para 35

"It must be emphasised that the provisions of the Directive are essentially of a procedural nature. By theinclusion of information on the environment in the consent procedure it is ensured that the environmentalimpact of the project shall be included in the public debate and that the decision as to whetherconsent is to be given shall be adopted on an appropriate basis."

The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fullyinformed decision on the substantive issue. It must have been adopted on an appropriate basis and thatrequires the inclusive and democratic procedure prescribed by the Directive in which the public, howevermisguided or wrongheaded its views may be, is given an opportunity to express its opinion on theenvironmental issues. In a later case (Aannemersbedrijf P K Kraaijeveld BV v Gedeputeerde Staten vanZuid-Holland (Case C-72/95) [1996] ECR I-5403, 5427, para 70), Advocate General Elmer made this point again

"Where a member state`s implementation of the Directive is such that projects which are likely to havesignificant effects on the environment are not made the subject of an environmental impact assessment,the citizen is prevented from exercising his right to be heard."

Perhaps the best statement of this aspect of an EIA is to be found in the UK government publication"Environmental Assessment: A Guide to the Procedures" (HMSO, 1989), p 4

"The general public`s interest in a major project is often expressed as concern about the possibility of unknownor unforeseen effects. By providing a full analysis of the project`s effects, an environmentalstatement can help to allay fears created by lack of information. At the same time it can help to inform the public on thesubstantive issues which the local planning authority will have to consider in reaching a decision. It is arequirement of the Regulations that the environmental statement must include a description of the project andits likely effects together with a summary in non-technical language. One of the aims of a goodenvironmental statement should be to enable readers to understand for themselves how its conclusionshave been reached, and to form their own judgments on the significance of the environmentalissues raised by the project."

A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that theoutcome would have been the same or that the local planning authority or Secretary of State had all theinformation necessary to enable them to reach a proper decision on the environmental issues.

Although section 288(5)(b), in providing that the court "may" quash an ultra vires planning decision, clearly confersa discretion upon the court, I doubt whether, consistently with its obligations under European law, the courtmay exercise that discretion to uphold a planning permission which has been granted contrary to theprovisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of theEC Treaty to ensure fulfilment of the United Kingdom`s obligations under the Treaty. In classifying a failure toconduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevantrequirement but as rendering the grant of permission ultra vires, the legislature was intending to confineany discretion within the narrowest possible bounds. It is exceptional even in domestic law for a court to exercise itsdiscretion not to quash a decision which has been found to be ultra vires: see Glidewell LJ in BoltonMetropolitan Borough Council v Secretary of State for the Environment(1990) 61 P & CR 343, 353 MrElvin was in my opinion right to concede that nothing less than substantial compliance with the Directive could enable the planningpermission in this case to be upheld.

9. Substantial compliance

The case upon which Mr Elvin relied for the submission that substantial compliance would do was Commission ofthe European Communities v Federal Republic of Germany (Case C-431/92)[1995] ECR I-2189. In thatcase the Federal Republic had failed to transpose the Directive into its domestic law by the stipulated date and had givenconsent to the construction of a power station without an EIA. It had however followed the proceduresrequired by its own Bundesimmissionsschutzgesetz or Federal Pollution Protection Law. Inenforcement proceedings under article 169 of the EC Treaty, the Commission conceded that, in complying with domestic procedures, the developer had in fact supplied all the information required by article 5(2) and Annex III of theDirective. It also conceded that the information had been made available to the public and that the public hadbeen given an opportunity to express an opinion in accordance with article 6. Advocate General Elmerconsidered and rejected the other points on which the Commission continued to maintain that there had been afailure to comply. He said, at p 2207, para 33, that "the procedure followed in this specific case complied with allthe requirements of the Directive".

Commission v Germany (Case C-431/92) in my opinion establishes that an EIA by any other name will do aswell. But it must in substance be an EIA. Can this be said of the procedure followed in the present case?
Mr Elvin says that the equivalent of the applicant`s environmental statement can be found in its statement of caseunder the Inquiry Procedure Rules, read (by virtue of cross-referencing) with the planning authority`sstatement of case, which in turn incorporated the comprehensive officers` report to the planning sub-committee, which in turn incorporated the background papers such as the letters from the National RiversAuthority and the London Ecology Unit and was supplemented by the proofs of evidence made available at the inquiry.Members of the public had access to all these documents and the right to express their opinions upon themat the inquiry.

My Lords, I do not accept that this paper chase can be treated as the equivalent of an environmental statement. Inthe first place, I do not think it complies with the terms of the Directive. The point about the environmentalstatement contemplated by the Directive is that it constitutes a single and accessible compilation,produced by the applicant at the very start of the application process, of the relevant environmentalinformation and the summary in non-technical language. It is true that article 6.3 gives memberstates a discretion as to the places where the information can be consulted, the way in which the publicmay be informed and the manner in which the public is to be consulted. But I do not think it allows memberstates to treat a disparate collection of documents produced by parties other than the developer andtraceable only by a person with a good deal of energy and persistence as satisfying the requirement to makeavailable to the public the Annex III information which should have been provided by the developer.

Secondly, the Regulations represent the way in which the United Kingdom has chosen to implement the Directive.This is not a case like Commission v Germany (Case C-431/92) [1995] ECR I-2189, in which theDirective had not been implemented and the court had to consider whether its terms had nevertheless beensatisfied. In the present case the Directive had been transposed into domestic legislation and there was afailure to comply with the terms of that legislation. In my view, a court should not ordinarily be willing to validatesuch an act on the ground that a different form of transposing legislation (e g by allowing an environmentalstatement to take the composite form put forward in this case) might possibly have also satisfied theterms of the Directive. I would accept that if there was a failure to observe some procedural step which wasclearly superfluous to the requirements of the Directive, it would be possible to exercise the discretion not toquash the permission without any infringement of our obligations under European law. But that is not the casehere. The Secretary of State did not comply with his basic obligation to consider whether the UK machinery for implementation of the Directiveshould be put in motion.

10. Conclusion

My Lords, I would allow the appeal and quash the planning permission and listed building consent granted by theSecretary of State.

LORD HOPE OF CRAIGHEAD My Lords, I have had the advantage of reading in draft the speeches of mynoble friends, Lord Bingham of Cornhill and Lord Hoffmann. I agree with them, and for the reasons whichthey have given I, too, would allow the appeal.

LORD HUTTON My Lords, I have had the advantage of reading in draft the speeches of my noble and learnedfriends, Lord Bingham of Cornhill and Lord Hoffmann. I agree with them, and for the reasons they give I,too, would allow the appeal.

LORD MILLETT My Lords, I have had the advantage of reading in draft the speeches of my noble and learnedfriends, Lord Bingham of Cornhill and Lord Hoffmann. I agree with them, and for the reasons they give I,too, would allow the appeal.

Appeal allowed with costs.

Solicitors: Richard Buxton, Cambridge; Treasury Solicitor.

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20011218

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Date of the Resource: 
Tuesday, June 6, 2000
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