|Judgments - Berkeley v. Secretary of State For The Environment and Others
The directly enforceable right of the citizen which is accorded by the Directive is not merely a right to a fully informed decision on the substantive issue. It must have been adopted on an appropriate basis and that requires the inclusive and democratic procedure prescribed by the Directive in which the public, however misguided or wrongheaded its views may be, is given an opportunity to express its opinion on the environmental issues. In a later case (Aannemersbedrijf P.K. Kraaijeveld BV v. Gedeputeerde Staten van Zuid-Holland (Case C-72/95)  E.C.R. I-5403, 5427, para. 70), Advocate-General Elmer made this point again:
Perhaps the best statement of this aspect of an EIA is to be found in the U.K. government publication "Environmental Assessment: A Guide to the Procedures" (HMSO 1989) at p.4:
A court is therefore not entitled retrospectively to dispense with the requirement of an EIA on the ground that the outcome would have been the same or that the local planning authority or Secretary of State had all the information 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 confers a discretion upon the court, I doubt whether, consistently with its obligations under European law, the court may exercise that discretion to uphold a planning permission which has been granted contrary to the provisions of the Directive. To do so would seem to conflict with the duty of the court under article 10 (ex article 5) of the EC Treaty to ensure fulfilment of the United Kingdom's obligations under the Treaty. In classifying a failure to conduct a requisite EIA for the purposes of section 288 as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires, the legislature was intending to confine any discretion within the narrowest possible bounds. It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires: see Glidewell L.J. in Bolton Metropolitan Borough Council v. Secretary of State for the Environment (1990) 61 P. & C.R. 343, 353. Mr. Elvin was in my opinion right to concede that nothing less than substantial compliance with the Directive could enable the planning permission 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 v. Germany (Case C-431/92)  E.C.R. I-2189. In that case the Federal Republic had failed to transpose the Directive into its domestic law by the stipulated date and had given consent to the construction of a power station without an EIA. It had however followed the procedures required by its own Bundesimmissionsschutzgesetz or Federal Pollution Protection Law. In enforcement 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 the Directive. It also conceded that the information had been made available to the public and that the public had been given an opportunity to express an opinion in accordance with article 6. Advocate-General Elmer considered and rejected the other points on which the Commission continued to maintain that there had been a failure to comply. He said (at p. 2207, para. 33) that "the procedure followed in this specific case complied with all the requirements of the Directive."
Commission v. Germany in my opinion establishes that an EIA by any other name will do as well. 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 case under the Inquiry Procedure Rules, read (by virtue of cross-referencing) with the planning authority's statement 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 Rivers Authority 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 them at the inquiry.
My Lords, I do not accept that this paper chase can be treated as the equivalent of an environmental statement. In the first place, I do not think it complies with the terms of the Directive. The point about the environmental statement 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 environmental information and the summary in non-technical language. It is true that article 6.3 gives Member States a discretion as to the places where the information can be consulted, the way in which the public may be informed and the manner in which the public is to be consulted. But I do not think it allows Member States to treat a disparate collection of documents produced by parties other than the developer and traceable only by a person with a good deal of energy and persistence as satisfying the requirement to make available 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)  E.C.R. I-2189, in which the Directive had not been implemented and the court had to consider whether its terms had nevertheless been satisfied. In the present case the Directive had been transposed into domestic legislation and there was a failure to comply with the terms of that legislation. In my view, a court should not ordinarily be willing to validate such an act on the ground that a different form of transposing legislation (e.g. by allowing an environmental statement to take the composite form put forward in this case) might possibly have also satisfied the terms of the Directive. I would accept that if there was a failure to observe some procedural step which was clearly superfluous to the requirements of the Directive, it would be possible to exercise the discretion not to quash the permission without any infringement of our obligations under European law. But that is not the case here. The Secretary of State did not comply with his basic obligation to consider whether the U.K. machinery for implementation of the Directive should be put in motion.
My Lords, I would allow the appeal and quash the planning permission and listed building consent granted by the Secretary of State.
LORD HOPE OF CRAIGHEAD
I have had the advantage of reading in draft the speeches of my noble friends Lord Bingham of Cornhill and Lord Hoffmann. I agree with them, and for the reasons which they have given I too would allow the appeal.
I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Hoffmann. I agree with them, and for the reasons they give I too would allow the appeal.